Saturday, June 17, 2006

What level of comfort would you expect in an underground home:

Seen on the Housing Bubble Blog: For Sale By Owner - The Ultimate Secure Home: Strategically located in the awesome San Juan mountains of Southwest Colorado, this patented steel-reinforced concrete earth home was built to withstand almost any natural or man-made disaster you can name. It is more secure, safe, and functional than any conventional house could ever be, yet still has a level of comfort that one might not expect to find in an underground home.

I highly recommend clicking on the link; a great second home for the paranoid, or very cautious, among us!

More on Sexual Orientation Discrimination and Other Forms of Discrimination:

The recent posts have led me to want to post some more about the relationship of sexual orientation discrimination to other forms of discrimination. I'll probably have a post directly focused on this next week. But in the meantime, I thought I'd float a related legal doctrinal argument that I've been thinking about for a while.

Federal antidiscrimination law, as we know, generally bans employment discriminate based on race, color, national origin, sex, and religion. (I say generally because there are some exceptions, but let's set them aside now.) It doesn't on its face ban sexual orientation discrimination; some state laws do, but at this point it's less than half the states.

The law does, however, go beyond simply banning religious discrimination — it also imposes on employers a duty of "religious accommodation." Even when the employer has a rule that is facially religious-neutral, and not designed in order to discriminate based on religion, it must give religious exemptions from that neutral rule to religious objectors, unless the exemptions would pose an "undue hardship." So, for instance, if an employer has a flat "no headgear" rule, designed with no desire to discriminate based on religion, it must exempt people who feel a religious obligation, or likely even a religious motivation, for wearing a yarmulke or a turban or some other religious headgear — again, unless the exemption would cause the employer undue hardship. (Where's the sexual orientation discrimination connection you ask? Hold on, we're getting there.)

This duty of religious accommodation applies even to job-related conduct (such as wearing religious headgear or religious jewelry, or in some cases — where no undue burden on the employer can be shown — to taking religious holidays off, not participating in performing abortions, and so on). It would even more clearly apply to off-the-job conduct: If an employer, for instance, disapproves of the killing of animals, and has a policy of firing employees who personally participate in the killing of animals even off the job, he must exempt those who are involved in religious sacrifices. (The "undue hardship" threshold is generally pretty low, but mere personal disapproval by the employer of the employee's behavior would not qualify.)

What's more, to qualify for the exemption (again, assuming no undue hardship can be shown by the employer), the employee must merely show that his religious belief is sincere. He needn't show that it's reasonable, that it's mandated by scriptural text, or that it's shared by all or even most of his coreligionists. It is also probably enough to show that the belief is religiously motivated, even if not religiously compelled. (Finally, though it's not necessary for my argument, note that many courts have held that deeply held secular conscientious beliefs are treated the same as religious beliefs.)

So let's say that Warren Worker is homosexual, and is involved in a relationship that the law doesn't treat as a marriage, but that his church (or his personal religious system) treats as a marriage. Let's also say that he believes that sex within that relationship is a sacrament, intended to implement God's will for him (Warren believes that he was born homosexual, and thinks that this indicates what God wants him to do), and important as a means of strengthening the sacred marriage relationship. I am not sure of this, but I am told that some religions — such as orthodox Judaism — do treat sex within traditional marriage as having religious significance, and being an implementation of God's will. Warren therefore sincerely asserts that he believes that having sex with his partner is his religious obligation, or is at least an act of deep religious significance.

Ed Employer has a general policy of firing or not hiring people who engage in homosexual behavior. That policy doesn't itself violate federal antidiscrimination law, and the state in which Ed's business is located doesn't ban such policies, either. But Warren, whom Ed is threatening to fire because Warren engages in homosexual behavior, claims a right to religious accommodation: Ed may not fire me for what is to me a religious practice — unless the practice imposes an undue hardship on him which it doesn't — just as he may not fire orthodox Jews for violating a no-headgear policy, Santerians for violating a no-killing-animals policy, Catholics for violating a no-drinking-alcohol-even-off-the-job policy, and so on.

Would Warren have a viable federal Civil Rights Act claim? I would think so, and if I'm right then the Civil Rights Act already prohibits discrimination based on employees' homosexual behavior, when the employees' behavior is religiously motivated (again, unless undue hardship on the employer is shown, which seems unlikely). The same would apply if the employee doesn't belong to an organized religious group, but can sincerely assert that his behavior is motivated by his understanding of God's will. And it would probably apply even if the employee says he's an atheist or an agnostic, but believes that sex with his life partner is part of his conscientious obligations.

Now this is well short of a flat ban on sexual orientation discrimination. Among other things, I suspect that many people can't claim a religious motivation for their sexual behavior, though some people can, especially if the behavior is part of a committed partnership (though the "committed partnership" limitation reflects just my guess of when people have such sincere beliefs that sex isn't only pleasant but religiously obligatory or at least religiously meaningful, and not any categorical legal distinction).

On the other hand, I suspect that this theory provides considerably more federal protection against discrimination based on people's homosexual behavior than most people would think exists. In particular, I suspect that many fans of religious accommodation law (including especially those who have urged that it be broadened, by lifting the "undue hardship" threshold above its rather low current level) would balk at this application of that law. Yet unless I'm mistaken, the legal argument here is quite sound. What do others think about it?

(One note: I'm using "sexual orientation discrimination" above interchangeably with "discrimination based on a person's sexual behavior," because that's what I suspect is usually involved in discrimination against homosexuals, and because that most crisply implicates the religious accommodation argument I describe above. If an employer is genuinely firing someone not because of his sexual behavior, but because of his orientation, in the sense of his sexual preference even in the absence of any behavior, the legal argument becomes somewhat more complex, since religious accommodation law protects religious behavior and not pure orientation. But the post is already long enough, so let me set aside that complexity for now, and deal with what I think is the more common scenario, and is at least a common scenario — an employer's firing an employee for the employee's sexual behavior, not just for the employee's preference that has never manifested itself into homosexual behavior.)

UPDATES: (1) Some commenters suggested that the claim I describe should be a loser because no religions actually endorse it. Let me stress again: Title VII has been interpreted as protecting (subject to the undue hardship constraint) religious conduct regardless of whether it's endorsed by an organized religious group. If someone has a sincere religious belief, it doesn't matter that the belief is shared by only a few (or even by no) other people. As a practical matter, I suspect that it's easier to persuade judges and jurors of the sincerity of a religious belief if the belief is familiar, and if you belong to an organized group that endorses this belief. But judges and jurors may be persuaded of your sincerity even if your belief is idiosyncratic (and in fact many people sincerely hold religious beliefs that differ from those of the religious denomination to which they ostensibly belong).

For an example of the kind of religious reasoning that some might engage in, see this item by Episcopalian minister Robert Warren Cromey:

I believe that same sex couples enter marriage and holy matrimony when they "enter into a life-long union, make their vows before God and the Church, and receive the grace and blessing of God to help them fulfill their vows." ...

Paul's words are that marriage is the sign of the mystical union between Christ and His church. The personal and sexual intimacy between the couples speaks of a deep connection, unity and bonding. That intimacy is a sign of our oneness with God and all creatures. The exhilaration of sexual and orgasmic union reflects the creative, intimate, and explosive character of divine energy available to all human beings. That intimacy happens to same sex couples as well as opposite sex couples. It is not dependent on procreation. It is dependent on robust sexual connection, trust, love and joy....

If someone sincerely believes this, and therefore concludes that God wants him to have sex with his same-sex life partner, and refusing to do that would be against God's will, then it seems to me that the religious accommodation argument I made above fully applies.

(2) Some commenters asked what would happen if the employer's own religious beliefs mandate discrimination against gays, but the employee's religious beliefs mandate engaging in gay sex with the employee's life partner. The answer turns out to be complex, since the rules for employees' religious accommodations from workplace rules don't mirror those for employers' (and others') religious exemptions from statutes, but let me just sketch the outline.

(a) Federal laws, including Title VII, are subject to the federal Religious Freedom Restoration Act (RFRA), which presumptively entitles people whose conduct is substantially burdened by a generally applicable federal statute to a religious exemption. If the law requires you to do something that your religion forbids, or forbids something that your religion requires, that's a substantial burden. But the presumption is rebuttable if there's a compelling government interest underlying the law, and if applying the law to the objector (notwithstanding his objection) is the least restrictive means of serving the interest. The question would then generally end up being whether requiring religious accommodations in such cases serves a compelling government interest (presumably one in protecting employees' ability to practice their religions); I suspect that most courts would say "yes," but it's not 100% guaranteed.

(b) Some states (about half) have similar state RFRAs that apply to state laws, or state religious freedom constitutional provisions that have been interpreted to presumptively mandate religious exemptions. If my hypothetical Warren Worker sues under a state employment discrimination law that requires religious accommodation, the analysis would then be the same as in (a).

(c) In other states, if neither a state RFRA nor a state constitutional accommodation requirement is available, the employer has no entitlement to a religious accommodation (unless he can somehow argue that the "undue hardship" requirement should be interpreted to cover substantial burdens on his religious practice). If the state's employment discrimination law requires religious accommodation, and Warren Worker sues under such a state law, then the employer has no religious accommodation claim vis-a-vis the law, but Warren has a claim vis-a-vis the employer.

(d0 Finally, all this applies only if the employer feels a religious motivation (or, depending on how the law is interpreted, a religious compulsion) to discriminate based on sexual orientation. For some employers, this may be present; for others, this may not be. (For instance, even some employers who think gay sex is wrong, and who therefore refuse to employ gays, may not be acting out of a sense of religious duty. They may think it would be religiously fine to ignore the employees' homosexuality, but might choose to discriminate against the employees nonetheless.)

(3) For some reason, I erroneously claimed that only about half the states currently ban sexual orientation discrimination; I meant to say less than half, and I have no idea why I misstated the matter. Thanks to commenter rmthunter for pointing out the error.


What's Up with South Asia?

There is a single corner of the world where nobody is paying the slightest attention to the World Cup -- what's up with that? It's not enough to say India and Pakistan don't have "soccer culture" -- China, and Korea, and Japan, and Thailand, and Togo, and Tunisia, and Saudi Arabia, and . . . didn't have soccer cultures, either, and they're now as soccer-mad as the best of them. But the billion or so Indians and Pakistanis could care less about the whole thing -- I don't even think they have national soccer teams. Something's going on, though I can't say I have the faintest idea what it is.


Friday, June 16, 2006

Why Ever Fire Public Officials for their Views?:

Many people, including some commenters on my most recent post, don't see why we should ever fire government officials because of their political and ideological views. Even if an official is a racist, homophobe, communist, etc., perhaps they should not be fired for this unless and until there is proof that their objectionable views affect their job performance. In some cases, this may well be the right approach - particularly if there is little opportunity for the official to implement his biased views or if the job is an important one and it is hard to find an equally competent replacement.

However, there is good reason to fire officials for their views in at least some situations. In some cases, the "wait and see" approach is simply too dangerous. For example, if a key CIA operative is revealed to be an adherent of Al Qaeda's ideology, it is theoretically possible that he will carry out his duties effectively despite his views (e.g. - perhaps he cares more about career advancement than about advancing his views). But given the grave risks involved, it would be foolish to wait and see. Even where matters of life and death are not involved, the costs of ignoring an official's views might still be high. For example, if we do not fire a racist official in a position to discriminate against African-Americans, he might take actions that expose the government to expensive liability suits and possibly poison the state's relationship with the black community. Even if he is later fired after the fact, the damage he has done might difficult or impossible to repair.

Along these lines, it is interesting that there is far less controversy about hiring officials based on ideological views than about firing. For example, nearly everyone takes it for granted that a Republican administration will appoint mostly conservative officials, while a Democratic one will appointly most liberals. The administration could engage in ideologically neutral hiring and later fire those officials whose views lead them to take actions contrary to the administration's agenda. But few would argue that that is the right approach to hiring in government. If this is true as to hiring, why not firing as well?

Not all officials with deeply objectionable views should be fired. Whether or not do so depends on the likelihood that they can cause serious harm, the difficulty of finding a competent replacement, and other similar considerations. But such firings should not be categorically rejected.

Since I am a professor at a state university, it is inevitable that some readers would like to know the implications of this argument for the hiring of academics at state institutions. In my view, ideologically neutral hiring is far more desirable in academia than in most other types of government employment because one of the functions of academics is to engage in wideranging debate and research, a function that would be undermined by ideological hiring criteria. On the other hand, the job of most other appointed officials is to implement laws enacted by the legislature or carry out the policy agenda of their elected superiors. Thus, for most government jobs, there are likely to be greater benefits and less harm from ideologically based hiring and firing than in the case of professors. Is that a self-interested distinction? Quite possibly. But I still think it's valid!


The Racism Analogy:

Various comments on my post below have raised the racism analogy -- if we wouldn't worry about the burdens that the civil rights movement have imposed on racists (or anti-Semites or what have you), why should we worry about the burdens that the successes of the gay rights movement may impose on those who are anti-gay?

Well, as I mentioned in my earlier post, one can certainly conclude that the burdens are justified; if that's so, then my point is still relevant, but only as a way to better "understand why those who do not value gay rights highly -- because, for instance, they believe that homosexual behavior is immoral and harmful to society -- would fight hard against expansions in gay rights, and resist claims of the 'It's none of your business whom I have sex with, so why are you objection to various gay rights proposals?' variety."

On the other hand, while I (as I said) support a good deal of gay rights claims, I'm far from convinced that opposition to homosexuality is quite comparable to racism. I hope to have somewhat more on this later (though not a vast amount, since I'm not sure how much beyond the obvious I can add to that debate). But it's not clear to me that, for instance, the Catholic Church should be viewed as tantamount to the Church of the Creator, or even to considerably less militant racist groups. It's likewise not clear to me that the Boy Scouts should be viewed as tantamount to a "whites-only Scouts." (I'm also pretty sure that many people, including those who, like me, oppose laws that would make homosexuality into a crime, oppose the exclusion of gays from the military, and support same-sex marriage, would say something similar.)

Perhaps, even if I'm right on this, the reason for this isn't some logical distinction between hostility to homosexuality and racial hostility, but rather just cultural history: Because the big battles over racism happened some decades before the big battles over gay rights, many otherwise decent groups and individuals still have a blind spot about homosexuality. Then, even if hostility to homosexuality and racial hostility are morally equivalent, those who are hostile to homosexuality may often be decent people who haven't yet caught up to the truth on gay rights, while racists are likely to be generally bad people altogether. Nonetheless, even if that's so, we might still be more concerned about burdening (even in constitutionally permissible ways) these often-decent-but-on-this-wrongheaded people's speech and religious practice than about burdening racist's speech and religious practice.

On the other hand, perhaps my tentative judgment on this is wrong; perhaps the Catholic Church and the Boy Scouts really are morally tantamount to racist organizations. But if that's so, then that just further explains the intensity with which many traditionalists are fighting the gay rights movement: If the essence of that movement is to suggest that traditionalist religious and social groups are morally tantamount to racists, those traditionalist groups have a great deal to lose (whether rightly or wrongly) in this particular culture war.


Conservatives, Libertarians, and Slippery Slope Concerns about the Gay Rights Movement:

Although I am skeptical about the particular example that occasioned it, I agree with Eugene's general point that some aspects of the gay rights agenda may pose dangers to individual rights that are important even to people who do hate gays or oppose the gay rights movement as such.

This poses a dilemma for libertarians (and some conservatives) who support the principle of equality for gays but worry about some of the potential slippery slope effects of victories for the gay rights movement. For example, I personally support gay marriage and the abolition of antigay discrimination by government. At the same time, I would oppose imposing similar antidiscrimination laws on the private sector, particularly on religious and civil society groups. And there is a nontrivial danger that those elements of the gay rights agenda that I support will, if adopted, lead to the enactment of those that I oppose.

However, I doubt that the right approach for those concerned about the civil liberties of people with antigay views is to oppose the gay rights agenda across the board. If you do not oppose A in and of itself, but are just concerned that it might lead to B, the right strategy to adopt will sometimes be to make a deal with the pro-A forces, pledging support for A in exchange for safeguards against B. This is an especially attractive approach if A is likely to be enacted sooner or later anyway, but the advocates of A need your backing in order to win sooner.

We seem to be in precisely this position with respect to the gay rights movement, which is highly likely to continue gaining ground, but cannot succeed quickly against determined and united opposition from the right. If conservatives and those libertarians who care more about the civil liberties issues than about gay rights oppose the gay agenda root and branch, then the gay rights movement will owe them nothing and will have no incentive to take conservative or libertarian concerns into account. The fact that most conservatives and libertarians either opposed the civil rights movement (as the National Review conservatives did) or were indifferent to it (as were many libertarians at the time) is one of the reasons why that movement took on such a left-wing statist cast. It is also one reason why most African-Americans support liberal statism even now. The conservatives (and to a lesser extent libertarians) of today are in danger of repeating the mistakes of their predecessors.

If, on the other hand, libertarians and those conservatives whose primary concern is the civil liberties impact rather than opposition to gays for its own sake support gay rights but make that support conditional on providing safeguards for civil liberties, there is a much better chance of a positive outcome for all concerned. In addition to the straightforward quid pro quo bargaining involved, homosexuals and their supporters are more likely to take conservative and libertarian concerns seriously if they do not regard the latter as implacable enemies.

Note that there are two distinct causal mechanisms at work here. One is pure interest-group bargaining: conservatives can persuade gay rights advocates to prevent B in exchange for support for A. But there is also a psychological dynamic under which gays and the political right could develop a more positive (or at least less negative) image of each other over time, thus making it easier to take each other's concerns seriously.

None of these points are likely to persuade those conservatives (and perhaps a few libertarians) who simply oppose gay rights across the board on the merits. But they should provide food for thought to those who generally support gay equality or are indifferent to it, but worry about its slippery slope effects.


Firing a Washington Metro Board Member for Anti-Gay Speech:

I share some of Eugene's concerns, expressed in his post below, that certain aspects of the gay rights movement (which I too generally support) may pose a threat to civil liberties.

But I don't think that the firing of Robert Smith, the Maryland appointee to the Washington Metro Board, for calling gays "sexual devian[ts]" is a good illustration of the point. Certainly, very few would argue that Smith should have kept his job had he referred to people in interracial relaionships as "racial deviants" or used derogatory language about blacks or Jews. And this would be true despite the fact that Smith's views on blacks, Jews, and interracial marriage have no more connection to his job than his views on gays. The political and social views of high-ranking officials often influence their policy decisions, and government could not function with even modest effectiveness if these officials could not chosen at least in part based on their ideological orientation.

Furthermore, it is not clear to me that Smith's views "have absolutely nothing to do with running trains and buses," as he claims. The DC area has a large gay population and many of them presumably take Metro "trains and buses." There is good reason to assume that a Metro Board member with Smith's views would be less likely to enforce policies against antigay discrimination in public transport than one who is not a homophobe. At any rate, since there is unlikely to be a shortage of nonbigoted people willing to take this cushy patronage appointment, Governor Ehrlich was right not to take a risk on Smith.

I will consider Eugene's broader point about the gay rights movement in my next post.


Washington Metro Board Member Dismissed for Anti-Gay Remarks in Same-Sex Marriage Debate:

The Washington Post reports:

Maryland Gov. Robert L. Ehrlich Jr. yesterday fired Robert J. Smith, his appointee on the Metro transit authority board, for referring to gay people as sexual deviants on a cable television show.

"Robert Smith's comments were highly inappropriate, insensitive and unacceptable," Ehrlich (R) said in a statement less than five hours after the controversy erupted during a Metro board meeting. "They are in direct conflict to my administration's commitment to inclusiveness, tolerance and opportunity." ...

Smith acknowledged after the meeting that he had referred to homosexuals as "persons of sexual deviancy" during a political round-table discussion on a Montgomery County cable show that was shown on Sunday.

"Homosexual behavior, in my view, is deviant," he said. "I'm a Roman Catholic." ... "The comments I make in public outside of my [Metro board job] I'm entitled to make," he said. His personal beliefs, he said, have "absolutely nothing to do with running trains and buses and have not affected my actions or decisions on this board." ...

The Metro directors oversee a $1 billion operating budget and nearly 10,000 employees. They set policy for the nation's second-busiest subway and fifth-busiest bus system....

Smith said he has been a regular panelist on the weekly political round-table show, "21 This Week," telecast on Access Montgomery cable Channel 21, for the past 12 years. He appears as a "Republican activist," according to Rodney Bryant, the show's producer.

On last weekend's show, Smith interrupted another speaker who was talking about federalism and Vice President Cheney's daughter. The speaker said Cheney's daughter, who is a lesbian, would not want the government interfering in her life, according to a recording of that portion of the show.

"That's fine, that's fine," Smith interrupted. "But that doesn't mean that government should proffer a special place of entitlement within the laws of the United States for persons of sexual deviancy."

It seems like Smith is the sort of high-level political appointee who can be fired for his speech -- including off-the-job speech on matters of public concern -- with no First Amendment constraints, and with no requirements that the government show any likely disruption that would be caused by the speech. (See generally Elrod v. Burns and Branti v. Finkel, which arise in the slightly different but closely related area of dismissal based on political affiliation.) And I think the Governor's decision may well have been quite sensible, not just as a matter of politics for the Governor but as a matter of public relations for the metro system and for Maryland government more generally.

Nonetheless, it seems to me that this shows that the gay rights movement -- which in many respects I support -- has indeed led, and is likely to continue to lead, to nontrivial burdens on people who hold and express traditional religious views that condemn homosexuality: Here, the firing from a government job that really does have relatively little to do with gay rights matters; in other cases, dismissals by private employers for anti-gay speech; in other contexts, burdens on religious institutions' ability to refrain from assisting conduct (for instance, adoption by same-sex couples) that they think is morally improper; in still others, the exclusion of the Boy Scouts and other groups that discriminate based on sexual orientation in the course of trying to convey their anti-homosexuality message (something that I've argued is a constitutionally permissible burden, but a burden nonetheless).

These burdens might well be justified. Also, on balance they are far less than some of the burdens that gays have had to labor under in the past (such as the threat of prison time for their sexual behavior), and are likely less than even the burdens that gays have to labor under today (such as the threat of being fired for their sexual conduct, in some states prohibitions or restrictions on adopting children, the inability to get permanent residence and U.S. citizenship for one's life partner when heterosexuals can get this important benefit as a matter of course, and so on).

Nonetheless, it seems important to recognize that unfortunately the securing of greater rights to some leads to (not inexorably, but practically) the decrease in the rigths of others. And it helps us understand why those who do not value gay rights highly -- because, for instance, they believe that homosexual behavior is immoral and harmful to society -- would fight hard against expansions in gay rights, and resist claims of the "It's none of your business whom I have sex with, so why are you objection to various gay rights proposals?" variety. The broad gay rights movement, which goes beyond just demanding freedom from legal punishment for homosexuality and equal access to public benefits, does intrude (whether justifiably or not) on others' business, and resisting the movement then in turn becomes those other people's business.

Thanks to reader Mike Chittenden for the pointer to the newspaper article.


Another Reason to Love the World Cup, Continued

I feel like I unleashed a real torrent with my earlier posting about the manifold joys (not shared by all commenters, to put it mildly!)of the World Cup. Naysayers should watch the first five minutes of today's Argentina-Serbia&Montenegro match for a perfect illustration of what I had in mind. Argentina scored a truly magnificent goal -- 12 separate passes in the offensive third of the field, a beautiful slow build-up to the final charge into the box (an Argentine defender, who saw an opening and burst into it) and the great finish. [the second goal, with TWENTY-FOUR PASSES leading up to the finish, was even more magnificent).

The usual pile-up celebration followed; but what was really great was the shot of two of the Argentine players, a defender and the goalkeeper, away from the pile-up; the emotion that poured out of them visible on their faces was pretty intense -- there's not much else one ever can see on TV that touches it. If you think (as many do, with lots of justification) that big-time sports is too often just about the money, see if you can find a replay.


Rapanos, Wetlands & State Regulation:

A commenter on my last Rapanos-related post feels that I did not respond adequately to the concern that state efforts will be inadquate were the Supreme Court to narrow the scope of federal wetland regulation in Rapanos and Carabell. In this follow-up post, I will try to address this issue in greater detail (and point readers to articles in which I make some of these arguments in greater detail).

First, the fact that "only half" of states have wetland programs does not provide evidence that states would not protect wetlands in the absence of federal action. In fact, given the history of wetland regulation, I believe it suggests the opposite. State regulation of wetlands began in 1963, when Massachusetts adopted the first state wetland protection statute (which was itself modeled on preexisting local wetland protections). At this time, the federal government was not protecting wetlands. To the contrary, it was still subsidizing their destruction through various federal programs.

By the time the federal government got around to regulating the filling of wetlands in 1975, every coastal state save Texas had a wetland protection statutes on the books, and eleven states had freshwater wetland protection programs. The federal government did not lead the way in protecting wetlands. It was dragged along behind the states. Indeed, the U.S. Army Corps of Engineers only began regulating wetlands after it was told to by a federal court. [I recount this history in some detail in my article "Wetlands, Waterfowl and the Menace of Mr. Wilson, 29 Env. L. 1 (1999).]

Second, it is alleged that states are unlikely to protect wetlands because "there are pressures in local communities for land development that keep [state and local] guidelines from being as rigorous." Relatedly, some contend that the pressure to compete with other states for economic development will discourage states from adopting costly environmental measures. This "race to the bottom" argument is familiar, but it is also undermined by the empirical evidence. The pattern of state regulation prior to federal involvement is the exact opposite of what the RTB theory would predict. Those states with the most wetlands, measured as a percentage of their land area, should have been the least likely to regulate. Yet they regulated first. Indeed, every state in the continental U.S. with more than ten percent of its land area classified as wetlands regulated prior to 1975. Moreover, many states contain wetland protections that are more extensive, expensive, and ecologically minded than the federal program. [I have more to say about the alleged RTB here, as well as in the article cited above.]

The available evidence is even more suggestive when one realizes that the incentive for states to adopt their own wetland protections dropped dramatically once the federal government got into the act. In simple economic terms, the net benefits of adopting such programs declined to the extent that federal regulation served as a substitute for state regulations. Even those states that, today, demand greater levels of wetland protection than the federal government provides may be discouraged from adopting new programs by the existence of the federal regulations. [I have much more to say on this potential "crowding out" effect of federal regulation in this draft paper on SSRN.]

No one can say for certain what states (and local governments and non-governmental conservation groups) would do were the federal government's regulatory authority limited by the Court, but I do believe the evidence suggests that states, on the whole, would be significantly more active than they are today. As I noted in my last post, after the Supreme Court's 2001 SWANCC decision, it appeared that the federal government’s CWA jurisdiction would limited substantially. In this period, numerous states began to consider new measures to fill the gap. In some states, such as Ohio, these measures were adopted. Within short order, however, it became clear that both the federal government and most lower courts would read SWANCC narrowly, so the need for greater state efforts was less clear. Nonetheless, when it looked like greater state action was necessary, states appeared ready to respond (even if they would have preferred action at the federal level).

All of this does not mean that a curtailment of federal regulation will have no effect on wetland protection. But I believe it does show that the actual reduction in actual wetland protection caused by limitations on federal jurisdiction will be less than many fear. If greater attention were paid to the interrelationship between federal and state regulation, and more focus were placed on encouraging state-level, as well as localized and non-governmental wetland protection efforts, we could achieve greater levels of environmental protection at lower economic and social cost. There are many reasons to be dissatisfied with federal regulation, not least its poor record at delivering the environmental goods. If Rapanos and Carabell such regulation, I hope they will spur new efforts to consider possible alternatives.

In the end, it is important to look at the broader context. I would be the last person to claim that state regulation is perfect. But federal regulation is far from ideal as well. Indeed, I could cite dozens of environmental analysts lamenting the inadequacy of federal wetlands regulations -- the same regulations that some seem to suggest are the only things preventing utter ecological devastation. The relevant question is not whether a given balance of state and federal authority produces the desired level of environmental protection -- for many of us, that is unlikely to ever be the case -- but which institutional arrangement maximizes the combination of environmental protection and other values that are important to us. So, the relevant question is not "will [states/feds/others] do a good job," but which is best (or, perhaps, least worst).

Post-Script: One point I did not address is the concern about interstate pollution. In this context it is largely a red herring. Federal wetland regulation has little to do with the control of interstate pollution spillovers. And while a decision limiting this program will have some effect on other parts of the CWA, it need not have much (if any) effect on federal efforts to control interstate water pollution. If there is interest, I can explain in greater detail in a subsequent post.


Thursday, June 15, 2006

"There's Always Some Other Business Model":

A conversation that I had yesterday reminded me of something I posted nearly three years ago; since the issue still seems salient, and since the original post was in the pre-comment era of this blog, I thought I'd re-post the item and see what people think about it.

One argument I’ve often heard against intellectual property is that “there’s always some other business model.” If you can’t make money selling the work, because people can copy it for free, no problem: You just need to find some other way to make money — tie-ins, product placement, and so on.

For instance, say that virtually all TV viewers start using a hypothetical new technology (just to make up a name for it, let’s call it ViTo) that lets them watch all programs (cable or broadcast) for free, and lets them seamlessly skip commercials. Pro-I/P argument: This will mean much less incentive to create new works, and thus much less new TV programming. Anti-I/P argument: No problem; there’s always some other business model. Shift from advertising and pay TV to, say, product placement (advertising Coke by having Coke cans appear as props in the show, or praise of Coke appear as part of the dialog) — that will provide the revenue needed to make people invest in making more programming.

This argument does have some merit, in rebutting the extremist pro-I/P argument that “If it weren’t for intellectual property, we’d have zero new works being created.” Like most predictions that contain the words “zero,” “always,” or “never,” this is mistaken: Some people will find some ways to make some money from the works even without intellectual property, and others will do it without a profit motive (consider blogs, for example). The extremist argument has always been hyperbole, not reality. But this leaves the moderate pro-I/P argument that “If it weren’t for intellectual property, we’d have much less investment in new works” — and the “there’s always some other business model” argument isn’t really much of a response to that.

1. How effective will the other business model be? To begin with, the other business model might be able to raise a lot less money than the intellectual property model can. I’m not an advertising expert, but my sense is that product placement isn’t effective for all products; and when it is effective, it isn’t as effective as traditional advertising. One piece of evidence for that: While some product placement is going on, most advertisers still prefer traditional advertising. If product placement were that cost-effective, then we’d probably (not certainly, but probably) be seeing a lot more of it.

Right now, there are several possible income streams for television: For instance, advertising, subscriptions, product placement, charitable funding, and on-air fundraising from viewers. If advertising and subscriptions are no longer options, the other streams may provide some revenue. But there’s no reason to think they’ll provide anywhere near as much. The result may be much less investment in production of original TV programs.

2. What will be the side effects of the business model? But even if product placement will provide enough revenue to produce some TV programs, how will those programs be different from the current ones? Upside: They won’t be interrupted by commercials (since those will be pointless). Downside: Their content will have to change considerably — plots will start revolving around products; the decor will be changed to contain more products; production investment will shift to those sorts of shows that offer more product placement opportunities.

And consider a particular kind of show: TV news. Do you really want product placement in TV news? Perhaps there’s a bit of it going on in some situations, though my understanding is that such coverage-for-advertisers deals are still considered unethical in news shows. But if advertising and subscription revenue are no longer options, and product placement is pretty much the whole game, such product placement will become routine; news programs will cover those “news” stories that benefit some company (either a company that’s being positively covered, or a leading competitor of a company that’s being negatively covered) that’s willing to pay them. Hey, it’s a business model. It’s just not one that’s very good for viewers.

(Incidentally, I understand that many TV news programs already lose money for the network, but the network is willing to fund them to preserve its reputation, or because of social or government pressure. But that will become much harder if advertising and subscription revenues dry up, and the programs start losing much more money.)

3. Would we buy this argument for other products? Say that lots of people are shoplifting from a store, to the point that others are starting to think that it’s OK to steal from stores. We could tell the store owner: “Don’t whine to us about that, or demand government intervention to protect your supposed property rights; choose another business model that isn’t harmed by shoplifting! Start carrying only promotional goods with lots of logos, which some advertisers will pay you to carry. Or just rely on the voluntary contributions of paying customers. In any case, come up with something, don’t demand government help in the form of police or courts.”

I don’t think we would, because we’d realize that (1) the other business models may be much less effective, and if stores have to shift to those models, there’d be many fewer products sold, and (2) the other business models may have undesirable side effects, for instance that consumers could only get goods with product placement (promotional slogans), since those are the only goods that stores will be able to carry. Rather, we’d think that the store owner should be protected by the government — by having the legal system enforce property law — from consumer infringement of its property rights.

Now of course one can argue that tangible property is different from intellectual property, for instance because it’s nonrivalrous; I won’t get into that debate now. But the store example shows that the argument that “there’s always some other business model” doesn’t really carry independent weight. Once you conclude that the seller has no legitimate property right in some kind of property (whether television programs or clothing), you can then pooh-pooh its claims by saying “there’s always some other business model.” But what’s doing the work in that argument is your initial rejection of the seller’s property right claim — not your argument about other business models.

UPDATE: Glen Whitman (Agoraphilia) comments.


New York State Court Judge Who Helped Suspect Escape Removed from Bench:

Here's the decision; thanks to How Appealing for the pointer. The dissent (with which I disagree) captures the facts well:

On June 10, 2004, Justice [Laura] Blackburne was informed that a police officer was present who wished to speak with a defendant who had been referred to a drug treatment program. She was subsequently informed that the officer was there to arrest the defendant. She was not informed what the arrest was for. She directed a court officer to escort the defendant from the courthouse to avoid being arrested in the court. [Note: The court officer was told to just release the defendant, and not to turn him over to the would-be arresting officer's custody outside the court. -EV] She stated on the record that she was not trying to prevent the arrest but was acting because she felt that she had been misled.

The majority, I think, is quite right to conclude that this misconduct was serious enough — I would say even criminal obstruction of justice, since it involved giving a suspect active help in avoiding arrest — to warrant removal from the bench, even based just on this one incident.

The dissent argues that a lesser penalty should be imposed, based partly on the judge's past "outstanding" record. But my sense is that a judge who misbehaves this seriously needs to be removed from the bench (in a state such as New York which allows such removal for the judge's not being "faithful to the law"), and that the majority analysis is therefore quite right. And though there was no specific precedent on point about the propriety of this sanction, "That until now no judge has thought to prevent the lawful arrest of a suspected felon cannot shield petitioner from the necessary consequence of her actions."


World Cup

As I am hardly the first to observe, Americans are finally catching on, this World Cup season, to soccer. It's not only that the TV ratings are soaring -- it's that they (i.e., we) are finally developing the kind of passion for the game that everyone else in the world seems to have by genetic endowment . The fact that so many people are pissed off about the national team's miserable performance last Monday against the Czechs is, perhaps paradoxically, a sign of this; we played miserably in 1990 and 1998, too, but not only did few people in the country care, few even really understood how badly we had played, because few people really understood the difference between good play and bad play. [It's why US coverage always focused almost exclusively on stories about soccer hooligans and soccer riots -- sports reporters and correspondents never knew enough about the game itself to say anything intelligent about it. Listen to Brent Musberger on the ESPN pre-game show to hear what I mean; he hasn't the faintest idea what's going on on the field, and nothing to say about the games].

I watched Monday's in a filled-to-the-gills bar in Washington DC, and, having just come back from four months in Italy where I watched a lot of soccer and where, obviously, I was among some of the world's greatest and most knowledgeable soccer fans, I can tell you that we're finally becoming real soccer fans. Which means we will despair -- like the Ukrainians are now despairing, and the Poles, and the Costa Ricans, and the Swedes -- when our teams fail us.

And if you're looking for reasons that the World Cup is something special -- unique -- in the world, watch Costa Rica v. Poland next Tuesday. Both teams have lost their first two matches, and neither can progress into the tournament's second round; after Tuesday's game, they go home. It would seem to have the makings of a really lousy match -- Kansas City Royals v. Tampa Bay on a hot late-August afternoon: nothing to play for, nothing at stake. Worse, even; soccer is a game of will, of charging down the field over and over and over again even though the chances that any one charge produces a goal is cruelly small; where are the players going to find drive and desire for 90 minutes of intense effort with "nothing at stake"?

In fact, of course, there's lots at stake - that's what makes this the World Cup, and why I can virtually guarantee you that it will be a terrific match, full of passion and intensity, the stadium filled with supporters, each teams' last chance to show its fans and the world that it deserved to be here, that it's worthy of all the high hopes that had been bestowed on them. Go Ticos!


New Supreme Court Decision: [Oops, I just saw that Jon Non-Juan beat me to it by a few minutes in his post below. Er, what he said.]

  The Supreme Court handed down its decision in Hudson v. Michigan this morning. This was a re-argued case that considered the remedy for violations of the rule that the police normally must knock and announce their presence before executing search warrants.

  I have posted some thoughts on the case over at

Hudson v. Michigan:

The big decision of the day was that in Hudson v. Michigan. The "knock and announce" case produced a 5-4, conservative-liberal split. Lyle Denniston summarizes the case here. Orin has several posts on the decision over at that other site of his.


Like, You Know, Whatever:

A reader writes:

A question for you (and perhaps other profs) arises from what used to be my extensive daily contact with undergraduates. As you know, a high percentage of them these days have their speech laced -- and in some cases saturated -- with "like" and other fillers.

Listening to them, I sometimes get an image of one of them getting through law school, and the first time he presents an oral argument in an appellate court, an annoyed senior judge interrupts to ask him a question such as, "Is your assertion that the sentence was *actually* cruel and unusual, or just that it was, as you said, "*like* cruel and unusual"?" Or perhaps a judge reacts to every "y'know" or "know what I'm sayin'" with "No, I don't know--that's why you're here to explain it." (The fact that I, as a judge, would do such things, and derive sadistic pleasure from it, is one of roughly 12 million reasons that I will never be appointed to the bench.)

You must have students who have really terrible speech habits. What, if anything, do you do about it, as one who demonstrably cares about language? Do law students learn fairly quickly and easily to suppress their verbal tics?

If so, is this because the professors point out the mannerisms, because other students do, or do they just automatically become more aware of it because of the (presumably) increased amount of public speaking and classroom contribution they're required to do? Are there professors who are notorious for needling students about such things, good-naturedly or otherwise? If so, is the needling effective, or just embarrassing?

A very interesting question; I wanted to pass along some of my own thoughts, and ask you to comment on it further.

(1) I've known a few twentysomethings -- including one who was very smart and accomplished -- who have used "like" and "you know" so often that it's jarring to me. But I don't recall any of my students doing it in class. Occasional "like"'s and "you know"'s are not uncommon, just as "um"'s and "er"'s are for others; but they're not to the level of lacing or saturating.

(2) If a student did this, I wouldn't point it out in front of the whole class. I'm not hesitant to gently correct student errors; that's part of the educational process, both for the student and for classmates. If, for instance, a student who's asked how he'd argue that speech is constitutionally unprotected says, "I'd argue that this case is like a fighting words case," and it turns out that the case is a fighting words case, I'll point out that there's no need to suggest a similarity when one can suggest identity -- lawyers who are crafting arguments should learn to craft them as precisely and forcefully as possible.

But if the student had said, "I'd, like, argue that, you know, this case is, like, a fighting words case," I wouldn't correct him the same way. Such habitual use of "like" and "you know" strikes me as more a form of speech impediment than an error -- sufficiently hard to control that an in-class admonition would likely be especially embarrassing to the student (since it's a comment on a bad habit rather than just a specific error), and not terribly productive (since the habit is hard to control).

Nor do I share some people's view that such speech tics are indicative of sloppy thinking, or otherwise a sign of poor character or intellect. I'd treat such tics as similar to someone's having a mild stutter, or a Brooklyn accent (especially if in one's circle such an accent is seen as somewhat embarrassing rather than funny) -- not something to publicly berate.

(3) Nonetheless, the tics are distracting and annoying; and even if they aren't an indication of intellectual weakness, some people will likely see them that way, even if unfairly. Moreover, I suspect that it's possible to try to do something about them (more on this in a moment), and that some people are unaware how frequent their tics are and how annoying they can be. Since I think it's part of the law professor's job to give students professional advice, I might therefore gently mention this to the student outside class, especially if I've gotten to know the student.

(4) As I've suggested, one question that drives the others is whether in fact such tics are controllable. I'd think they'd be very hard to control, precisely because they're unconscious. On the other hand, I do know (though not very well) one person who had such a tic into his twenties, was gently admonished, and some time later no longer had the tic; so unless I'm misunderstanding or misremembering the situation, I think there is something to be done. And, as a practical matter, it's something that's much worth doing, for the reasons I mentioned in item 3. Can anyone speak to that, either pointing to ways in which can people ditch the tics, or to evidence that that's impossible or at least very hard?


Interesting Lineups:

Two of today's Supreme Court decisions have quite interesting lineups. In Howard Delivery Services v. Zurich American Insurance Co., a bankruptcy case, Justice Ginsburg wrote the majority for herself, the Chief Justice, and Justices Stevens, Scalia, Thomas, and Breyer. Justice Kennedy dissented, joined by Justices Souter and Alito.

Empire Healthchoice Assurance Inc. v. McVeigh, a section 1331 case arising in the health insurance context, produced a very similar lineup. Justice Ginsburg again wrote the majority, for herself, the Chief Justice, and Justices Stevens, Scalia, and Thomas. Justice Breyer dissented, joined by Justices Kennedy, Souter, and Alito.

Not only are these divisions somewhat unusual, but they are also interesting in that near identical splits occurred in both cases, despite the different questions at issue. Given that I know very little about the subject matter at issue in either case, I will leave it to others to explain why the justices divided along these lines and what, if anything, this tells us about the future of the Roberts Court.

UPDATE: The Bankruptcy LItigation Blog has a post on plain meaning, the bankruptcy code, and the lineup in Howard Delivery Services that is quite interesting (by bankruptcy law standards -- a subject about which I know nada).

Related Posts (on one page):

  1. Scalia v. Alito:
  2. Interesting Lineups:

Moral Philosophy by Backward Induction Lots of good stuff over on Agoraphilia by Glen Whitman and Tom Bell. I was especially taken with this post by Glen, entitled Moral Philosophy by Backward Induction. Here's the gist:
In intellectual circles, we usually regard moral philosophy as preceding political philosophy. We therefore address these two questions either (a) separately, or (b) in that order. We decide who constitutes a moral person – whose rights or interests therefore deserve consideration – and then we talk about the political status of such persons. But in practical politics, I think people consciously or unconsciously answer these questions using a kind of backward induction, considering political status first and then moral personhood. That is, they begin by asking what rights, privileges, and powers will be accorded to persons within a political system, and then (taking the previous answer as given) they decide who ought to be regarded as a person and to what extent.
(BTW, this is just a particular example of the more general point he is making.) I might add that this is one of the reasons why my contracts casebook starts with remedies, an organization first pioneered by Lon Fuller in his path-breaking 1940's casebook , Basic Contract Law. Most students thing one should start with contract formation (mutual assent + enforceability) before studying remedies, and most casebooks reflect this organization. But knowing what the consequence is for finding someone liable for breach of contract will influence what we think it should take to make a contract.

Stop Playing So Well, Harrison Bergeron!

The AP reports:

Any Connecticut high school football coach who runs up the score in a game now runs the risk of being suspended. The football committee of the Connecticut Interscholastic Athletic Conference, the state board that governs high school sports, has adopted a "score management" policy to keep teams from winning by more than 50 points.

The rout is considered an unsportsmanlike infraction and, beginning this fall, the head coach of the offending team will be disqualified from coaching the next game, said Tony Mosa, assistant executive director of the Cheshire-based CIAC.

"We were concerned with any coach running up the game. There's no need for it," Mosa said Wednesday. "This is something that we really have been discussing for the last couple of years. There were a number of games that were played where the difference of scores were 60 points or more. It's not focused on any one particular person." ...

Football committee chairman Leroy Williams ... formerly coached high school in the city and remembers well the beatings his teams were handed. He recalls being down by 54 points in one game and having the opposing team line up for an onside kick after scoring.

"Try to explain that to kids," Williams said. "When you get someone down, you don't have to kick them. The key thing to remember is, it's about the quality of the game. It's about teaching kids right from wrong. It's about the game of life and that's how we had to look about it."

The problem, it seems to me, is quite real: It is indeed dispiriting and embarrassing to be so badly beaten. One possible solution (which the story describes, but which wasn't adopted) is to stop the game when the score gap gets too large. Another is to split the league into divisions in each of which the teams would be more closely matched, though that might not work well for a small league. There are other reasonable alternatives as well.

But the solution of requiring the winning team to essentially stop competing effectively strikes me as worse than the problem. As the Laissez Faire Books blog points out,

[I]f the players of a team, after having gotten 50 points ahead in a game, suddenly begin moping about the field, carefully abstaining from scoring a single further point, the players on the losing team are going to know why.

They are going to know, first, that they are playing lousy compared to the other team. They're going to know, second, that the official rules of the game now declare that beyond a certain point they must be deemed to be playing so lousy that their opponents must be officially hobbled lest the members of the lousy team be humiliated further. And it is an elementary law of psychology that the knowledge that you are being officially declared irremediably lousy by the very rules of the game is not going to cheer you up. "We're such lousy losers that we can't even be allowed to play an honest game in the fourth quarter," is what all the players on the losing team will be thinking.

Some of the same persons on the Connecticut Interscholastic Athletic Conference proposing the penalty for too-success coaching have also opposed a "run out the clock" rule (i.e., a rule that would finish the game faster if one team is being pulverized by outlawing any more time-outs). According to the AP, "Mosa [an assistant executive director of the Connecticut Interscholastic Athletic Conference] said committee members believed the clock rule would be unfair to junior varsity players who likely would be on the field during lopsided games." But why is it unfair to impair players under a run-out-the-clock cure for the agony of defeat but not under a cure in which a winning coach will be punished if his players continue to play their best? Whether or not such a clock rule is justified, it would, obviously, at least allow all players on both sides to continue doing their best, under the same rules, and without arbitrarily penalizing coaches....

UPDATE: Some commenters defend the new rule on the theory that a coach who's winning by 50 points ought to send in his second- or third-string players, which will make the contest more even and give his weaker players some game time. That's a sensible approach, and one of the "other reasonable alternatives" I mention. Among other things, it would at least involve each player trying to do his best, though it would now be weaker players doing that.

But that's not what the rule calls for; according to the article, the rule generally prohibits "run[ing] up the score." If team A is losing by 50 points to team B's first string, it's eminently possible that team B's second or third string will still keep scoring touchdown after touchdown against A. (Some commenters in fact reported such experiences from their own lives.) Are B's second string players now supposed to spend their rare game time playing deliberately weakly, for fear that if they play their best they'll be "run[ing] up the score"?

Others suggested that the winning team ought not be allowed to use onside kicks or to throw "forward passes of more than 30 yards." That I just don't buy, for the reasons mentioned above. But even beyond this, if A is losing by 50 points, it's probably not because of onside kicks (though maybe because of forward passes). Ban onside kicks, and the other side will still score a lot -- unless they are indeed required to basically just not try to score.


A Linkable Federalist Papers On-Line: Now here's a nice on-line resource brought to the web by Edward O'Connor. A version of the Federalist Papers to which it is easy to link.
Of course, there are various webbed versions of the Federalist Papers on the Internet already. . . . Unfortunately, I haven’t been able find one that was simultaneously nice-looking and useful (useful insofar as pinpoint linkability is concerned, at least). There are some that provide fine-grained linking, but frankly they look like Fisher-Price My First Website.

So I went ahead and made, an online edition of the Federalist Papers which is pleasant to look at and provides paragraph-level permalinking.

Web geeks might be amused to know that each paper is marked up in the hAtom microformat with an elastic layout, so (among other things) you should be able to increase or decrease your browser’s font size and things will still look good.
Try it out.

Civil Rights Commission Hearing on Affirmative Action in Law Schools:

This Friday, open to the public. I'll be one of the speakers. Here are the details:

Civil Rights Commission To Examine Affirmative Action in Law Schools

6/12/2006 5:37:00 PM


To: National Desk, Legal Reporter

Contact: Manuel Alba of U.S. Commission on Civil Rights, 202-376-7700

News Advisory:

Civil Rights Commission To Examine Affirmative Action in Law Schools

Commission to Examine Proposed ABA Diversity Standards and Explore Whether Racial Preferences Harm Black Students

WHAT: Meeting of the U.S. Commission on Civil Rights, an independent, bipartisan agency charged with monitoring and protecting civil rights

WHEN: Friday, June 16, 9:30 a.m.


U.S. Commission on Civil Rights

624 Ninth Street, N.W., Room 540, Washington, D.C.


A panel of experts will advise the U.S. Commission on Civil Rights regarding the appropriateness of the American Bar Association's Equal Opportunity and Diversity Standard 211, and its accompanying interpretations. Standard 211 seems to require law schools seeking accreditation from the American Bar Association to practice racial preference in hiring or admissions irrespective of any federal or state laws limiting such policies. Speakers will also address whether the costs of racial preferences to African Americans outweighed the benefits.

The speakers are David Bernstein, George Mason University School of Law; Richard O. Lempert, University of Michigan Law School; Richard Sander, University of California at Los Angeles School of Law; and Steve Smith, chair, American Bar Association, Council of the Section of Legal Education and Admissions to the Bar. A briefing agenda follows:




A meeting agenda follows:











The U.S. Commission on Civil Rights is an independent, bipartisan agency charged with monitoring federal civil rights enforcement. Members include Chairman Gerald A. Reynolds, Vice Chairman Abigail Thernstrom, and Commissioners Jennifer C. Braceras, Peter N. Kirsanow, Arlan Melendez, Ashley L. Taylor, and Michael Yaki. Kenneth L. Marcus is Staff Director. Commission meetings are open to the media and general public.

Wednesday, June 14, 2006

Uplifting Thoughts from the Emperor Marcus Aurelius:

Whenever I feel really depressed, I turn to Marcus Aurelius' Meditations to brighten up my day. Marcus Aurelius was Emperor of Rome in 161-80, and a philosopher to boot. Being Emperor wasn't as much fun for Marcus as you might think. Some examples of his happy thoughts:

Begin each day by telling yourself: Today I shall be meeting with interference, ingratitude, insolence, disloyalty, ill-will, and selfishness.

- Meditations, Bk. II, Para. 1.

[L]ook at the characters of your own associates. Even the most agreeable of them are difficult to put up with; and for that matter, it is difficult enough to put up with one's own self.

-Meditations, Bk. V, Para. 10.


Great Moments in Career Planning - Adventures in Treesitting:

One of the participants in the protest against shutting the down the LA urban garden is "tree sitter Julia Butterfly Hill." During my wild and crazy youth, I worked as a babysitter, catsitter, dogsitter, and even rabbitsitter. The best-behaved were the rabbits, followed by dogs, cats, and humans in that order. But somehow I missed out on all those lucrative treesitting opportunities!

Related Posts (on one page):

  1. Great Moments in Career Planning - Adventures in Treesitting:
  2. Daryl Hannah, Property Rights, and "Urban Gardens":

"Under God" Anniversary:

Fifty-two years ago today (which is also "Flag Day") the phrase "under God" was added to the Pledge of Allegiance. [Thanks to a reader for the tip.]


On Having Children:

I much liked this piece on the subject in Slate, by Emily Yoffe.


Another UC Law School?

Brian Leiter reports that the University of California, Riverside is renewing its effort to establish the fifth law school within the University of California system, and (according to the proposal) a "first tier" law school at that.


Fighting Trans-Fats in Court:

On Monday, the Center for Science in the Public Interest filed a class-action suit against KFC to force the fast-food chain to eliminate (or at least disclose) its use of partially hydrogenated oil — described by CSPI as "the chemically altered, trans-fat-laden oil that kills roughly 50,000 Americans per year." The suit, filed in District of Columbia Superior Court, alleges that KFC's use of partially hydrogenated oil without explicitly informing consumers violates D.C.'s local consumer protection laws.

"Grilled, baked, or roasted chicken is a healthy food-and even fried chicken can be trans-fat-free," said CSPI executive director Michael F. Jacobson. "But coated in breading and fried in partially hydrogenated oil, this otherwise healthy food becomes something that can quite literally take years off your life. KFC knows this, yet it recklessly puts its customers at risk of a Kentucky Fried Coronary." . . .

"District of Columbia law allows consumers to seek relief from the courts when companies fail to disclose essential facts about their products," said CSPI litigation director Stephen Gardner. "That KFC uses the worst frying oil imaginable to prepare its chicken is something that KFC should absolutely be required to disclose at the point of purchase."

The lead plaintiff in the case is retired physician Arthur Hoyte, who claims to have eaten at KFC numerous times unaware of the risks to his health.

"If I had known that KFC uses an unnatural frying oil, and that their food was so high in trans fat, I would have reconsidered my choices," said Dr. Hoyte. "I am bringing this suit because I want KFC to change the way it does business. And I'm doing it for my son and others' kids-so that they may have a healthier, happier, trans-fat-free future."

CSPI's complaint is here. The New York Times reports on the suit here.

UPDATE: More on this suit from and Michael Krauss.


What Do These Words Have in Common,

and can you think of some others that would fit the same mold?

  • bugger

  • cravat

  • frank

  • slave


Targeting Double Standards on Targeted Killings :

I don't often agree with Alan Dershowitz. But he is absolutely right to note the double standards inherent in the near-universal praise for the the recent targeted killing of Abu Musab Al-Zarqawi when contrasted with the near-universal condemnation of Israel's very similar targeting of top Hamas terrorists. Many of the same governments and organizations that now applaud the death of Zarqawi condemned the killing of Hamas' top leader Sheikh Yassin in 2004. Interestingly, Hamas itself has been consistent on the issue, and recently issued a statement praising Zarqawi and condemning his assassination (though of course they have no objection to the targeted killing of civilians by Zarqawi and by their own operatives).

In my view, targeting terrorist leaders is not only defensible, but actually more ethical than going after rank and file terrorists or trying to combat terrorism through purely defensive security measures. The rank and file have far less culpability for terrorist attacks than do their leaders, and killing them is less likely to impair terrorist operations. Purely defensive measures, meanwhile, often impose substantial costs on innocent people and may imperil civil liberties. Despite the possibility of collateral damage inflicted on civilians whom the terrorist leaders use as human shields, targeted assassination of terrorist leaders is less likely to harm innocents than most other strategies for combatting terror and more likely to disrupt future terrorist operations.

That does not prove that it should be the only strategy we use, but it does mean that we should reject condemnations of it as somehow immoral. Even more clearly, we should reject the double standards of those who claim that it is permissible to target Zarqawi but wrong for Israel to target equally odious Hamas leaders.

UPDATE: Welcome Instapundit readers!


Daryl Hannah, Property Rights, and "Urban Gardens":

Actress Daryl Hannah and other celebrities have been protesting the planned removal of squatters who for over a decade have maintained an "urban garden" on an LA property that the owner wants to turn into a warehouse. If the protest succeeds, it is likely to achieve the opposite of its intended goal. By saving this one garden, the protesters are likely to make "urban gardens" more difficult to establish in the future.

The relevant facts, according to CNN:

LOS ANGELES, California (AP) — Sheriff's deputies evicted people from an urban community garden to make room for a warehouse Tuesday, touching off a furious protest in which actress Daryl Hannah and others climbed into a walnut tree or chained themselves to concrete-filled barrels. At least 39 people were arrested.....

About 350 people grow produce and flowers on the 14 acres of privately owned land, in an inner-city area surrounded by warehouses and railroad tracks. The garden has been there for more than a decade, but the landowner, Ralph Horowitz, now wants to replace it with a warehouse.....

Horowitz accused the farmers of ingratitude, saying they had sued him and their supporters had picketed his home and office.

"I feel that the gardeners have been on the land for 14 years, almost 15 years for free. After 15 years, you say thank you," he said.....

The effort to save the farm attracted the support of activists and celebrities including Hannah, environmental activist John Quigley, country singer Willie Nelson, actor Danny Glover, folk singer Joan Baez and tree sitter Julia Butterfly Hill.

I think that Hannah and the other celebrity protesters have not thought the issue through as well as they should have. If they get their way, they might be able to save this particular garden. But if landowners such as Ralph Horowitz learn that once you let people garden on your property, you in effect lose your rights and can never remove the garden, they are likely to refuse to allow the creation of urban gardens on their land in the first place. This is especially likely if the government forces the owners to allow such gardens to stay in place permanently, once established. But even if the authorities merely let protesters such as Hannah & Co. usurp the owner's rights through private action, the same results might occur. Whatever one thinks of Mr. Horowitz, he did permit the garden to stay on his property for over a decade. It is unlikely that he and other similarly situated owners would do so if they had thought that it would lead to the permanent loss of their property rights.

To be sure, the government could (setting aside Takings Clause considerations) simply require owners to allow the establishment of urban gardens on any urban properties where local activists would like to plant them. But in addition to being a serious violation of property rights, this approach would severely undercut incentives to invest in urban property, thus imposing major economic costs on urban areas.

UPDATE: I have removed a "[sic]" that I mistakenly inserted in the CNN quote.

UPDATE #2: Contrary to the implications of the CNN story, this article by LA Times columnist Steve Lopez suggests that the Horowitz did not consent to the use of his property by the squatters. The land was condemned by the city in the late 1980s in order to build a sewage plant. After the plan to build the sewage facility was scuttled by political opposition, Horowitz managed to get the property back in 2003, following prolonged litigation. He then began his efforts to remove the squatters (who had started the urban garden during the period when ownership of the property was under dispute between Horowitz and the City) so that he could build a warehouse. Whatever the facts of this specific dispute, however, the main point of the post is still valid: if property owners know that they are not allowed to remove "urban gardens" from their land, they will be extremely reluctant to allow them to be established in the first place.

UPDATE #3: A few additional reasons why my main point holds despite the fact that the garden was initially established without Horowitz's consent. First, regardless of Horowitz's situation, other landowners do in fact sometimes consent to the establishment of community gardens on vacant property lots that they own. Obviously, they are unlikely to do so in the future if Daryl Hannah and her friends succeed. Second, even if the initial effort to establish the garden did not have the owner's consent, he is likely to try much harder (and much more quickly) to get rid of the garden if leaving it alone would lead to the permanent loss of his rights. Absent such a fear, the owner of a vacant lot might well find it cheaper to let the squatters stay until such time as he needs the land for another purpose than to take action against them. Finally, some owners could try to preemptively build structures on their vacant lots for the sole purpose of making it unsuitable for use by farmer-squatters. This would both make it more difficult to establish urban gardens and result in wasteful spending.

Related Posts (on one page):

  1. Great Moments in Career Planning - Adventures in Treesitting:
  2. Daryl Hannah, Property Rights, and "Urban Gardens":

Tuesday, June 13, 2006

Dismissal Recommended for Ward Churchill

by a majority of the University of Colorado Standing Committee on Research Misconduct. Six members recommended dismissal, two recommended suspension without pay for five years, and one recommended suspension without pay for two years. The committee also had this to say about the "[t]iming and [m]otivation of the [a]llegations" (paragraph break added):

In his response to the Investigative Committee’s report, and in other communications with the SCRM, Professor Churchill has maintained that this investigation has been motivated by a desire to censure him for his controversial expressions of political positions. He has noted, accurately, that the allegations sent to the SCRM were the result of a review of his scholarly work by an administrative committee appointed by the Chancellor, and that this review occurred in response to a public outcry following public awareness of his so-called “9/11 essay.”

Our position -- which we believe is consistent with that of the Investigative Committee -- is that while this context is important, it should not distract us from the critical points that (1) complaints of research misconduct were lodged; (2) these complaints required a response by the SCRM; (3) the investigation process proceeded as specified by University policies and procedures, and (4) the resulting findings and recommendations for sanctions were based solely on a review of the facts as determined by a panel of Professor Churchill’s peers.

While acknowledging the larger context in which their work was done, both the Investigative Committee and the SCRM have been scrupulous about limiting their analyses to the facts as uncovered by the Investigative Committee. As such, we believe we have complied with Article 5D of the Regents Laws, which stipulates that disciplinary recommendations should not be “influenced by such extrinsic considerations as political, social, or religious views, or views concerning departmental or university operation or administration.” Considerations of academic freedom and what Professor Churchill alleges to be “punishment for constitutionally protected speech” have not entered into our deliberations, except to the extent that we state our strong support for the former and our rejection of the latter.

Sounds quite right to me.

Thanks to Pirate Ballerina for the pointer.


"Reasonable and Narrowly Tailored" Gun Control:

The S.F. Chronicle reports on the judge's decision striking down the San Francisco law that (1) banned possession of handguns by residents (with a few narrow exceptions, such as for police officers and security guards), and (2) banned the sale or transfer of all guns or ammunition. Here's one item from the story:

"We're disappointed that the court has denied the right of voters to enact a reasonable, narrowly tailored restriction on the possession of handguns," [Matt] Dorsey[, spokesman for the City Attorney's office,] said.

I'm not sure that "narrowly tailored" means that much here (except in the rather trivial sense that the law is narrowly tailored to its goal of completing banning San Francisco residents from possessing handguns in the city, and making long guns harder go get). But in any event it's something to remember when people say they're just supporting "reasonable" gun controls.

And here's the reaction of one of the backers of the law:

Supervisor Chris Daly, a chief sponsor of Prop. H, urged Herrera to appeal and criticized [Judge] Warren. The judge "sided with the powerful gun lobby against the safety of San Franciscans" after showing "disregard for the voters of San Francisco" by taking nearly three months to rule, Daly said.

What exactly is the relevance of the power of the "gun lobby"? I had thought that judges were obligated to "side" with whatever side has the stronger legal argument, even if, God forbid, they're the "gun lobby" or the "civil rights lobby" or the "pro-choice lobby" (funny how somehow we only hear the first term and not the other two).

Also, is it really that bad for a judge who's writing a 30-page opinion, and presumably handling other litigation at the same time -- I don't believe that in the California court system challenges to ballot measures are fast-tracked, but I could be wrong -- to take three months to rule on a matter? Perhaps I'm too influenced by how slowly our legal system normally moves, but three months just doesn't seem like that much of a delay.

Related Posts (on one page):

  1. "Reasonable and Narrowly Tailored" Gun Control:
  2. San Francisco Gun Ban Struck Down by Trial Court:

Celebrate diversity:

For those of you who like to read in foreign languages, or have friends who do, here are some recent translations of my work in various languages. French: Le Contrôle d’Hitler. Les leçons de l’histoire Nazie. (Nazi gun controls). Italian: La liberta, l'esercito e la legge (Waco and law enforcement militarization). Polish: 5 new articles, on handgun bans, Michael Moore, Microsoft antitrust, national ID cards, and AIDS drugs in Africa.

The website has additional foreign language resources, including many more articles in French, Italian, and Spanish, as well as articles in German, Swedish, Danish, Dutch, Hungarian, Czech, Portuguese, and Russian.

Volunteer translators are sought for any and all languages; translators must be living, but the translated language need not be; I would be eager to receive the assistance of translators skilled in Latin, Klingon, ancient Greek, or the many Elvish tongues. If you'd like a chance to practice your Quenya or German skills, just send me an e-mail at the e-mail link on the lower-left corner of my home page.


Do Rapanos & Carabell Threaten the Everglades?

A recent article in Scientific American, “The End of the Everglades?” proclaimed that the two wetlands cases before the Supreme Court “jeopardize[] 90 percent of U.S. wetland[].” According to article author Sara Beardsley, the pending decisions “will probably eclipse [the] importance” of current controversies over domestic surveillance and the detention of enemy combatants. I am skeptical, and find SciAm’s account misleading on several grounds.

John Rapanos has certainly put a very ambitious argument before the Court. He argues that federal jurisdiction under the Clean Water Act (CWA) extends no farther than truly navigable waters and their adjacent wetlands. Were the Court to accept this argument, it is possible that as much as 90 percent of wetlands in the United States, and a majority of other waters within the nation, would no longer be subject to the CWA. This is a plausible descriptive claim, but an implausible prediction. Few informed observers believe such a holding is a realistic possibility. In other words, the possibility SciAm suggests is something of a “worst case” scenario.”

Rapanos and the other petitioner, June Carabell, may well win their cases without the Court adopting Rapanos’ theory of CWA jurisdiction in its entirety. There are many intermediate bases upon which the Court could old that the lands in question are sufficiently remote or disconnected from navigable waters and their tributaries to escape federal jurisdiction. Under existing precedent, wetlands and other waters must have a “significant nexus” or otherwise be “inseparably bound up with” navigable waters to be subject to CWA jurisdiction. It would not take much for the Court to find that either or both parcels failed to satisfy this requirement. The Court could also hold that the lower courts applied too permissive a standard and remand for additional consideration. Any of these outcomes is more likely than the drastic reduction in federal jurisdiction postulated by Scientific American. This is especially so given the Roberts Court’s demonstrated preference for narrow holdings over broad, sweeping pronouncements. So, as a technical matter, it is true that this case could result in the removal of federal protection for the vast majority of wetlands, but this is quite improbable.

The SciAm is also misleading because it equates the reduction of federal regulatory jurisdiction under the CWA with the elimination of environmental protection. This would be a non-controversial claim were federal regulation the only means of protecting wetlands (and if such regulation were clearly effective). But this is not the case. As the article notes in passing, “only half” of state have wetland programs. But this means that some amount of wetland protection would remain in at least half of the states. More importantly, a reduction in federal regulation would almost certainly result in an increase in wetland protection efforts.

After the Supreme Court held in 2001 (in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, aka "SWANCC") that the CWA does not apply to truly isolated waters, several states adopted new statutes or regulations to expand the scope of their protections so as to make up some of the gap. Many other states already had rules on the books covering isolated wetlands, so additional action was unnecessary. Still others considered adopting new rules, and may yet still. As I have documented elsewhere (see, e.g., here and here), states have been more active at wetland protection than many realize. The regulatory uncertainty produced by the SWANCC decision most likely discoraged some states from acting that otherwise would have expanded their wetland protection efforts. As I argue in this draft paper, federal regulation likely has a greater "crowding out" effect on state efforts than is conventionally recognized.

The point here is not that states will completely fill any regulatory gap created by judicial limitations on the scope of CWA jurisdiction. The net result of a victory for the petitioners will be a reduction in wetland regulation, at least in the short run. Nevertheless, state efforts – both those preexisting and subsequent to any decision – must be taken into account when assessing the actual environmental effect of the Court’s decision. This is particularly important because there are reasons to expect that states, in the aggregate, will be more active regulators if federal jurisdiction is limited than they are today. Other factors that must also be considered are the extent to which existing non-regulatory efforts – both public and private – protect certain types of wetlands in certain types of the country, as these programs will not be influenced by the Court’s ruling.

Here is the bottom line: Even if the Supreme Court were to rule this month that 90 percent of wetlands are no longer regulated by the Clean Water Act, this would not mean that 90 percent of wetlands are now unprotected or otherwise "jeopardized". While there are many threats to the Everglades, the pending Rapanos and Carabell decisions should not be counted among them.

UPDATE: I thought it went without saying that there are additional reasons why the Everglades, in particular, would not be threatened by a reduction in Clean Water Act jurisdiction. As noted in the comments, much of the Everglades would remain protected even under an exceedingly narrow interpretation of the law. Substantial portions of the Everglades qualify as wetlands adjacent to navigable waters. Moreover, a ruling on CWA jurisdiction would not affect the protection afforded those portions of the Everglades owned or managed by government entities at the federal or state level. I drew the title of the post from that of the article, but sought to focus on the SciAm story's broader suggestion that a victory for Rapanos and Carabell would necessarily result in a dramatic reduction in federal regulatory jurisdiction or environmental protection.


RFK Jr. & Election 2004 (Continued):

Robert F. Kennedy Jr's analysis of the 2004 presidential election results has been subject to withering criticism, but it continues to get positive attention, such as in this (subscription-only) New York Times column by Bob Herbert. Election law expert Bob Bauer is not impressed.

Meanwhile, Democratic pollster Marc Blumenthal continues his dissection of Kennedy's claims at Mystery Pollster, here and here.


I'm a Pragmatist, You're a Panderer:

Jacob Weisberg, Slate's editor writes (emphasis added):

Any political party counts on having a few hot buttons it can push at those moments when it is a few points behind in the polls with not much time left till Election Day. These issues have certain characteristics -- a whiff of pandering, the flavor of insincerity, an aura of desperation. They aim to stir passion but have little, if any, effect on most people's lives.... Raising the minimum wage sometimes serves the same purpose for Democrats.

This week, George W. Bush smashed his party's biggest "Break glass in case of fire" box, when he called on the Senate to pass a constitutional amendment defining marriage as the union of a man and a woman....

Weisberg goes on to argue why the issue is unlikely to work for Republicans, and he might be correct on that. (I should note yet again that I generally support same-sex marriage, and have signed letters opposing the proposed Federal Marriage Amendment.) But later on he writes (emphasis added):

A second reason the issue won't work again is that Democrats have by now figured out how to handle the issue.... Democrats have honed their talking points on the subject: Marriage should be an issue for states (the federalist position usually espoused by Republicans); the amendment is discriminatory and would also ban civil unions, which most people favor (this is an unsettled question); and why tinker unnecessarily with the Constitution, especially while the Defense of Marriage Act is in force? This sort of framing works pretty well in most of the country. In conservative Southern states where they face a steeper climb, Democrats are even more pragmatic. For example, Harold Ford Jr., a black congressman who is seeking Bill Frist's Senate seat in Tennessee, has simply taken gay marriage off the table by supporting the constitutional amendment.

A bit of dissonance, it seems to me, between the characterization of the Republicans and the Democrats here. Yes, the Republicans are taking the lead -- but it's hard for me to see how the leaders are "pandering" or "desparat[e]" (or even have a "whiff" or "aura" of it), and the willing followers who are also trying to score political points by their position (as politicians are expected to do) are simply "pragmatic."


Corrections of All Kinds

except for spelling... (seen in the new bus terminal, Tel Aviv).

"Will Same-Sex Marriage Collide With Religious Liberty"?

A New York Times article discusses this, citing several serious and thoughtful scholars on the subject.


San Francisco Gun Ban Struck Down by Trial Court:

Here's the opinion, which concludes that the ban on S.F. residents' possessing handguns — and on sales and other transfers of all guns and ammunition within the city — is preempted by state law (thanks to Matt Rustler at Stop The Bleating for uploading the file).

I'm not sure I'd endorse all the details of the court's reasoning, and I'm not an expert on the ins and outs of California state/local preemption law. But I did want to make a few observations:

  1. California Penal Code § 12026(b) quite explicitly says:

    No permit or license to purchase, own, possess, keep, or carry, either openly or concealed, shall be required of any citizen of the United States or legal resident over the age of 18 years who resides or is temporarily within this state, and who is not within the excepted classes prescribed by Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare and Institutions Code, to purchase, own, possess, keep, or carry, either openly or concealed, a pistol, revolver, or other firearm capable of being concealed upon the person within the citizen's or legal resident's place of residence, place of business, or on private property owned or lawfully possessed by the citizen or legal resident.

    This pretty clearly bars any California government entity (including cities and counties) from requiring licenses to buy or possess handguns. And it seems to me that if California government entities may not demand licenses or permits for an activity, they may not forbid it outright, either.

  2. This is yet another reminder to be skeptical of claims that "no one is seriously proposing to ban or confiscate all guns. You hear that only from the gun lobby itself, which whistles up this bogeyman whenever some reasonable regulation is proposed." San Francisco voters categorically banned possession of handguns by city residents (except police officers, security guards, and the like), and categorically banned sales of all firearms. While San Franciscans would remain free to buy rifles or shotguns in neighboring cities, presumably those who advocate for such gun sales bans would endorse the broadening of the bans — if gun sales bans are indeed good for San Francisco, I take it that they would be good for Berkeley, Oakland, San Mateo, and Marin, too.

  3. Finally, the ordinance is another reminder of how gun controls routinely favor those who can hire others to guard them, yet restrict those who want to guard themselves or their family members. "[S]ecurity guards, regularly employed and compensated by a person engaged in any lawful business, while actually employed and engaged in protecting and preserving property or life within the scope of his or her employment, may also possess handguns." The celebrity, big businessman, or relatively prosperous store owner may defend himself by hiring a guard. The woman who wants to protect herself against rapists, the parent who wants to protect his family against home invaders, or the small businessman who wants to be his own security guard — because he can't afford to hire someone else — is out of luck. (Nor can one justify this on the theory that security guards are trained professional; they're in fact generally not terribly well trained, and in any event a person who wants to defend himself, his family, and his business is not allowed to have a handgun to do so no matter how much training he gets.)

In any case, I'm glad the ordinance was struck down, and I hope the decision will be affirmed on appeal. Congratulations to my acquaintance Chuck Michel for winning this one.

UPDATE: I originally erroneously paraphrased § 12026 as "bar[ring] any California government entity ... from requiring licenses to buy or possess guns" (rather than "handguns"); thanks to commenter Christopher Cooke for correcting me.

Related Posts (on one page):

  1. "Reasonable and Narrowly Tailored" Gun Control:
  2. San Francisco Gun Ban Struck Down by Trial Court:

John Lott's Defamation Lawsuit Against Steve Levitt.--

John Lott's sensational lawsuit for defamation against economist Steve Levitt (and co-author of the bestselling Freakonomics) has received only limited comment in the blogosphere. When I first read that Lott was supposedly suing because Levitt and Dubner had written in Feakonomics that Lott's work had not been replicated, I thought that sounded like a weak claim, since there are several meanings to the claim that work has not been or cannot be replicated.

One might mean that:

1. Using different data drawn from a different era or a different population, a replicator found that the patterns in the data between the new study and the earlier one are meaningfully different.


2. Supposedly using the exact same data, a replicator was unable to get the same coefficients in the same models.

Even if one means the second sort of a failure to replicate, the reason is usually that the original researcher recoded the data in some arguably reasonable way that he has since forgotten, or that he copied the results from the wrong model into his paper, or that he miscopied results, or that there is some communication problem between the original researcher and the replicator. In other words, usually someone claiming a failure to replicate is claiming that the results of the original study are unreliable, but in some relatively innocent way.

The passage that Lott objects to is covered in this excellent article in the University of Chicago student newspaper, the Maroon:

The lawsuit states that the book “damages Lott’s reputation in the eyes of the academic community in which he works, and in the minds of hundreds of thousands of academics, college students, graduate students, and members of the general public who read Freakonomics.”

The contested material is on pages 133–134 of Freakonomics, in which Levitt writes that researchers have been unable to confirm Lott’s conclusion that right-to-carry gun laws actually reduce crime.

Freakonomics states, “Then there was the troubling allegation that Lott actually invented some of the survey data that supports his more-guns/less-crime theory. Regardless of whether or not the data was faked, Lott’s admittedly intriguing hypothesis doesn’t seem to be true. When other scholars have tried to replicate his results, they found that right-to-carry laws simply don’t bring down crime.” According to the lawsuit, Lott acknowledges that his findings have come under scrutiny in the academic community, but he maintains that he used “different data or methods to analyze the relationship between gun control laws and crime.”

The lawsuit states that scholars who have replicated Lott’s work have achieved the same results. “Every time that an economist or researcher have tried to replicate [Lott’s] results, he or she has confirmed Lott’s conclusion.”

Carl Moody, a professor of economics at the College of William and Mary, said he successfully replicated Lott’s findings and published the results in 2001. Moody said Levitt’s accusation is wrong.

The lawsuit, which also names Levitt’s publisher HarperCollins, states that the publisher acted with malice by failing to verify the statements. It seeks a court order to halt sales of Freakonomics until the statements are retracted or amended and also demands that Levitt and HarperCollins pay unspecified monetary damages.

Looking at the quoted passage from Freakonomics, there would seem to be two problems with it.

First, on the narrow view of replication, it may be factually incorrect if Carl Moody has indeed replicated Lott's analysis using the exact same data and published the results. Accordingly, it may be somewhat misleading to say that Lott's results have not been replicated when they have been in the narrow sense, but not usually in the broader sense (even in the broader sense, the results may be a bit more mixed than Freakonomics implies).

Second, and more troubling to me, Freakonomics juxtaposes concerns about whether Lott ever did his 1997 study with the nonreplicability of Lott's main studies presenting his main thesis: "More Guns, [lead to] Less Crime." These are completely different studies, linked mostly by the person who reported them. If I didn't know this fact, I might conclude from reading the passage in Freakonomics that the reason that Lott's research asserting that more guns leads to less crime supposedly hadn't been replicated (in either sense of the word) is that he may not have done it in the first place. That strikes me as misleading, since the work that people have tried to replicate was most assuredly done (and Lott has shared the data from his main study).

It would seem to me that this passage in Freakonomics should be revised to separate more clearly the two points being made and to explain the sense in which Lott's work has and has not been replicated.

Even though I find Freakonomics misleading in its juxtaposition of problems with two very different Lott gun studies, Lott obviously has an uphill quest in persuading a court that the book is defamatory. Here are the two crucial allegations from the complaint:

12. The term "replicate" has an objective and factual meaning in the world of academic research and scholarship. When Levitt and Dubner allege that "other scholars have tried to replicate his results," the clear and unambiguous meaning is that "other scholars" have analyzed the identical data that Lott analyzed and analyzed it in the way Lott did in order to determine whether they can reach the same result. When Levitt and Dubner allege that when "other scholars have tried to replicate his results, they found that right-to-carry laws simply don’t bring down crime,” they are alleging that Lott falsified his results. . . .

14. The allegation that other scholars have been unable "to replicate [Lott's] results" is defamatory per se because it attacks Lott's integrity and honesty in his profession as an economist, scholar and researcher. . . ."

It would seem to me to be a hard sell to persuade a trier of fact that it is defamatory per se to assert that researchers have been unable to replicate someone's work, given that replication does not mean only what allegation 12 says it means.

Interestingly, the complaint does not note Freakonomics' misleading tying of the 1997 study to the inability to replicate his work. That may be because Lott didn't want to raise an issue on which he is vulnerable, given the lack of records to support the 1997 study.

Bottom line: I think that Freakonomics is misleading in its juxtaposition of different studies, a juxtaposition that might bring one to conclude that the reason that the main More Guns, Less Crime research was not usually replicated in other studies is that there was some chance that a study was never done. Yet, to the extent that Lott's lawsuit is based on a failure to replicate being per se defamatory, I would think he has a difficult chance of winning.

John Lott Update on His Reported 1997 Study.--

I have been meaning to post on several developments this spring relating to economist John Lott, which I am doing in two posts.

As some of you may be aware, there was a dispute over whether John Lott ever did a study of defensive gun uses in 1997, as he claimed to have done. Interested people can review most of the ins an outs of that dispute [by reading comments at Lott's site] and at Tim Lambert's Deltoid site (Lambert is Lott's most vigorous critic). In December 2002 and January 2003 I wrote a long, tediously detailed, and ultimately inconclusive report on whether Lott ever did a study in 1997, finding good evidence that Lott had a major data loss, but little evidence that Lott conducted a study in that year.

Immediately after that report appeared, Minnesota gun activist and former NRA board member David Gross came forward to say that he had been interviewed for a gun survey, and he thought that he was interviewed in the spring of 1997, probably by people working for Lott.

Here is what I later wrote to Instapundit about the Gross account:

As people may have heard, but may have not quite understood, I found Gross a credible witness. Unfortunately, that is a lawyer’s term of art. It is possible to have credible witnesses on both sides of a case telling inconsistent stories. What I meant is my opinion that most people who heard him would give credence to his account (and that I found him generally believable), not that his account would necessarily trump any other evidence.

The part of Mr. Gross’s written public statement that was slightly different from what he told me concerned who called him for the interview. When I asked him if he remembered anything about who called, he said that he “was beginning to think” that the call came from students in Chicago, perhaps at Northwestern or the University of Chicago, but he was very uncertain about whether the call came from a Chicago area source. In his public statement issued after he talked with me more than once, however, Gross’s very uncertain memory became a bit more certain, suggesting that the call probably came from the University of Chicago. That and the timing (which he was also not certain about) were the only things that pointed to him having been called by Lott as opposed to another survey organization.

As I delved into the other studies being done in the 1996-97 period, I found that Gross’s description of the questions that he was asked fit a 1996 Harvard study by Hemenway & Azrael better than Lott’s account of his study questions. First, Gross said that the person who called him was interested in a defensive gun use that happened a few years before he was surveyed, but was not interested in a defensive use that occurred many years before that. This would not fit Lott’s survey, since Lott [told me that he] asked only about DGUs in the prior year. It would fit the Harvard study perfectly, which asked about DGUs in the prior 5 years, but excluded events before that. Further, Gross said that he gave a narrative account of the event, which the caller was interested in. Lott’s study had asked closed-end questions, which would make the narrative superfluous, while the Harvard study was one of the first to ask for a narrative account of DGUs. Last, Gross reported that there was a question about state gun laws, which Lott did not ask, but the Harvard study did.

Some weeks ago John Lott emailed me to report that the data for the 1996 Hemenway study had been released and that the demographics for each respondent from the state where Gross lived (Minnesota) did not fit Gross. I checked those data and also downloaded and checked the open-ended narrative accounts in the 1996 Hemenway study of defensive gun uses from Minnesota. Since neither the demographics nor the descriptive accounts matched Gross to any Minnesota respondent, it seems clear that Gross was not surveyed by Hemenway in 1996.

Interestingly, even in 2003 neither Tim Lambert nor David Hemenway thought it likely that Gross had been surveyed in the 1996 Harvard study. Since Gross's account of the questions asked fit Lott's claims about his 1997 study in some respects but not others, we are left with several possibilities. If Gross is not lying (and despite his strong pro-gun orientation and some minor changes in his story, I still think that it is more likely than not that Gross is basically telling the truth as he remembers it), then either Gross or Lott misremembered some of the questions asked or Gross was surveyed for yet another survey.

By the way, John Lott also wrote me that another survey participant came forward a year ago, but I have not interviewed him or her.

Last, it appears that Lott is no longer fulltime at AEI. Although his page there is still reachable from Google, it is no longer linked from the AEI scholars page. He is listed as "Former Resident Scholar."

Happy Quasi-Birthday to Sasha and Me:

31 years ago, our parents left the then-USSR, with then 7-year-old me and 2-year-old Sasha in tow. A very big day in our lives.


Copyright "Education" Sites Makes Incorrect Claims About the Law:

Captain Copyright, a Canadian "education" site about copyright — aimed at conveying a pro-copyright message to children, and at being used by schoolteachers for that purpose — has the following "Legal Notice":

Links from Other Web Sites ...

Permission is expressly granted to any person who wishes to place a link in his or her own web site to or any of its pages with the following exception: permission to link is explicitly withheld from any web site the contents of which may, in the opinion of the Access Copyright, be damaging or cause harm to the reputation of, Access Copyright. In the event we contact you and request the link be removed, you agree to comply with that request promptly. If you link to or otherwise include on your website, please let us know and create any link to our home page only.

Under U.S. law, no-one needs permission to link to another site; your bitterest enemy is free to link to your site even if you insist that the link be removed. Nor is simply placing a paragraph on the Web page saying that "you agree to comply with that request promptly" sufficient to impose any contractual obligation on you. (Even the shrinkwrap licensing cases don't go that far.) I'm not an expert on Canadian copyright law, but Prof. Michael Geist, who is an expert on the subject (and whose column alerted me to the issue) describes Canadian law the same way.

In any case, I'm sending the following message to the address posted on the site (privacy at

Dear Madam or Sir:

I wanted to inform you that I've linked to your site at, a post on a Weblog that gets about 15,000 unique visitors per day. The link is quite critical, and I hope that it will (justifiably) harm your reputation: I point out that your "Links from Other Web Sites" policy is legally unenforceable, implicitly misstates the law in ways that may mislead lay readers (including children and schoolteachers who are visiting your site), and therefore casts doubt on the credibility of the "educational" material you post on your site.

Should you request or demand that I remove the link, I will categorically refuse, as I am entirely within my rights to do. Copyright law does not restrict my linking to your site, and because I never expressed agreement to the offered terms on your site, I am not contractually bound by your assertions of your supposed rights, either. I have absolutely no intention of complying with your requests. Rather, I intend to continue to link to your site in ways that injure your reputation.

Eugene Volokh
Professor of Law
UCLA School of Law
(affiliation listed for identification purposes only; I speak for myself, not for my institution)
Proprietor, The Volokh Conspiracy,

UPDATE: Commenter Michael Barclay reports that the site has very recently (since I visited it and copied the material quoted above) changed its policy slightly to say:

Permission is expressly granted to any person who wishes to place a link in his or her own website to or any of its pages with the following exception: permission to link is explicitly withheld from any website the contents of which may, in the opinion of the Access Copyright, be damaging or cause harm to the reputation of Access Copyright. Specifically, permission to link is explicitly withheld from sites featuring pornographic, racist or homophobic content. If you link to or otherwise include on your website, please let us know.
My criticism of the policy still stands.


Book Recommendation--Black Americans and Organized Labor:

I've just about finished reading historian Paul Moreno's new book, Black Americans and Organized Labor: A New History. I'm reviewing the book for the Independent Review, and will post a link when it's published. But for now, I want to strongly (but briefly) recommend the book. In the course of researching my book, Only One Place of Redress: African Americans, Labor Regulations and the Courts from Reconstruction to the New Deal, I read many books and articles on the topic of the relationship between blacks and labor unions. Moreno's is by far better than anything available to me at that time, shattering many myths along the way.

Moreno's book, near as I can tell, has received almost no attention thus far. Undoubtedly, it hasn't helped matters that the book was scheduled to be published last Fall by LSU Press, and was delayed because of Katrina. And based on my own experiences trying to contact the press, LSU Press doesn't seem to have its act together. So here's hoping that V.C. readers with an interest in labor history, economic history, African-American history, or even American history in general will add Black Americans and Organized Labor to their summer reading list.

Rove Won't be Charged With Leaking CIA Information.--

As the New York Times reports, there is not enough evidence to charge Karl Rove:

The prosecutor in the C.I.A. leak case on Monday advised Karl Rove, the senior White House adviser, that he would not be charged with any wrongdoing, effectively ending the nearly three-year criminal investigation that had at times focused intensely on Mr. Rove.

The decision by the prosecutor, Patrick J. Fitzgerald, announced in a letter to Mr. Rove's lawyer, Robert D. Luskin, lifted a pall that had hung over Mr. Rove who testified on five occasions to a federal grand jury about his involvement in the disclosure of an intelligence officer's identity.

In a statement, Mr. Luskin said, "On June 12, 2006, Special Counsel Patrick Fitzgerald formally advised us that he does not anticipate seeking charges against Karl Rove." . . . .

Mr. Fitzgerald's decision should help the White House in what has been an unsuccessful effort to put the leak case behind it. Still ahead, however, is the trial of Vice President Dick Cheney's former chief of staff, I. Lewis Libby Jr., on charges for perjury and obstruction of justice, and the prospect that Mr. Cheney could be called to testify in that case.

A series of meetings between Mr. Luskin and Mr. Fitzgerald and his team proved pivotal in dissuading the prosecutor from bringing charges. On one occasion Mr. Luskin himself became a witness in the case, giving sworn testimony that was beneficial to Mr. Rove.

As the case stands now, Mr. Fitzgerald has brought only one indictment against Mr. Libby. The prosecutor accused Mr. Libby of telling the grand jury that he learned of Ms. Wilson from reporters, when in reality, the prosecutor said he was told about her by Mr. Cheney and others in the government. Mr. Libby has pleaded not guilty in the case, which is scheduled to begin trial early next year.

It would be interesting to compare the false statements made by Rove and Libby to the investigators with the false statements made by Joe Wilson to the press and the public.

"Guns and Violence: The English Experience"

That's the title of Joyce Malcolm's excellent book on the history of gun control in Great Britain. Paul Gallant, Joanne Eisen, and I review it for a forthcoming symposium issue of George Mason's Journal of Law, Economics & Policy. The review is available in PDF and HTML.


Monday, June 12, 2006

Pretty Troubling Decision from Colorado Supreme Court:

The court has just removed from the ballot an initiative that would bar Colorado governments from providing non-emergency services to illegal aliens. The court's argument was that the initiative violated the state constitutional rule that initiatives may not embrace more than one subject.

Here, though, is the initiative text:

(1) Except as mandated by federal law, the provision of non-emergency services by the state of Colorado, or any county, city, or other political subdivision thereof, is restricted to citizens of and aliens lawfully present in the United States of America.

(2) Any person lawfully residing in the state of Colorado shall have standing to sue the state of Colorado, or any county, city, or other political subdivision of the state of Colorado, to enforce this section.

(a) Courts of record of the state of Colorado shall have jurisdiction to hear cases brought to enforce this section.

(b) The general assembly may provide reasonable and appropriate limits on the time and manner of suits brought under this section.

(3) The general assembly shall have the authority to implement this section by definitions and other appropriate legislation.

No multiple subjects here, it seems to me; sections (2) and (3) are basically procedural, as the court agreed, and section (1) focuses on one basic principle: No provision of nonemergency services to illegal aliens.

The majority's opinion strikes me as quite odd:

We identify at least two unrelated purposes grouped under the broad theme of restricting nonemergency government services: decreasing taxpayer expenditures on behalf of the welfare of the targeted group and denying access to administrative services.

First, the Initiative could restrict delivery of medical and social services to persons lawfully present in Colorado. Medical and social services are funded by the taxpayers. Consequently, restricting delivery of taxpayer-funded medical and social services will decrease taxpayer burdens....

Second, the initiative could restrict access to certain administrative services. As noted above, administrative services include a variety of recording services facilitating economic transactions between individuals, such as recording the transfer of real property....

We conclude that these two purposes –decreasing taxpayer expenditures and denying access to certain administrative services –are incongruous. The theme of restricting non-emergency government services is too broad and general to make these purposes part of the same subject. The prohibition against multiple subjects serves to defeat voter surprise by prohibiting proponents from hiding effects in the body of an initiative. It also discourages placing voters in the position of voting for some matter they do not support to enact that which they do support. Initiative #55 presents the possibility of both prohibited practices.

First, this Initiative’s omnibus proportions are hidden from the voter. In failing to describe non-emergency services by defining, categorizing, or identifying subjects or purposes, the Initiative fails to inform voters of the services its passage would affect. Because "emergency services" are commonly defined, as Defend Colorado Now does, as including police and fire protection and emergency room medical services, a voter might well assume that the converse of "emergency" would pertain to the single subject of non-emergency medical or social services. In the absence of a definition for "services" or a description of the purposes effected by restricting non-emergency services, the unrelated purpose of restricting access to administrative services is hidden from the voter.

Second, there no doubt exists a diversity of approaches and attitudes regarding the presence of the individuals targeted under this Initiative. Some voters may indeed wish to both reduce taxpayer expenditures for medical and social services and inhibit property ownership by targeted individuals. Other voters may find, however, they have unwittingly voted to restrict recording services while only wishing to reduce taxpayer expenditures for medical and social services. The common means of restricting non-emergency services insufficiently connects the subjects of reducing taxpayer expenditures and prohibiting the targeted group from participating in administrative services. Thus, the purpose of reducing taxpayer expenditures by eliminating expenditures on behalf of individual welfare for the targeted group is not dependent on and clearly related to the purpose of restricting access to administrative services....

This strikes me as quite misguided. All constitutional provisions -- the freedom of speech, equal rights for women, a restriction on unreasonable searches and seizures, and the like -- have multiple effects, and serve multiple purposes. The single-subject rule may itself be unnecessary and unadministrable, as my colleague Dan Lowenstein has in the past argued; but to the extent that it's the law, it surely shouldn't be used to set aside proposals that are as coherent (whether or not sound) as the one proposed by Article 55, just because they have multiple effects and multiple purposes.

The dissent, I think, has it quite right (some paragraph breaks added, citations and footnotes omitted):

Although the majority opinion today pays homage to the requirement’s dual concerns for secreting unrelated provisions and combining provisions too unpopular to succeed on their own, it understands the term "subject" to be so elastic as to give this court unfettered discretion to either approve or disapprove virtually any popularly-initiated ballot measure at will. Because I believe the single-subject requirement was adopted to protect voters from deception and fraud rather than to limit their right to make public policy directly by constitutional amendment, I respectfully dissent.

Unlike lengthy, detailed, or convoluted regulatory measures, easily capable of hiding disparate subjects or combining them solely to increase voting power, the substantive provision of Initiative #55 contains a single mandate, clearly expressed in a single, concise sentence. Consistent with federal law, government is required to restrict non-emergency services to those whose presence in this country is lawful. The majority, however, is able to characterize even this straightforward provision as containing multiple subjects, by parsing the motivation or objective of the proponents and treating each of its component parts as a separate "subject"; and by measuring the homogeneity of those subjects according to the potential impacts or effects of the amendment if the initiative succeeds.

First and foremost, the majority unselfconsciously equates the constitutional requirement that each initiative be limited to a single subject with a requirement that each initiative be motivated by a single objective or purpose in the minds of its proponents. By finding (through examination of the Defend Colorado Now website) that the proponents consider it fundamentally unfair for illegal residency in this country to be facilitated by access to taxpayer-provided services and, moreover, that the services to be denied persons here illegally include not only non-emergency police, fire, and medical services but non-emergency administrative services as well, the majority concludes that the proposed measure contains at least two distinct subjects. Apparently inferring that the purpose for restricting police, fire, and medical services must be solely to save money while restricting other kinds of services must be motivated solely by some other, unrelated purpose, it characterizes these two purposes, or "subjects," as "decreasing taxpayer expenditures" and "denying access to certain administrative services."

Of course, the majority might just as easily have found that the proposal was motivated by a host of other reasons, including the deterrence of unlawful presence in the state, it’s clear and expressed ultimate objective. The susceptibility of any group motivation or objective to being thinly sliced is limited only by the ingenuity (and desire) of the court doing the slicing. And according to the majority’s logic, each such "purpose," apparently constitutes a "subject" of the initiative. The constitutional limitation itself, however, does not purport to examine the hearts of those advancing an initiative but merely prescribes the form an initiative must take for it to be considered by the electorate.

In addition, the majority suggests (without making clear precisely how) that a potential for multiple, unspecified impacts or effects also runs afoul of the single-subject requirement, perhaps because unspecified effects themselves amount to hidden subjects, or perhaps because having a potential for multiple effects must demonstrate that any unifying theme will be too broad. But surely any provision expressed with sufficient generality to be appropriate for inclusion in a constitution will necessarily have a potential for, and be intended to have, multiple effects. Such a construction would clearly bar the due process clause or guarantees of free speech from being considered by the initiative process. Nothing in the language or history of the single-subject requirement for popular initiatives or, for that matter, the identical limitation on statutes enacted by the general assembly, remotely suggests that in addition to being limited to a single subject, a proposal can also have but one, identifiable impact or effect; and any such requirement, if applied uniformly, would preclude all but the most trivial popularly-initiated proposals.

The right of the initiative appears to have been reserved to the voters, by our constitution, precisely for the purpose of providing them with a means of overriding the policy choices of their elected representatives (as well as the constitutional interpretations of the judiciary) and a means of prescribing measures they expect will more effectively accomplish their goals.

There can be little doubt that certain formalities will always be indispensable to ensure that the will of the voters is actually expressed in their vote; and regardless of the wishes of the electorate at any point in time, the law of this jurisdiction will necessarily remain subject to the supremacy of the federal constitution. I do not believe, however, that the single-subject requirement can fairly be construed to assign to this court the role of screening from the voters any measure the full impact of which it considers them unable to appreciate; nor do I believe it is possible for judicial officers, however conscientious, to apply a standard as amorphous as the majority obviously considers the single-subject requirement to be, without conforming it to their own policy preferences.

Whatever one may think of the merits of Initiative #55, when evaluated in terms of the historically and purposefully limited scope of the single-subject requirement, it clearly treats of a single subject and therefore cannot be kept from the voters on that basis alone. I therefore respectfully dissent....


Meteorite Hits With Energy Comparable to That of the Hiroshima Bomb:

A Norwegian paper reports:

"This is simply exceptional. I cannot imagine that we have had such a powerful meteorite impact in Norway in modern times. If the meteorite was as large as it seems to have been, we can compare it to the Hiroshima bomb. Of course the meteorite is not radioactive, but in explosive force we may be able to compare it to the (atomic) bomb," [astronomer Knut Jørgen] Røed Ødegaard said.

Fortunately, the meteorite landed in an out-of-the-way place (northern Norway), but it sounds like it would have been very bad if it had landed in a more populated area, or perhaps even in the ocean. This raises, I think, the old issue of how much we should fund asteroid defense, though I suspect that meteorite defense is much harder than asteroid defense. (I should note some uncertainty about what "we can compare it to the Hiroshima bomb" exactly means; it would be great if knowledgeable people can speak to that in the comments.)

Thanks to the excellent GeekPress for the pointer.

UPDATE: Commenter Jim Hu writes:

Follow up:

Truls Lynne Hansen of the Northern Lights Observatory (Nordlysobservatoriet) in Tromsø disputes Røed Ødegaard's description, calling it an exaggeration.

"Our atmosphere is peppered with small stones from outer space all the time," Hansen told newspaper Aftenposten. "Most burn up and disappear, but some land here."

He thinks that what hit northern Norway last week was a stone weighing around 12 kilos (about 26 pounds).

Ødegaard estimated more than the previous record of 90 kilos. There's a photo of the impact site at the link. It's hard to tell the scale, but it doesn't look Hiroshima-like.


Shooting of Nevada State Court Judge:

A very unfortunate story; the judge is in family court, incidentally, and I've heard it said that family court is the place in the court system where violence (usually by disgruntled litigants) is most likely. My best wishes to the judge, who seems very seriously wounded but still alive, and to his family.

This event is obviously a tragedy to those involved, but attempted murders of judges, even more than attempted murders of ordinary citizens, are especially troubling because they threaten our justice system as well as individual victims; I thus thought this incident was particularly noteworthy. Thanks to How Appealing for the pointer.

UPDATE: The judge's administrative assistant was apparently also hit, though her injuries seem to have been less serious.


Court Citing Blog:

The dissent from denial of rehearing en banc in United States v. Scott, a Ninth Circuit case involving the Fourth Amendment rights of pretrial detainees, says this in footnote 5:

It is also worth noting that the majority’s opinion has been criticized regarding its negative repercussions for criminal defendants and the defense bar in general. Judge Bybee observes in his dissent that [details omitted -EV] .... Judge Bybee’s foresight has been echoed by the defense bar, noting that even though the majority is attempting to protect 'the ideal espoused in our legal system that a citizen is innocent until proven guilty, ... it is only fair to point to the problems that this may create from a policy standpoint. If all suspects charged with a crime retain all their rights if they are released, why would the state release them? I mean, they have to set reasonable bail, but if the accused cannot afford this bail, (so mainly the poor), they will have to remain behind bars until their trial.' (last accessed June 1, 2006). Even the Harvard Law Review has criticized the majority’s reasoning: [details omitted -EV] ... 119 HARV. L. REV. 1630, 1630-31 (Mar. 2006) (footnotes omitted). The law review also states: [details omitted -EV].

Let me begin by congratulations Sean Sirrine, who wrote the De Novo post to which the opinion linked. But let me also point out one complexity in linking to blog posts: It's often not completely clear what the author does for a living (unlike with law review articles, where the author's note is usually quite explicit on that).

Sirrine, it turns out, wrote that post a few weeks into his first year of law school; that surely isn't reason to ignore the post, and Sirrine is one of those law students who has thought a lot about law before going to school. Still, it seems to be a mistake to call him a member of "the defense bar."

And this mistake also shows the need for a bit of extra care when describing the authors of blog posts, op-eds, and other publications that don't make the author's affiliation clear. Many blogs, like this one, do clearly indicate their authors' affiliations, but De Novo and Sirrine's other blog, Objective Justice, don't seem to.

Careful readers might also have noticed that the footnote in the dissent oddly refers to a criticism expressed by "the Harvard Law Review"; yet of course the Review as an institution almost never expresses its institutional opinion in its page (as, say, the New York Times may), but rather presents the opinions of others. (The Review does make a judgment about the quality of the works it publishes, but that doesn't mean an endorsement of the criticisms that the works make.)

The cited item, as one might gather from the lack of author and title, is a Recent Case mini-article written by an anonymous law student -- a source that's perfectly legitimate to cite (as is a blog), but one that probably should be characterized as "an article in the Harvard Law Review criticizes" or "a casenote in the Harvard Law Review criticize" rather than just as "the Harvard Law Review criticizes." On the other hand, lawyers who are reading the dissent will almost certainly realize that "the Harvard Law Review criticizes" must mean "an item in the Harvard Law criticizes," and will thus not be misled by the characterization.


X-Men Aren't Human:

It seems that discussions about whether the equal protection clause applies to the X-Men and other mutants is moot. As the Disenchanted Idealist notes, a federal court has already determined that the X-Men (and other superheroes) are "nonhuman creatures," at least for the purposes of U.S. trade law.


Southerner Justices:

Name the last two Supreme Court Justices who were born in the South, which we'll define for our purposes as covering those states that seceded from the Union. If you want to claim credit in the comments for getting the right answer, please work only from memory (though you should verify the answer through some authoritative source), rather than just going sequentially through the recent Justices, or guessing until you find the right answer.


Waiting for Rapanos (and Carabell Too):

Among the many big cases awaiting decision from the Supreme Court are Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers - two companion cases that challenge the scope of federal regulatory jurisdiction under the Clean Water Act (CWA). Argued in February (on Justice Alito’s first day), decisions are expected soon. According to some, the future of water pollution control is at risk. Such hyperbole aside – and it is hyperbole – these two cases are easily the most important environmental cases of the term and merit close attention. (I previewed both in an NRO column here; the "Rapanos blog" is here.)

The CWA applies to all “navigable waters of the United States” (which the Act defines simply as "waters of the United States”). As interpreted in prior cases, this jurisdiction extends to cover wetlands adjacent to navigable waterways (but does not reach isolated, intrastate waters). At issue in each case is how far the CWA’s jurisdiction extends beyond navigable waters and adjacent wetlands, specifically whether the Act applies to wetlands adjacent or hydrologically connected to tributaries of navigable waters. In one case, the wetlands are adjacent to a ditch that drains into a creek that in turn drains into a tributary that is connected to a navigable waterway many miles away. In the other, the wetland is directly adjacent to a tributary, but it is hydrologically separated by a man-made berm.

The federal government argues that jurisdiction under the CWA extends to all wetlands with any hydrological connection to navigable waters, no matter how small or insignificant. “One drop” is enough, according to Solicitor General Paul Clement at oral argument. Rapanos’ attorneys at the Pacific Legal Foundation make an equally ambitious argument, that the CWA does not apply past those wetlands truly adjacent to navigable waters – and that if it did it would press against the limits of the federal government’s Commerce Clause power.

Either argument, taken to its fullest extent, would have significant repercussions. Yet the Supreme Court is unlikely to accept either side’s case in unadulterated form. While there are four justices who seem willing to adopt the government’s position, I doubt they could get a fifth vote without making some concessions. On the other side, I also doubt there are five votes to curtail federal regulations as far as PLF suggests – particularly since such an amibitious claim is not necessary for either petitioner to prevail on his underlying claim.

In the end, more important than who “wins” this case – the government or the petitioners – is how either side wins. In these cases, the devil will be in the details. For instance, the Court could side for the petitioners and remand their cases, yet do so on such narrow terms that they are certain to lose again in the lower courts. The Court could also side for the government largely by deferring to agency expertise without swallowing the heart of the government’s argument (and without resolving some of the legal uncertainty that led to these cases in the first place). In other words, how they win is more important than who wins. We’ll know soon . . . perhaps as early as today Thursday, when the Court is expected to next issue opinions.


Update of Post on Conjugal Visitors for Women Terrorists in Israeli Jails:

A few weeks ago I wrote about a segment I saw on Israeli t.v. about Palestinians who intended to commit suicide murders who had babies in Israeli prisons. My Hebrew is inadequate, but my Israeli hosts told me that (as I had understood) the pregnancies were the result of conjugal visits.

A reader writes to state that he viewed the same segment I did, and that he does not think that the segment specficied that the pregnancies were the result of conjugal visits. He also notes that some pro-Palestinian sources claim any pregnant terrorists in Israeli jails were in that condition before Israel caught them. And, I've since learned that that Palestinian religious fanatics sometimes will "allow" sexually "errant" women to restore their family's honor by serving as suicide murderers. In short, I'm not sure when and how the women in the segment became pregnant.

Moreover, contrary to the impression that may have been left by my post, my current understanding is that security prisoners in Israel are generally not permitted conjugal visits, though exceptions are made. (Security prisoners are also generally officially denied many other privileges, but those rules have not, for example, been enforced to prevent convicted terrorist murderer Marwan Barghouti from running a massive political operation while in jail.) If anyone knows of an (English) link to the the Israeli Supreme Court's opinion denying Rabin assassin Yigal Amir conjugal visits, please let me know; this opinion would likely shed light on Israeli law regarding security prisoners and conjugal visits.

Gaza Civilian Deaths:

Jonathan Zasloff cautions against a rush to judgment, noting that the cause of the deaths has not yet been determined, and the incident may turn out to be another instance, like the death of 12 year old Mohammed al-Dura a few years back, in which Palestinian propaganda managed to turn manslaughter by inept Palestinians into an Israeli "crime." Debka reports that various intelligence services believe the most likely cause of the explosion was a "daisy chain" bomb trap set by Palestinians.

As for me, I regret the loss of civilian life, whether caused accidentally by an Israeli shell, or accidentally by a Palestinian bomb. But if a result of the former, I hardly think Israel deserves the international condemnation it is receiving. Despite Israel's total withdrawal from Gaza, Israeli border town are experiencing constant missle bombardment from Gaza, and the evidence shows that the Hamas government is not only not trying to prevent such attacks, but to some extent participates in them. In short, Israel is at war, and is not only morally justified, but morally required to respond to protect militarily to protect its citizens [Israel, in fact, had a major screw up a while back, when it had the opportunity to eliminate the entire leadership of Hamas in an airstrike, but failed to do because, out of fear of civilian casualties it used too small a missle, creating, in the long-run, far more civilian deaths in both Israel and Gaza.]. Israel's response has been far from indiscriminate, attempting to eliminate the missle crews while limiting civilian deaths. But in any war, civilians get killed. Ultimately, assuming reasonable efforts to avoid civilian casualties, the relevant moral question is, who is responsible for the war, and thus for the deaths? The answer here seems obvious: There is not a single Israeli soldier or settler in Gaza, giving the Palestinians there not even a fig leaf of an excuse for attacking Israeli towns with missles. In short, even if civilians in Gaza were accidentally killed by a stray Israeli shell, they were, in effect, killed by fellow Palestinians.

Sunday, June 11, 2006

Why Publish Government Secrets?

Washington Post associate editor Robert Kaiser explains the Post's approach to classified information and other government secrets uncovered by its reporters. Among other things, he notes that government officials have a tendency to exaggerate the sensitivity of certain material, as happened in the Pentagon Papers case and the "Ivy Bells" story.

Here is a taste of the article, but those interested in the subject (or prone to comment) should read the whole thing:

The Post's record on stories of this kind is good. I don't know of a single case when the paper had to retract or correct an important story containing classified information. Nor do I know of a case when we compromised a secret government program, or put someone's life in danger, or gave an enemy significant assistance.

These are the criteria we generally use when evaluating a report based on classified information. Editors here spend long hours on these stories. We never rush them into print; our lawyers usually read them along with editors.

We publish news we think is important, which is usually easy to recognize. We always ask the administration of the day to comment on sensitive stories, knowing that we may be inviting efforts to dissuade us from publication. This happened in the case of Priest's story on the secret prisons. The Bush administration asked Leonard Downie Jr., our executive editor, not to mention the names of the countries in which these prisons were located, on grounds that naming them could disrupt important intelligence relationships. He agreed, in part because "naming the countries wasn't necessary for American readers," he said later.

But Downie rejected the suggestion that he kill the story altogether. "It raised important issues for American voters about how their country was treating prisoners, and it raised significant civil liberties issues," he said. Journalists are inclined to publish what we learn -- that's our job.

But we don't assert that the government has no right to keep secrets. On the contrary, we have probably helped the government keep secrets more often than we should have. But we exercise common sense, and seek guidance from knowledgeable people when we're uncertain. We avoid the gratuitous revelation of secrets. If we learn next week that the United States has found Osama bin Laden's hiding place, you are unlikely to read a story about it here before the government takes some action. . . .

Once we understand the need for balance, it follows logically that no single authority should be able to decide what information should reach the public. Some readers ask us why the president's decisions on how best to protect the nation shouldn't govern us, and specifically our choices of what to publish. The answer is that in the American system of checks and balances, the president cannot be allowed to decide what the voters need to know to hold him accountable. A king may have such power, but the elected executive of a republic cannot, or we will have no more republic.

Labeling something "classified" or important to "national security" does not make it so. The government overclassifies with abandon. And the definition of "national security" is elusive. Some politicians act as though revealing any classified information threatens our nation's security, but that seems preposterous.


Sunday Song Lyric: There are scads of songs about drugs, and even more that were influenced by the drug habits of their writers, composers, and performers. Some celebrate drug-induced highs, while others lament the horrors of dependence and addiction. Marijuana and heroin seem to be particular favorites for songwriters and musicians — the latter of which is responsible for its fair share of musical casualties. No wonder they are referenced in so many songs.

There are not so many songs about ritalin, however. Perhaps this is because so few musicians have direct experience with it. (Or perhaps because they have retired by the time they consider ritalin for their kids.) Given the controversy over whether ritalin is over-prescribed, it's certainly a worthy song subject.

I don't know what inspired Chevelle to write "Vitamin R (Leading Us Along)," but it is clearly an anti-ritalin tune. I like the song, but do not know enough about ritalin to endorse the message. (For those interested Michael Fumento makes a powerful defense of ritalin here; and see responses here). It also does not hurt that Chevelle puts on a forceful live show, and this song was a highlight of their set when I saw them last summer.

The video for "Vitamin R (Leading Us Along)" is available on Chevelle's website (registration required). The lyrics are below:

Some will learn, many do
Cover up or spread it out
Turn around had enough
Pick and choose or pass it on
Buying in heading for
Suffer now or suffer then
It's bad enough, I want the fear
Need the fear cause he's alone
And he has become

Well if they're making it, making it
Then they're pushing it, pushing it
And they're leading us along
The hassle of, hassle of
All the screaming fits, screaming fits
That panic makes remorse

After all, what's the point
Course levitation is possible
If you're a fly, achieved and gone
There's time for this and so much more
It's typical create a world
A special place of my design
To never cope or never care
Just use the key cause he's alone

Over and over a slave became
Over and over a slave became
Over and over a slave became
Over and over it's slave

Well if they're making it
Then they're pushing it
And they're leading us a long
The hassle of
All the screaming fits
That panic held before
Will if they making it
And they're pushing it
And they're leading us along
Like a cancer caused
All the screaming fits
And their panic makes remorse