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Saturday, June 24, 2006
ABA Violates Antitrust Consent Decree:
In case you missed it, here's yesterday's DOJ press release regarding the ABA's antitrust consent decree:
JUSTICE DEPARTMENT ASKS COURT TO HOLD AMERICAN BAR ASSOCIATION
IN CIVIL CONTEMPT
ABA Acknowledges Consent Decree Violations and Agrees to Pay $185,000
WASHINGTON -- The Department of Justice filed a petition today asking the U.S. District Court for the District of Columbia to hold the American Bar Association (ABA) in civil contempt for violating multiple provisions of a 1996 antitrust consent decree. The consent decree prohibited the ABA from misusing the law school accreditation process. The Department also filed a proposed order and a stipulation in which the ABA acknowledges the violations alleged in the Department's petition and agrees to reimburse the United States $185,000 in fees and costs incurred in the Department's investigation. The proposed order is subject to court approval.
"The Antitrust Division takes compliance with court decrees very seriously," said Thomas O. Barnett, Assistant Attorney General in charge of the Department's Antitrust Division. "No one is above the law and those who do not comply with their obligations under court orders must be prepared to face consequences."
In June 1995, the Department filed an antitrust lawsuit against the ABA in U.S. District Court for the District of Columbia. In its complaint, the Department alleged that the ABA had allowed its law school accreditation process to be misused by law school personnel with a direct economic interest in the outcome of accreditation reviews, resulting in anticompetitive conduct. In 1996, the court entered an agreed-upon final judgment prohibiting the ABA from fixing faculty salaries and compensation, boycotting state-accredited law schools by restricting the ability of their students and graduates to enroll in ABA-approved schools, and boycotting for-profit law schools. The final judgment also established the framework of structural reforms and compliance obligations that are the subject of today's filing.
According to today's petition, and as acknowledged by the ABA, the ABA violated six structural and compliance provisions in the 1996 consent decree on one or more occasions. Those provisions included requirements that the ABA:
Annually certify to the court and the United States that it has complied with the terms of the final judgment;
Provide proposed changes to accreditation standards to the United States for review before such changes are acted on by the ABA's Council of the Section of Legal Education and Admissions to the Bar;
Provide briefings to certain ABA staff and volunteers concerning the meaning and requirements of the decree;
Obtain annual certifications from certain ABA staff and volunteers that they agree to abide by the decree and are not aware of any violations;
Ensure that no more than half of the membership of the ABA's Standards Review Committee be comprised of law school faculty; and
Include on the on-site evaluation teams, to the extent reasonably feasible, a university administrator who is not a law school dean or faculty member.
The ABA is a national professional association for lawyers headquartered in Chicago. The ABA's Council of the Section of Legal Education and Admissions to the Bar is the only national accrediting body for law schools.
Eugene Volokh--Sex Symbol:
Tyler's post failed to note the most important Comment posted there:
jens said...
Eugene Volokh.
I'm pretty sure he is married already, but there must have been a time when he was not.
I am married, and straight, but I think I would STILL consider dating him if I had the chance!
Friday, June 23, 2006
Another Failure of the Kelo Backlash - President Bush's Executive Order on Takings:
In an earlier post, I described how the political backlash against the Supreme Court's decision Kelo v. City of New London has largely fallen short of the mark, despite massive public outrage against the condemnation of property to promote "economic development" by other private parties. I noted that numerous state legislatures are enacting laws that supposedly ban Kelo-style but actually achieve little or nothing.
Today's presidential executive order on eminent domain continues this pattern. On the surface, the order seems to forbid federal agencies from undertaking economic development condemnations. But its wording undercuts this goal. Here is the key part of the text (hat tip: InstaPundit):
By the authority vested in me as President by the Constitution and the laws of the United States of America, and to strengthen the rights of the American people against the taking of their private property, it is hereby ordered as follows:
Section 1. Policy. It is the policy of the United States to protect the rights of Americans to their private property, including by limiting the taking of private property by the Federal Government to situations in which the taking is for public use, with just compensation, and for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken.
Read carefully, the order does not in fact bar condemnations that transfer property to other private parties for economic development. Instead, it permits them to continue so long as they are "for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken."
Unfortunately, this language validates virtually any economic development condemnation that the feds might want to pursue. Officials can (and do) always claim that the goal of a taking is to benefit "the general public" and not "merely" the new owners. This is not a new pattern, but one that bedeviled takings litigation long before Kelo. Indeed, the New London authorities made such claims in Kelo itself and they were accepted by all nine Supreme Court justices, including the four dissenters, as well as by the Connecticut Supreme Court (including its three dissenters). This despite considerable evidence that the takings were instigated by the Pfizer Corporation, which at the time hoped to benefit from them. Not all the evidence of Pfizer's role was available at the time of the trial, but enough was submitted to demonstrate that Pfizer played a crucial role (e.g. - the head of a firm that helped prepare New London's development plan testifed that Pfizer was the "10,000 pound gorilla" behind the takings). Nonetheless, the courts accepted New London's claims that its officials acted in good faith, since they could have been intending to benefit the public as well as Pfizer.
As the Kelo experience shows, it is usually difficult or impossible to prove that such claims are insincere. Indeed, at least to a certain extent, the claims will always be correct. Virtually any economic development condemnation provides at least some benefit to "the general public," if only because the productivity of the new owner's business is likely to increase, thereby promoting development and raising tax revenue. The problem, as I have documented in great detail elsewhere, (e.g., here and here), is that these benefits can usually be achieved by methods other than coercion, and are unlikely to be worth the cost of condemning the property and eliminating preexisting uses.
Even had President Bush's order been better worded, its impact would have been limited. The vast majority of economic development condemnations are undertaken by state and local governments, not by federal agencies. Nonetheless, it is unfortunate that the Bush administration has chosen to join in the charade of pretending to do something about Kelo while actually doing little or nothing.
UPDATE: Tim Sandefur of the Pacific Legal Foundation takes a similarly critical view of the executive order. I agree with almost everything Tim says. However, I am not as certain as he is that "it’s gratifying to see the President take an interest in this issue." Bogus reform efforts such as this one create a danger that the public will be falsely persuaded that the problem has been solved; indeed, I suspect that in some cases that is part of their purpose (though I have no evidence of the Bush Administration's motives for issuing this order). Sometimes, a bogus reform is worse than no reform at all.
UPDATE #2: Some commenters cite Section 3 of the order (which I did not quote, but did link) and argue that it provides a good list of the situations where eminent domain should be allowed. I agree that Section 3 would be quite defensible if it were an exhaustive list of the situations where the order permits federal agencies to condemn property. In fact, however, Section 3 is a list of exceptions to the rule set out in Section 1. This is evident from the fact that Section 3 is entitled "Exclusions" and begins with the words:
Nothing in this order shall be construed to prohibit a taking of private property by the Federal Government, that otherwise complies with applicable law, for the purpose of: [a list of purposes follows].
Therefore, Section 3 merely lists situations where property can be condemned even if doing so violates the rule set out in Section 1: that condemnations must not be "merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken."
What I Read on Vacation:
Just returned from a week-long vacation in Acadia National Park. Turns out that when you have a ten-month old baby who naps multiple hours per day you actually do more reading than hiking on vacation. Since Jonathan asked what I planned to read this summer, I figured I'd pass along what I read already. I enjoyed your suggestions as well in the Comments to Jonathan's post. This being vacation, most of the books here are designed for amusement rather than reflection.
Flyboys: I thought this was quite a compelling read about WWII in the Pacific. It has been critized, with some merit I think, as unjustly suggesting a substantial amount of moral equivalence between the US and Japan. Moreover, by the end of the book it is not clear why Bradley needs to push on that theme so heavily. Nonetheless, I found it fascinating read on historical events with which I had previously been unacquainted. I am more familiar with the war in the Atlantic than the Pacific, so a lot of this was new to me--I'd be interested in your reactions to the historical accuracy of the book and Bradley's judgments.
The Legend of Bagger Vance: A fun read. Ostensibly a golf novel, it seems to be really a riff on eastern philosophy as told through a golf game. I love reading about Bobby Jones and Walter Hagen also, who are the other key characters in the book. Much better than the movie--Will Smith was a particularly inapt choice as Bagger in the movie.
Chronicles of Narnia, Vol. 3--A Horse and His Boy: I never read Narnia as a kid, so I'm reading them now. I really enjoyed this entry.
The Junction Boys: This is a book about Bear Bryant's first training camp when he was coach at Texas A&M and the subsequent couple of seasons. The point of the book seems to have been to suggest that Bryant's harsh methods were somehow justified as a means to toughen up his team. I usually appreciate tough guys as football coaches, but I have to confess that I was so nauseated by the barbarism of Bryant's methods that I couldn't really appreciate the supposed genius of his techniques.
Nexus by Mark Buchanan: This book is from a couple of years ago and was highly recommended to me and I finally got around to it. The subtitle is "Small Worlds and the Groundbreaking Science of Networks." A few interesting things here, but overall I was disappointed. His applications to the social sciences, such as economics, was especially weak. Buchanan seems unacquainted with Hayek and spontaneoud order theory, and it seems like Hayek pretty much said everything Buchanan had to say, just a lot better. Overall, a disappointment.
Night, by Elie Wiesel: He was the Dartmouth Commencement speaker, so I read the book which I hadn't previously read. Interesting book that captures a unique view of the Holocaust through the eyes of a child.
Joe McCarthy, by Arthur Herman--I'm about halfway through this and it is quite fascinating. Does the seemingly impossible of trying to tell a balanced story about McCarthy and puts it in the historical, and especially political context, of the era. Not too many good guys come out of Herman's story. Unusually well written and quite readable as well.
On tap for the rest of the summer:
Fire and Sword by Henryk Sienkiewicz
Manliness by Harvey Mansfield
You Can't Say That! [with apologies to David Bernstein]
So Ozzie Guillen, the outspoken and outrageous (and very successful) manager of the Chicago White Sox, has been fined by the Commissioner of Baseball and sent to a re-education facility -- oops, I mean "has to undergo sensitivity training" -- for calling a local Chicago reporter a "fag." [Here's the ESPN story] I don't know about you, but I would not want the job of being Ozzie Guillen's sensitivity trainer. . . .
Against Preempting The Korean Missile:
In today's Washington Post, Charles L. "Jack" Pritchard, former special U.S. envoy for negotiations with North Korea, strongly disagrees with the suggestion by William Perry and Ashton Carter that the U.S. should consider preempting North Korea's missile test.
For 1,971 days the Bush administration ignored North Korea's missile program as unimportant and unthreatening to the security of the United States. Then it woke up. Unfortunately, the alarm clock was North Korea's preparation to test a long-range missile. By simply putting a Taepodong ICBM on the launch pad, North Korea has managed to turn truly smart people into foolish ones. . . .
So what do we do now? Attack North Korea and cross our fingers in the hope it doesn't annihilate Seoul or pass weapons of mass destruction to al-Qaeda? Refuse to talk to the North Koreans? Take them to the U.N. Security Council and slap their wrists?
Make no mistake: A missile test is a step in the wrong direction, and the appropriate first response would be for the United States to reimpose the specific sanctions that were lifted in 2000 as a direct result of the missile moratorium.
But the missile test is not a violation of anything more than our pride, ripping a gaping hole in the false logic that talking with the North Koreans somehow rewards and empowers them. To the contrary, we should be opening avenues of dialogue with Pyongyang. . . .
By not talking with North Korea we are failing to address missiles, human rights, illegal activities, conventional forces, weapons of mass destruction, terrorism and anything else that matters to the American people. Isn't it about time we actually tried to solve the problem rather than let it fester until we blow it up?
Truth, Justice, the American Way, and Soccer Referees:
The refs are working hard to screw the World Cup up, proving the wisdom of the old adage: "players win games, coaches lose games, and refs ruin games." The patently absurd penalty called against the US in its game against Ghana was not the worst of it. My two candidates for the worst of it:
In the France-Korea game, Zinedine Zidane -- by common consent the greatest and most elegant player of his generation -- got the stupidest yellow card of them all; he bumped into and knocked down a Korean defender a second or two after the keeper had made a save ... a truly trivial offense, and clearly accidental. But because it was his second yellow card (he got one in the first game), he has to sit out today's match agaoinst Togo. The truly awful part of it is that (a) he announced several months ago (front page news, literally, in Italy, though I'm sure it wasn't even mentioned here in the US) his retirement from soccer after this World Cup, AND (b) France's next match might be their last in the tournament (if they don't win). So it adds up to this: because some jerk of a ref wanted to teach him some stupid lesson, we might never see Zidane play soccer again. It's truly appalling and depresses me no end (not least because now I really HAVE to root for the French to win their next game). This morning, in Tunisia-Ukraine, the score is tied 0-0; if the Tunisians win, they go through to the second round. Tunisia has a free kick, and one of the Ukrainian defenders sticks his arm up in the air and deflects the ball. As clear a penalty as you could ask for, but the ref does nothing. Five minutes later, the Ukrainian striker Andrey Schevchenko has the ball in front of the keeper, and trips over his own feet (probably intentionally, to draw a penalty) -- and he gets the call! 1-0 Ukraine -- a two-goal swing.
Here's what interesting, though. I think that this is, paradoxically (and possibly perversely), part of what people who are obsessed with soccer (all 1.5 billion or so of us)find compelling about the game. It has, like life, an irreducible element of capriciousness and luck. American football deals with this by sending out about 15 referees and, since that does not seem to be enough to guarantee that calls are made correctly, using instant replay in addition. It is equally absurd, though in a different, and I think peculiarly American, sort of way. Tunisia got screwed; it is too bad. But that,sometimes, is the way it goes . . .
Do smart women want to date lawyers?
Megan from Sacramento, who has a law degree, opines:
I liked the people I went to law school with, and they are more socially adept than many of my friends, but going to law school did not improve my view of lawyers. I thought law was insular and self-reinforcing, and the lack of an external reference means that lawyers aren't grounded by something that could prove them wrong. I never trusted that there was a solid core to law, so I don't know what the fundamental limits are to someone for whom law is a practice and discipline.
Some generalizations that make me doubt I'll date a lawyer:
Lawyers are often innumerate and proud of it, which makes me embarassed for them.
They went to law school because they weren't sure who they were, stayed because it is all-engrossing, and became lawyers because it is ****ing hard not to after law school. But I don't think many of them like it, and I don't think most ever made an affirmative choice to find what they love and do it.
Many of them were whiny in law school, especially about how hard they were working. My impression was that whatever lightweight degree they did before law school had never shown them what it meant to work hard. Law school was the easiest of my graduate degrees (but then, I am very verbal and didn't care about my grades).
Lawyers themselves are often contempuous of their career and peers. It is hard to respect them more than they respect themselves.
I would date a lawyer who convinced me it was what he wanted to be doing, had an awareness that it is both a ridiculous process and has important potential for doing good, and was grounded in the physical world. I don't think those lawyers are common, though.
Here is another post by Megan.
Thursday, June 22, 2006
Dixon v. United States:
The Supreme Court handed down a very interesting decision today on how to interpret a criminal law defense when Congress hasn't even said that the defense exists. I blogged all about it here.
Why Missouri Right of Publicity Law Matters:
Commenter agog writes, apropos the Tony Twist right of publicity case,
So, if you're an artist here's another reason not to live in Missouri. Terrible decision.
If only the decision were that limited! Unfortunately, it affects writers, filmmakers, and other artists throughout the country (and throughout the world, if their work is distributed in the U.S.).
The dominant U.S. choice-of-law rule is that right of publicity cases are decided using the law of the jurisdiction in which the plaintiff lives (or in which he was living when he died). That means that if John Ashcroft moves back to Missouri, someone writes a novel in which one of the characters is named John Ashcroft, and Ashcroft sues -- even outside Missouri -- most courts will apply Missouri law. Ashcroft might therefore win if the jury decides that the novel/movie/song used his name primarily for "commercial" purposes rather than "expressive" or "artistic" purposes.
Even if this weren't so, and Ashcroft had to sue in Missouri court, he could still probably get jurisdiction over the defendants, even if they had never set foot in Missouri. He could certainly get jurisdiction over the nationwide media organizations that publish and distribute the work. So Missouri law would affect what commercially distributed books, films, or other works anyone, whether in Missouri or not, can create.
"Dartmouth Alumni Battles Become Spectator Sport":
The New York Times has a piece on the election of the board of trustees at Dartmouth, including that of our co-blogger Todd.
NRO Summer Reading List:
National Review Online asked a bunch of us to name two or three books we would be reading this summer. As usual, much of my summer will be spent on reading work-related books and articles — and I wouldn't subject NRO or VC readers to those recommendations. With that in mind, here was my contribution to the NRO symposium: An Army of Davids: How Markets and Technology Empower Ordinary People to Beat Big Media, Big Government, and Other Goliaths by Glenn “Instapundit” Reynolds. I admit I’m already half-way through this book, and it’s great — an exhilarating and provocative exploration of how technological change is empowering individuals and spurring the creation of a new, dispersed entrepreneurial class. Given Glenn’s own pioneering efforts as a blogger extraordinaire, the insights of this book should be no surprise.
A Scanner Darkly by Phillip K. Dick. This novel by the ground-breaking, proto-cyberpunk sci-fi author will soon find its way to the silver screen. Given I’m a big fan of Dick’s work (including Do Androids Dream of Electric Sheep?, the book upon which Blade Runner was based), and that Hollywood is quite good at making a hash of his stories (see, e.g., Paycheck), I want to read the book before seeing the movie.
In Defense of Freedom: And Related Essays by Frank S. Meyer. This collection by former National Review senior editor Frank Meyer is a must read — and worth re-reading (as I plan to do this summer). It sets forth the uniquely American brand of conservatism, labeled “fusionism,” that helped define the modern American conservative movement and makes a powerful case for informing conservative politics with a more libertarian view of government. The full symposium is here. What books are VC readers planning to read this summer?
Preempting the Korean Missile:
From an article in today's Washington Post by former Clinton Defense honchos Aston Carter and William Perry: Should the United States allow a country openly hostile to it and armed with nuclear weapons to perfect an intercontinental ballistic missile capable of delivering nuclear weapons to U.S. soil? We believe not. The Bush administration has unwisely ballyhooed the doctrine of "preemption," which all previous presidents have sustained as an option rather than a dogma. It has applied the doctrine to Iraq, where the intelligence pointed to a threat from weapons of mass destruction that was much smaller than the risk North Korea poses. (The actual threat from Saddam Hussein was, we now know, even smaller than believed at the time of the invasion.) But intervening before mortal threats to U.S. security can develop is surely a prudent policy.
Therefore, if North Korea persists in its launch preparations, the United States should immediately make clear its intention to strike and destroy the North Korean Taepodong missile before it can be launched. This could be accomplished, for example, by a cruise missile launched from a submarine carrying a high-explosive warhead. The blast would be similar to the one that killed terrorist leader Abu Musab al-Zarqawi in Iraq. But the effect on the Taepodong would be devastating. The multi-story, thin-skinned missile filled with high-energy fuel is itself explosive -- the U.S. airstrike would puncture the missile and probably cause it to explode. The carefully engineered test bed for North Korea's nascent nuclear missile force would be destroyed, and its attempt to retrogress to Cold War threats thwarted. There would be no damage to North Korea outside the immediate vicinity of the missile gantry.
The U.S. military has announced that it has placed some of the new missile defense interceptors deployed in Alaska and California on alert. In theory, the antiballistic missile system might succeed in smashing into the Taepodong payload as it hurtled through space after the missile booster burned out. But waiting until North Korea's ICBM is launched to interdict it is risky. First, by the time the payload was intercepted, North Korean engineers would already have obtained much of the precious flight test data they are seeking, which they could use to make a whole arsenal of missiles, hiding and protecting them from more U.S. strikes in the maze of tunnels they have dug throughout their mountainous country. Second, the U.S. defensive interceptor could reach the target only if it was flying on a test trajectory that took it into the range of the U.S. defense. Third, the U.S. system is unproven against North Korean missiles and has had an uneven record in its flight tests. A failed attempt at interception could undermine whatever deterrent value our missile defense may have.
The Right of Publicity, the First Amendment, Comic Books, and Hockey Players:
The Missouri Court of Appeals has upheld the $15 million damages award against comic book author (Spawn and more) Todd MacFarlane, who named a character after hockey player Tony Twist. The award was based simply on MacFarlane's use of Twist's name in the comic books -- a supposed infringement of the right of publicity -- and not on any alleged defamation.
When the Missouri Supreme Court allowed the case to go forward, I filed an amicus brief on behalf of writers
Michael Crichton, Larry David, Jeremiah Healy, Elmore Leonard, Harry Shearer, Ron Shelton, Scott Turow, Paul Weitz, and The Authors Guild, Inc. supporting the petition for U.S. Supreme Court review. The Justices declined to hear the case, but I hope it was because there wasn't yet a final decision, since the Missouri Supreme Court had sent the case back down for a new trial. (The lack of a final verdict, especially in a case coming from state courts, is recognized as a very serious, though not insuperable, procedural obstacle to U.S. Supreme Court review.)
If MacFarlane asks the Missouri Supreme Court to review the case, and the Missouri Supreme Court either refuses to review the case or affirms the verdict, then there will be a final judgment, and the case will be procedurally ripe for U.S. Supreme Court review. And I think the U.S. Supreme Court then ought to take it, especially given the inconsistency between this case and a California Supreme Court case also involving the right of publicity, the First Amendment, comic books, and characters named after semi-famous figure (though there two singers rather than a hockey player). Mind you, I don't say "will take it," but "ought to take it."
There's a good deal more to say about the case, and the brief I wrote (with the help of my coblogger and actual Supreme Court Bar member Erik Jaffe) says some of it. But here, I just wanted to repeat one observation from the brief, which I think might be illuminating for some other "It's speech! No, it's commerce!" debates.
The Missouri Supreme Court, which upheld Twist's general legal theory, faced a potential obstacle to its ruling: Fiction writers in fact often name characters after famous people, for a variety of reasons. Sometimes they include those people as characters, as in the movies Forrest Gump and Zelig, or in Steve Martin’s play Picasso at the Lapin Agile (which has as its lead characters Pablo Picasso and Albert Einstein). Sometimes writers just refer to those people in passing, or name characters after them -- consider Yogi Bear; the characters Bernard Marx, Lenina Crowne, and Benito Hoover in Aldous Huxley's Brave New World; characters nicknamed after Ginger Rogers and Fred Astaire, in Federico Fellini's Fred & Ginger; and the reference to Joe DiMaggio in Paul Simon's Mrs. Robinson. The list could go on.
The Missouri Supreme Court tried to deal with by creating a distinction between (a) speech that is said “with the intent to obtain a commercial advantage” -- speech that is “predominantly a ploy to sell comic books” -- and (b) “artistic or literary expression.” But this distinction just can't work.
Most successful creators intend both to obtain a commercial advantage and to express themselves. By expressing yourself in a way that readers want to read, you make money. By making money, you get the free time needed to express yourself. The prospect of making more money gives you an incentive to produce more works, and to make your works better.
That is a basic aspect of the free market (see Adam Smith). And it's also the view embodied in the Constitution’s Copyright and Patent Clause. As the U.S. Supreme Court has said, "[T]he Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas."
And of course from the reader's and the public's perspective, creative works add to public debate, to the "marketplace of ideas," or just to the stock of entertainment regardless of the speaker's motive. A biography is valuable whether the biographer is motivated predominantly by “commercial advantage,” by a desire for “literary expression,” or by both. Likewise for a comedy routine that mentions a famous person, or a story or novel (whether purely textual or graphic) that does the same.
Trying to distinguish "artistic" or "literary" expression sold for money from "commercial" expression that consists of art and literature thus makes no sense. (I set aside here commercial advertising, which is a separate First Amendment category; MacFarlane's comic books don't fit within that category.) People are often tempted by this distinction, because of many people's sense that commerce is "low" and art is "high." That is a temptation that must be resisted. Related Posts (on one page): - Why Missouri Right of Publicity Law Matters:
- The Right of Publicity, the First Amendment, Comic Books, and Hockey Players:
Haven't Had Enough of the Great Usage Debate?
OK, then, head over heels. Discuss.
Puzzle:
Here's one Sasha came up with -- what do these have in common, and can you name more?
Die. Medium. Person. Penny.
Can You Say That (Speak English) at Geno's Steaks?:
A very reasonable column by Jeff Jacoby:
It is one thing to say that places of public accommodation may not refuse service on the basis of national origin. It is something much more radical to say that a sign exhorting customers to speak English should be illegal, too. Anyone offended by Vento's views is free to boycott his shop and urge others to do the same. But nothing in the Constitution gives those who are offended the right to silence someone else's speech [this, as most VC readers know, is the primary theme of You Can't Say That!]. Agree or disagree with Vento's views, a government that can punish him for expressing them in public is a government that threatens us all.
Wednesday, June 21, 2006
Usage:
Commenter Luke faults the Webster's Dictionary of English Usage argument about times less and times more with this:
"Everyone" understands what I mean when I say "axe you a question," so presumably we can all start saying that in the courtroom and in business meetings, etc. with no problems, right? It's no different than this case. It would take "a good deal of effort" to not understand what I meant, after all.
The trouble with "axe" for "ask" isn't that the spelling is somehow "illogical." After all, everyone understands that the pronunciation "iern" means "iron"; that's perfectly proper. The pronunciation "kernel," in context, means "colonel"; that's proper, and we wouldn't phonetically say "colonel" instead.
The difference between "iern"/"kernel" and "axe" is that "axe"-for-"ask" has not established itself well enough in educated speech. Using it therefore makes people think of you as lower-class; that may not be fair, but there it is. To the extent that one can call certain usages "wrong," this one is "wrong," because it departs from standard usage among educated people -- not because it's somehow illogical.
"Times more" and "times less" is standard usage, from Gladstone on down, and has long been standard usage. Most educated English speakers, I suspect, aren't even aware of the controversy over it (unlike with "axe"). So I see no justification for describing it as "wrong" (as opposed to "inelegant" or "likely to cause annoyance among some listeners").
And, yes, if "axe" ever becomes common enough in educated speech, it will become right, just as "ice cream" and "iern" are now right.
One More Example:
Say that someone describes some amount as "100 plus or minus 5." Would you literally interpret this as "100 plus 5 or 100 minus 5," which is to say "105 or 95"? Or would you recognize that it's an idiom -- referring to the mathematical ± symbol, which is itself literally not the same as its components (plus and minus) -- which clearly means "95 to 105"?
If someone says "this estimate is off by a factor of 12," would you insist that it's ambiguous, because it could mean either "the estimate is 12 times [or 1/12th of] the right result," or "this estimate is off by 1, 2, 3, 4, 6, or 12"? Or would you recognize that, in actual English usage, there's no ambiguity at all (except perhaps in extremely unusual circumstances created by unusual contexts)?
Using Ice Cream To Understand Usage Debates:
I've found my invaluable Webster's Dictionary of English Usage (1989) — if you love discussing English usage questions, you must get this — and found this lovely excerpt:
As for ice-cream, there is no such thing, as ice-cream would be the product of frozen cream, i.e., cream made from ice by melting. What is called ice-cream is cream iced; hence, properly, iced cream and not ice-cream.
It's a quote from an 1881 book by Alfred Ayres, and it's quite serious. Are you moved by it? Are you ready to condemn "ice cream" as wrong, wrong, wrong, because it's illogical and English usage that's illogical is therefore an error?
I doubt it, even if you're a sworn foe of "ten times lower." Yet if you're reconciled to "ice cream," and would today find the more logical "iced cream" to be too affected and puzzling to use, consider the point Webster's uses the Ayres quote to make: "It is sometimes instructive to take a look at the usage issues of the past, so that we may be chastened and not so easily carried away by those of the present."
* * *
Webster's, unlike the other usage books I have on my shelf, also speaks to "times less." It points to several commentators who have criticized "times more" and "times less" (which answers my question about whether there were such commentators — there are), but I think responds to them quite soundly. Here are some excerpts (paragraph break added):
The essence of [the critics'] argument is that since times has to do with multiplication it should only be used in comparing the greater to the smaller (as in "ten times as many" ...).... So goes the argument. It has, undoubtedly, a certain mathematical logic to it ....
[But] mathematics and language are two different things .... The question to be asked concerning such a construction as ten times less is not whether it makes sense mathematically, but whether it makes sense linguistically — that is, whether people understand what it means. The answer to that question is obviously yes. Times has now been used in such constructions for about 300 years [citing, among other sources, Gladstone], and there is no evidence to suggest that it has ever been misunderstood.
Webster's also defends "times more" (paragraph break added):
The [entirely different] argument [as to times more] is that times more ... is ambiguous, so that "He has five times more money than you" can be misunderstood as meaning "He has six times as much money as you."
It is, in fact, possible to misunderstand times more in this way, but it takes a good deal of effort.... The commentators regard this as a serious ambiguity, [but h]ere again, it seems that they are paying homage to mathematics at the expense of language. The fact is that "five times more" and "five times as much" are idiomatic phrases which have — and are understood to have — exactly the same meaning. The "ambiguity" of times more is imaginary: in the world of actual speech and writing, the meaning of times more is clear and unequivocal. It is an idom that has existed in our language for more than four centuries [citing examples] ....
Indeed.
Defying the Law in the Name of "Diversity":
One thing that continues to amaze me is how major legal institutions, staffed by lawyers who presumably know the law, are consistently willing to brazenly announce their defiance of the law in the name of diversity. It's not that I'm even always opposed to the relevant programs on their merits [and I'm also not one to equate race-based standards for "benign" purposes with the invidious discrimination of the past, even when I don't think a particular policy is wise]; I just wonder when lawyers decided that they were willing to so openly violate the law, and create liability (and other) risk for themselves and their organizations.
We've seen this in the continuing saga of ABA Standard 211, WalMart's general counsel's office demanding that law firms it works with hire and assign based on race, and I recall that law firm diversity initiatives in some cities seemed to require participating firms to meet "targets" for minority hires, but I don't have citations handy.
Even individual law firms seem to be increasingly inclined to step over the line. Consider the follwoing, from Morgan, Lewis's website (couresty of the Law Firm Diversity blog):
Our dedication to improving diversity within our firm is reflected in the goals of our clients. As a global firm that serves a wide array of national and international companies and institutions, diversity is key to our success. We help clients solve problems and address legal issues by drawing upon the strengths of diverse, knowledgeable and skilled teams. In fact, diversity is just as essential a consideration in the selection of our attorneys as industry expertise, relevant experience, cost-effective staffing, and personal chemistry.
Operating on the reasonable assumption* that "diversity" primarily means "racial diversity", is there a plausibleway of justifying such a policy under Title VII? I don't believe that there is any precedent stating that racial preferences in hiring (as opposed to higher education admissions) for "diversity" purposes are a BFOQ [update: indeed, a learned reader reminds me that there is no BFOQ exception for race in Title VII, though there is a narrow one for sex]. If a disgruntled rejected white applicant ever sued Morgan Lewis for discrimination, what would the defense be?
* "We work hard to develop relationships with law schools, governmental organizations, and undergraduate schools to increase the diversity in our recruitment pool. Morgan Lewis lawyers and staff also participate in and/or sponsor recruitment events for organizations such as the Asian American Legal Defense and Education Fund, the Black Law Students Association, and the National Latina/o Student Conference. In addition, the firm actively recruits at minority job fairs at top law schools all over the country."
[Post edited to make my admitted lack of expertise on Title VII clearer, and also for precision]
UPDATE: In the comments, co-blogger Orin points to this related article by Stuart Taylor. Taylor discusses a recent paper by Richard Sander conluding that (1) minority law school graduates benefit from preferences at major law firms; and (2) such preferences are frequently counter-productive in that they don't result in career advancement for their beneficiaries. I haven't read Sander's paper.
Scoring:
Nice article by King Kaufman over on Salon about scoring (in the World Cup, that is). As he points out, the statistic that the ESPN guys insist on throwing into our faces at every possible opportunity (i.e., "the team that scores first is 21-2-3 in this tournament so far!") is basically meaningless; in a low-scoring sport like soccer, scoring any goal is crucial, so the fact that the team that scores first wins much of the time is obvious and uninteresting. The interesting statistic is the one they never mention: as Kaufman puts it:
If a goal is scored and ESPN flashes a graphic saying, "Teams that have scored first are 22-3-3," I, the typical American sports fan who doesn't care about soccer, will think, "Well, there's about a four-in-five chance that this baby's over. I believe I will turn off the TV, kick my dog, curse some foreigners and play with my assault rifle."
But if that graphic said, "Teams that have scored second are 17-2-3," I'm going to want to stick around to see which team can come up with that all-important tally. Better for me, better for ESPN and way better for the dog.
Tuesday, June 20, 2006
Ten Times Lower:
A reader writes, apropos my Slate piece,
Canada cannot have crime rate ten times lower than the crime rate in the U.S. It can have crime rate of one tenth the crime rate of the U.S.
I've heard this objection before, but I'm just not sure I understand its foundation. Indeed, if "X times lower" meant "lower by X times the original amount," "ten times lower" would make little sense (except if for some reason you said that -9 was ten times lower than 1). Or if you somehow just defined "times lower" as an error, it would be, by definition, an error.
What I don't grasp is what justification, besides the objector's own view of what the language should be, there is for this. This is, to my knowledge, a common part of normal English usage. It's not confusing. It's not illogical unless one defines "lower" in a pretty strange way.
Even if one is a prescriptivist, who argues that a statement is bad English if it doesn't conform with The Authorities, what Authorities actually condemn this? There might be some, and please let me know if there are, but I just don't know of any, and my quick and dirty search didn't come up with any.
Naturally, if you think that this usage is ugly or annoying, I can't really argue with that. And if enough people think that, one might want to avoid the usage simply to avoid annoying one's readers. But I took the "cannot" to mean "cannot, without violating the rules" rather than "cannot, without annoying me." Where are those rules set down?
Missile Defense "Operational"?
Reuters reports the following:
The United States has moved its ground-based interceptor missile defense system from test mode to operational amid concerns over an expected North Korean missile launch, a U.S. defense official said on Tuesday.
The official, speaking on condition of anonymity, confirmed a Washington Times report that the Pentagon has activated the system, which has been in the developmental stage for years.
"It's good to be ready," the official said. . . .
While military officials . . . note the United States has a limited missile defense system, they have so far declined to comment on any details about the capabilities or potential use of the system to intercept a North Korean missile.
This is not an issue I have followed much, but given the little I had read in recent years, this story comes as a surprise. Are there readers who can shed light on whether this means missile defense is a reality? And, if so, what does this mean for U.S. security? Or is this just much ado about nothing?
Bushism of the Day:
Here's today's Bushism of the Day, "the president's accidental wit and wisdom," from Slate:
"So we'll bring our ideas, they'll bring theirs, let's clarify the differences, let's don't say bad things about our opponents."
Whoops, sorry, wrong President -- that's actually from President Clinton. The Bushism of the Day today is really this:
"Let's don't just talk about it. Let's actually do it, by passing the legislation."
Rats! Screwed up again -- that's actually from Vice President Gore. Here, and this time I'm serious, is today's actual Bushism of the Day:
"I tell people, let's don't fear the future, let's shape it." -- Omaha, Neb., June 7, 2006
As best I can tell, the only supposed flub -- the only supposed humor -- here is "let's don't." (Without that, the phrase isn't terribly rich in content, but neither are "the only thing we have to fear is fear itself," or a wide range of other perfectly normal exhortations from political leaders.)
Yet it's a flub only in the sense that departure from the standard Northeastern/West Coast elite spoken English is a flub. If you search for "let's don't," you'll find it used routinely in spoken English, chiefly (as best I can tell from my searches) by people from flyover country.
The only usage guide I could find that discusses "let's don't" is "The Columbia Guide to Standard American English", which reports, "There are three negative idioms: Let’s not stay, Don’t let’s stay, and Let’s don’t stay. [I infer that 'stay' is just an example here, and the idiom equally works with other verbs.] All are Standard, although Let’s don’t is more typically American than Don’t let’s, which is more typically British." Sounds right to me.
My Three Suggestions for Improving Slate:
On occasion of Slate's 10th anniversary celebrations, its editors very graciously invited several of the magazine's "most persistent critics" to offer their criticisms in Slate's pages. Here are my criticisms, which I hope are constructive.
Monday, June 19, 2006
The Case of Marilyn Musgrave and the Dog Feces:
My latest media column for the Rocky Mountain News looks at coverage of the "activist" who put dog feces in the office mail slot of Rep. Marilyn Musgrave. Plus, News columnist Paul Campos misreads InstaPundit, Diane Carman falls for General Motors trolley car hoax, and The Nation wrongly charges the Colorado Rockies baseball team with racism.
Technology enabling: For folks who would like a RSS feed of my website, here's the URL: http://www.davekopel.org/feed.xml. I'm brand new to RSS, so suggestions for improvement are welcome. For a more retro technology, here's the link to the PDA-enabled version of my home page: http://www.davekopel.org/PDA.htm.
Civil Rights Commission Hearing on ABA "Diversity" Policy:
Inside Higher Ed and the Chronicle of Higher Education (subscription only) are carrying stories about Friday's U.S. Commission on Civil Rights Hearing on proposed ABA Standard 211, which would in effect require law schools to use racial preferences in admission or risk their accreditation. Unfortunately, neither article is very good, and neither captures the essence of what was said, especially by me (just ignore anything I was supposed to have said).
Here, in my view, are some of the important things that came up in the hearing:
(1) Professor Richard Sander of UCLA and Professor Richard Lempert of Michigan disagreed strongly on the effectiveness of affirmative action (read: preferences) as a means of aiding African Americans who benefit from them and attend elite law schools. They disagreed, especially, on what the social science evidence shows, but strongly agreed that appointing a panel of neutral experts to review the evidence would be very useful. As I understood it, Professor Lempert was not at all confident that similar benefits accrue to the purported beneficiaries of preferences at lower-ranked law schools, which (as a emphasized in my testimony) have a much lower (and often disastrously low) rate of success in graduating such students and preparing them for the bar.
(2) The ABA has now amended proposed Standard 211 to state that law schools need not (and should not) violate state law to use racial preferences to satisfy the standard. The original standard seemed to require law schools to violate the law (and was supported in this regard by a coalition of left-wing "civil rights" organizations).
(3) Officially, the ABA maintains that not only will the new Standard not require law schools to engage in racial preferences, but that the ABA has never tried to pressure or force law schools to use such preferences in the past. The latter claim, as is well-known in the legal academy, is simply false. This may be the result of accreditation committee members going beyond the letter or even spirit of the law, but no one wants to butt heads with officials who hold an institution's accreditation in their hands.
(4) Various commissioners focused on the fact that the proposed standard's official "interpretations" requires the ABA to consider not just law school diversity recruiting efforts, but also results. The ABA representative (Dean Steven Smith) had no good answer when asked how--given the unfortunately small pool of "qualified" African American applicants available to elite schools--a results-based standard could be met without resort to preferences.
(5) Several commissioners expressed grave concern about the extraordinarily high rate at which African American law students at non-elite law schools either fail out of law school or fail to pass the bar exam (over 50% at the bottom two-thirds of law schools), and about the fact that while the new standard requires law schools to pursue diversity in admissions, it says nothng about the need to ensure that admittees actually succeed in becoming attorneys. Dean Smith acknowledged that the ABA committee that drafted the Standard has no data regarding the failure rate of African American matriculants at particular law schools, nor about how the new standard may worsen this rate.
(6) Several commissioners expressed concern, shared by myself, Prof. Lempert, and Professor Sander, that many "diversity" candidates have no idea regarding the extent of the preferences that they receive, or how this might affect their chances of successfully completing law school and passing the bar exam. Even Dean Smith acknowledged that it might be a good idea to make more information about the success rate of matriculants available to prospective students, if such data could be gathered accurately. There was significant support among the commissioners for a pending bill in Congress that would require universities to reveal far more about their admissions policies, especially with regard to preferences.
(7) Commission chairman Reynolds, among other commissioners, expressed concern that the ABA was trying to force all law schools to adopt the ABA's view that racial diversity, even at the expense of a dual admissions policy (Asians and whites admitted under one standard, Hispanics and Blacks under another), is a crucial element of legal education. Reynolds suggested that Justice O'Connor's opinion in Grutter was in large part based on the Supreme Court's respect for the academic freedom and independence of law schools to decide their own policies on diversity, but that the ABA was now trying to take away that freedom from dissenting law schools, and ironically citing Grutter to support this gambit.
(8) I can't confirm this, but I heard during the break that the renewal of the ABA's privilege to accredit law schools for federal purposes has been held up by the Department of Education due to concern over Standard 211.
The Commission's report that will result from this should make interesting reading.
For previous related posts, click here.
Len Bias, RIP:
Today is the 20th anniversary of the tragic death of U. of Maryland basketball star and Boston Celtics No. 2 draft pick Len Bias.
Many experts, including Duke Coach Mike Krzywewski in the above-linked article, compare Bias' talent to that of his ACC near-contemporary Michael Jordan. While I doubt that Bias would really have been as great as Jordan, he would very likely have been an All Star-level player who could have extended the life of the Celtics dynasty of the 1980s.
Congratulates to Judge Sandra Ikuta:
How Appealing reports:
The U.S. Senate has confirmed Sandra Segal Ikuta to serve on the U.S. Court of Appeals for the Ninth Circuit by a vote of 81-0: I will link to the official roll call tally once it becomes available.
Many congratulations to Judge Ikuta, a UCLA Law School alumna and a former clerk for Judge Kozinski and Justice O'Connor!
Verb. Sap.:
Didn't know of this Latin abbreviation until I ran across it in Justice Scalia's Youngblood v. West Virginia dissent today. It's apparently short for verbum sapienti, which means "a word to the wise [is enough]." Learn something new every day; I can't say I'm likely to use it in my own prose, but at least now I'll understand it when I see it elsewhere.
U.S. Civil Rights Commission Seems To Call for Campus Speech Codes:
The Commission's April 3 "Findings and Recommendations ... Regarding Anti-Semitism" state:
The United States Commission on Civil Rights issues the following findings and recommendations regarding incidents of anti-Semitic harassment at college campuses throughout the Nation: ...
[Finding] 1. Many college campuses throughout the United States continue to experience incidents of anti-Semitism.... While incidents of threatened bodily injury, physical intimidation or property damage are now rare, they have been alleged on some campuses. On other campuses, students have alleged patterns of threatening or intimidating behavior, derogatory remarks, vandalism, and use of Swastikas and other symbols of hatred or bigotry. When severe, persistent or pervasive, this behavior may constitute a hostile environment for students in violation of Title VI of the Civil Rights Act of 1964.
[Finding] 2. On many campuses, anti-Israeli or anti-Zionist propaganda has been disseminated that includes traditional anti-Semitic elements, including age-old anti-Jewish stereotypes and defamation. This has included, for example, anti-Israel literature that perpetuates the medieval anti-Semitic blood libel of Jews slaughtering children for ritual purpose, as well as anti-Zionist propaganda that exploits ancient stereotypes of Jews as greedy, aggressive, overly powerful, or conspiratorial. Such propaganda should be distinguished from legitimate discourse regarding foreign policy. Anti-Semitic bigotry is no less morally deplorable when camouflaged as anti-Israelism or anti-Zionism.
[Finding] 3. Substantial evidence suggests that many university departments of Middle East studies provide one-sided, highly polemical academic presentations and some may repress legitimate debate concerning Israel. This would include, for example, any program in which a student is told that she may not speak in a discussion of Middle East politics on the ground that she has ethnic Jewish physical characteristics....
[Recommendation] 1. [The U.S. Department of Education Office for Civil Rights] should protect college students from anti-Semitic and other discriminatory harassment by vigorously enforcing Title VI against recipients that deny equal educational opportunities to all students. University leadership should affirm their commitment to equal educational opportunity, including ensuring that students are not subjected to a hostile environment on the basis of race, national origin or religion.
[Recommendation] 2. University leadership should ensure that students are protected from actions that could engender a hostile environment in violation of federal law. In addition, university leadership should set a moral example by denouncing anti-Semitic and other hate speech, while safeguarding all rights protected under the First Amendment and under basic principles of academic freedom.
[Recommendation] 3. University leadership should ensure that all academic departments, including departments of Middle East studies, maintain academic standards, respect intellectual diversity, and ensure that the rights of all students are fully protected. Federal grant-making institutions should exercise appropriate oversight to ensure that federal funds are not used in a manner that supports discriminatory conduct.
[Recommendation] 4. [The Office for Civil Rights] should conduct a public education campaign to inform college students of the rights and protections afforded to them under federal civil rights laws, including the right of Jewish students to be free from anti-Semitic harassment....
As is common with talk of "harassment," the exact scope of the suggested speech restrictions is left maddeningly vague. Clearly the Commission thinks that universities have a legal duty under Title VI to restrict "severe, persistent or pervasive" "anti-Semiti[c]" speech, including "derogatory remarks ... and use of Swastikas and other symbols of hatred or bigotry" — which is to say to restrict speech that expresses certain viewpoints in a way that creates a supposedly "hostile environment."
Presumably this would also include "anti-Israeli or anti-Zionist propaganda" "that includes traditional anti-Semitic elements," such as "anti-Zionist propaganda that exploits ancient stereotypes of Jews as greedy, aggressive, overly powerful, or conspiratorial" — at least so long as it's not "legitimate discourse regarding foreign policy." The Commission doesn't expressly say that such speech must be prohibited, as it does in finding 1. But finding 2 is apparently one of the Commission's findings "regarding incidents of anti-Semitic harassment at college campuses throughout the Nation," so the Commission presumably thinks that such "anti-Semitic bigotry" may indeed harassment and thus prohibited by Title VI (assuming that it's "severe, persistent or pervasive," whatever exactly that means).
Now when a university or a professor restricts a student from speaking because "she has ethnic Jewish physical characteristics," that is indeed discriminatory exclusion of a student from an activity, and not just offensive speech on the university's or professor's part. But finding 3, which discusses this, also includes more broadly "one-sided, highly polemical academic presentations," and possibly "repress[ion of] legitimate debate concerning Israel" that operates through protected speech (e.g., ridicule). It sounds like the Commission is willing to call these "anti-Semitic harassment," too, which would presumably require universities to suppress them, again if they're "severe, persistent or pervasive."
(Note that private universities are generally free to suppress one-sided, highly polemical academic presentations, and public university might be as well, if those presentations are in the classroom. But I don't think the federal government is free to require private and state universities to do this, even using conditions attached to broad funding programs, such as Title VI.)
It's true that the proposal mentions, in recommendation 2, that universities should nonetheless "safeguard[] all rights protected under the First Amendment and under basic principles of academic freedom." But this doesn't put me much at ease, given many people's claims that the First Amendment and academic freedom don't protect speech that creates a "hostile environment." Certainly the Commission takes the same view that some speech — not just "threatening or intimidating behavior" but also "derogatory remarks" and "use of Swastikas and other symbols of hatred or bigotry" — is legally actionable and thus presumably constitutionally unprotected.
The Commission believes that students have a legal "right" "to be free from anti-Semitic harassment." It seems willing to suggest that such harassment would include certain "anti-Israeli," "anti-Zionist," and "anti-Semitic" "propaganda," plus perhaps also "one-sided, highly polemical academic presentations" along those lines. It sounds then like the Commission doesn't take a particularly expansive view of the First Amendment in this field.
In any event, this strikes me as quite troubling. Anti-Semitism should definitely be denounced, and anti-Semitic violence and threats should be punished. But universities shouldn't have speech codes — including ones framed in terms of banning speech that is "severe, persistent or pervasive" enough to create a "hostile environment" — to suppress expressions of anti-Semitic ideas, just like they shouldn't have speech codes to supress the expression of anti-American, anti-black, anti-white, anti-women, anti-men, anti-Catholic, anti-atheist, or anti-gay ideas.
(I should note, by the way, that though the report I cite was issued on April 3, it had been covered very little, which is why I originally missed it; I wish I'd covered it when it came out, but it seems worth criticizing even a couple of months after its release.)
Preliminary Thoughts on Rapanos and Federalism - Much Ado About Very Little:
Some observers hoped and others feared that the Rapanos case might rein in the virtually limitless theory of federal regulatory power that the Supreme Court embraced last year in Gonzales v. Raich. My preliminary reading of the Rapanos opinions suggests that such hopes and fears have turned out to be groundless. The Rapanos majority does not impose any constitutional limits on federal power. Nor does it increase protection for federalism provided by rules of statutory interpretation.
In Raich, the Court held that Congress' Commerc Clause power to regulate "Commerce . . . Among the several States" was broad enough to allow it to criminalize the possession of homegrown marijuana used for noncommercial medical purposes. For a good explanation of why the reasoning of Raich gives Congress virtually unlimited regulatory power (constrained only by constitutionally protected individual rights, but not by any notion of limited powers), see this article by co-blogger Jonathan Adler.
Rapanos does not Impose any Constitutional Limits on Federal Power.
Rapanos leaves the holding of Raich unchanged. Neither Justice Scalia in his plurality opinion nor Justice Kennedy addresses the constitutional issues raised by the property owners. Both rely exclusively on statutory interpretation arguments about the meaning of the Clean Water Act (CWA). They hold that Congress in the CWA DIDN'T give the Army Corps of Engineers the power to regulate any and all bodies of water, no matter how small or non-navigable. But that does not mean that it COULDN'T do so if it wanted to. Indeed, it is striking that Scalia's opinion does not even mention Raich, while Kennedy's does so only briefly, using it to justify interpreting the CWA to give the Corps greater regulatory authority than the plurality would allow.
Rapanos, Federalism, and Clear Statement Rules.
Rapanos also does little or nothing to limit congressional power through rules of statutory interpretation. There are two rules of construction by which the Rapanos majority could have constrained congressional power. The so-called "constitutional avoidance" canon requires courts to reject interpretations of a statute that "raise serious constitutional problems" unless there is a clear statement in the law that Congress intended it to be interpreted in that way. See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 574 (1988); NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 504 (1979) (requiring a “clear expression of an affirmative intention of Congress” before a statutory interpretation that raises serious constitutional questions can be accepted). The "federalism canon" requires a similar "unmistakably clear" statement of Congressional intent in statutes that “alter the usual constitutional balance between the States and the Federal Government.” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). In the 2001 SWANCC case, the Court relied on both canons in rejecting the Army Corps of Engineers' "migratory bird rule," which interpreted the CWA to give the Corps authority to regulate any isolated non-navigable waters that might be used by migratory birds.
Justice Scalia's plurality opinion briefly cites the two canons to buttress its interpretation of the CWA. However, Scalia mostly relies on a detailed textual analysis of the statute. His opinion does not hold that either canon would require rejection of the government's interpretation of the CWA even if the latter were otherwise persuasive. This is a significant omission, since previous avoidance canon cases specifically note that clear statement rules require courts to reject even "an otherwise acceptable construction of a statute" if endorsing it "would raise serious constitutional problems." DeBartolo, 485 U.S. at 574.
In any event, Scalia's treatment of the canons probably lacks precedential signifance and does not bind lower courts because Justice Kennedy specifically rejected it in his concurring opinion. Because Rapanos is a 5-4 decision, Kennedy's vote was decisive to the result. As Justice Roberts (who signed onto Scalia's interpretation of the CWA) points out in his concurring opinion, cases where there is no one opinion endorsed by a majority of the Court are governed by Marks v. United States, 430 U.S. 188 (1977). According to Marks:
When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds. Marks v. United States, 430 U.S. at 193.
In this case, Kennedy is almost certainly the justice who concurred on the "narrowest grounds," since his opinion places fewer restrictions on the Corps than Scalia's, and also provides a considerably less sweeping and more ambiguous interpretation of the CWA. Thus, Rapanos is unlikely to expand the application of the two avoidance canons to statutes that rely on Congress' Commerce Clause authority.
Perhaps even more importantly, both Kennedy and Scalia fail to consider the broader implications of Raich for the two clear statement canons. If Raich is correct and congressional Commerce Clause power is essentially unlimited, a statute that relies on a broad interpration of that power cannot "raise serious constitutional problems." There is no "problem" because there are no constitutional limits for Congress to infringe. Similarly it becomes almost impossible for Congress to write a statute that "alter[s] the usual constitutional balance between the States and the Federal Government." Under Raich, the "usual constitutional balance" is one where there are no structural limits to congressional authority. The only "usual constitutional balance" that can exist is whatever Congress decides on. Interestingly, the Court also failed to consider the impact of Raich on the two clear statement statement rules in this year's other federalism/statutory interpretation decision, Gonzales v. Oregon.
Some scholars, such as Columbia's Tom Merrill, have proposed a new rule under which courts could impose a federalism clear statement requirement even if there is no doubt that Congress has the constitutional power to regulate the activity in question. The Rapanos decision, however, does not endorse this approach or even mention it.
The implications of Raich for the two clear statement rules will have to be explored in some future case. For now, the post-Raich status quo remains essentially unchanged.
UPDATE: Georgetown professor Richard Lazarus also agrees that Kennedy's opinion will be the controlling one under Marks.
More Perspectives on Rapanos:
SCOTUSBlog is running a discussion board on today's Rapanos decision. Up so far are comments from Georgetown's Richard Lazarus, Emory's William Buzbee, and Chapman's John Eastman. More to follow.
The folks from the Pacific Legal Foundation, who represented Rapanos, are also busy with their reaction and analysis on the Rapanos blog.
Initial Thoughts on Rapanos:
In both Rapanos and Carabell, the petitioners obtained the remand of their cases, as they wanted, but should they be happy? Time will tell, but on my initial read it seems that the petitioners may have won the battle only to lose the war.
Justice Scalia offered a plurality opinion that would significantly narrow the application of Section 404 of the Clean Water Act (CWA) to private lands. Under his view, only wetlands actually “adjacent” (defined as “possessing a continuous surface water connection”) to actual “waters of the United States” (defined as “continuously present, fixed bodies of water” or streams with “a relatively permanent flow”) could be regulated as “waters” under the CWA. However appealing Scalia’s opinion may be as a matter of textual interpretation, it is in tension with the Court’s prior precedents and could not command a majority of the Court.
Justice Kennedy’s opinion provided the fifth vote for a remand to the lower courts. This would seem to be a victory for the petitioners. Yet his opinion provides ample opportunity for the federal government to demonstrate jurisdiction over the relevant parcels. Indeed, the closing portion of his opinion provides a formula for how this could be achieved. If lower courts were reluctant to give the Supreme Court’s SWANCC opinion much teeth, Justice Kennedy’s opinion virtually assures a similar application of Rapanos.
Yet the Kennedy opinion is not a sweeping victory for the government. Just as Kennedy rejects the narrow reading offered by Justice Scalia, he equally rejects the anything-the-Corps-wants-the Corps-gets approach encouraged by the dissent. Relying on SWANCC, Justice Kennedy reiterates that “the Corps’ jurisdiction over wetlands depends upon the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense.” Yet where the SWANCC majority understood that a “significant nexus” required regulated parcels to to be “inseparably bound up with the ‘waters’ of the United States” (quoting Riverside Bayview Homes), Justice Kennedy would require the nexus to “be assessed in terms of the statute’s goals and purposes.”
In the near term, Justice Kennedy’s concurring opinion creates more work for federal regulators. His concurrence presumes that the U.S. Army Corps of Engineers will draft and promulgate additional regulations that identify what creates a “significant nexus” between wetlands and waters. In subsequent enforcement actions and challenges to federal jurisdiction, federal officials will also have to make a greater showing that a given parcel has the requisite ecological attributes to meet this test. But without a dramatic shift in the approach adopted by most federal courts, this is a burden the federal government will meet more often than not, particularly since most federal courts will readily defer to the Corps’ technical expertise.
It is also worth noting that the Court’s actual opinions show unreasonably apocalyptic were some characterizations of the stakes in these cases (e.g. that the Everglades could be at stake as Scientific American suggested). The arguments advanced by petitioner Rapanos were so sweeping and ambitious that they commanded not a single vote on the Court. Even Justice Scalia’s plurality explicitly rejected so narrow a reading of federal jurisdiction. Considerations of stare decisis have particular force in the statutory context. Thus, even were a majority of justices sympathetic to such an interpretation of the Act, it was foreclosed by the Court’s prior interpretations.
Finally, I would note that the Corps has long been on notice that its wetland regulations exceeded the permissible scope of federal CWA jurisdiction. Yet for years it has refused to do anything about it. After a slim Court majority revived Commerce Clause limits on federal authority in United States v. Lopez, many observers identified the Corps’ regulations as among the most vulnerable in the C.F.R., but the Corps looked the other way. Several years later, in SWANCC, a similarly slim majority struck down the “Migratory Bird Rule” on the grounds it exceeded the permissible scope of the statute and pushed against constitutional limits on federal power. Again the Corps failed to revise its rules.
As Chief Justice Roberts noted in his concurrence, the |