Saturday, July 8, 2006Economic Analysis of Academic Bureaucracies:
I'm looking for literature analyzing academic bureaucracies, especially from a public choice-type perspective. The parallels with government bureaucracies seem obvious in terms of empire-building and budget-maximizing proclivities, but I haven't been able to turn up any good resources that gives me a good model and analysis of the problem. Please feel free to post in the Comments or email me directly. Thanks. Domestic partnership on the decline in Massachusetts:
According to this article, the Boston Globe will soon require its gay employees to get married in order to keep their same-sex partners' benefits:
While it's hard to be cheerful about the prospect that anyone would lose health coverage, this is on the whole a salutary development. My view has been that an incremental approach to gay marriage — involving first the recognition of domestic partnerships and/or civil unions — is ordinarily the best path. It is good policy and good politics. Critics of this approach, including Jon Rauch (who favors gay marriage) and Stanley Kurtz (who opposes it), have countered that such incrementalism creates a host of alternative statuses that risk making marriage less attractive. (Some people welcome this development since they'd like to knock marriage off its pedestal.) Their fear is that once a constituency develops for these alternative statuses it will be nearly impossible to end them. The apparent trend in Massachusetts, however, suggests that interim marriage-lite statuses can be created for same-sex partners before gay marriage is recognized and then ended once full marriage is achieved. The reasons, I suspect, are both legal and political. There is first the fear of a sex-discrimination claim if a business or government continues to offer unmarried same-sex domestic partners benefits while not offering the same benefits to unmarried opposite-sex domestic partners. That discrimination could have been justified as long as gay partners could not be married, but the legal defense will be harder once they can be. There is second the political difficulty of justifying the continuance of same-sex-only domestic partners benefits once those partners have the marriage option. Heterosexual employees (and citizens in general) will want to know why gay employees and their unmarried partners should continue to get what will now look a lot like "special rights" to domestic partners benefits unavailable to anyone else. Much harder to dislodge — after gay marriage is permitted — will be domestic partnerships and other marriage-lite statuses that, pre-gay-marriage, were made available both to unmarried heterosexual and unmarried homosexual partners. The equitable objections to continuing such alternative statuses will be unavailable, since everyone can access them. The incrementalist conservative approach to gay marriage, therefore, has to emphasize that interim alternative statuses (like domestic partnerships and civil unions) should be available only to same-sex couples who do not yet have the option to marry. Alternative statuses can be limited to gay partners by emphasizing (1) the stronger equitable claim of gay partners who can't marry and by emphasizing (2) the enormously higher cost of including unmarried heterosexual partners in such statuses, since unmarried heterosexual couples always impose the lion's share of the costs when these statuses are available equally to them. Same-sex only interim alternative statuses will, ironically, have to fend off sex-discrimination and other claims. But this has so far not been difficult to do. Friday, July 7, 2006U.N. Conference Ending, Freedom Winning!!
As of 6 p.m. eastern time, the word from the United Nations small arms conference is that the conference is concluding with NO final document, and NO plans for any follow-up conference. It was the latter issue that prevented an agreement about a final document. The officials who had been charged by the conference chair with drafting the conference document presented a final take-it-or-leave it document a little while ago; that draft document eliminated various provisions that the U.S. delegation had found objectionable, but also declared that there would be at least two more conferences. The U.S. delegation refused to assent, and so the conference ended with no consensus agreement, and no plans for future conferences. The back-up plan of the international gun prohibition movement, and their many allies within the U.N. and national U.N. delegations, was to give up on significant progress in 2006, but to keep the game going with future conferences, when a more pliant U.S. administration might welcome an international gun control program. Why So Few Women Supreme Court Clerks?
Amber (Prettier than Napoleon) asks the question, and it's a very interesting one. Is the cause possible differences in innate intelligence at the tail ends of the bell curve (what I'd heard called the idiot-genius syndrome, which leads men to be overrepresented both among the very low-IQ and the very high-IQ)? Sex discrimination in law school classes (whether on the exam or before) or in hiring? Social pressures that push some women away from law school? Differences in innate ambition? Social pressures that lead men to be more ambitious than women (for instance, because less ambitious men face more condemnation from parents, peers, or prospective girlfriends than do less ambitious women, or because more ambitious women face more such condemnation than more ambitious men)? The tendency of women to marry at a somewhat younger age than men, coupled with a tendency of married people to on average be less likely than single people to move? (Moving is often needed to get the prestigious appellate clerkship that can help lead to a Supreme Court clerkship.) The greater tendency of women than men to have spouses or lovers who aren't easily movable, which may again make it less likely that women would move to get the prestigious appellate clerkship? A combination of some or all of the above? I'd love to hear speculation, but even more I'd love to hear actual data. UPDATE: By the way, some data, from my year clerking (1993-94): Of the 38 clerks (including 4 who were clerking for retired Justices), 11 were women. As I recall, 5 of the 11 women were married, none had children, and at least 4 of the married women had left their husbands in a different city. Of the 27 men, only 5 were married, 5 had children (including one who was divorced and whom I didn't include in the 5), and 4 of the married men's wives were with them in D.C. This is just one year, and any serious study would have to look at much more than one year. But it led me to wonder whether the women who had the law school credentials to get the prestigious but often out-of-town appellate clerkships that are stepping-stones to the Supreme Court
Related Posts (on one page):
The Institute for Justice on Post-Kelo Eminent Domain Reform:
Bert Gall of the Institute for Justice has a piece on TechCentralstation defending a significantly more optimistic assessment of Post-Kelo reforms than I have expressed here and here, among other places. IJ represented the property owners in Kelo and has probably done more to protect constitutional property rights in recent years than any other organization. So their take on post-Kelo reform efforts must be taken seriously by anyone interested in the issue. While Gall makes several good points and is certainly right to emphasize that legislative reform efforts should continue, I am still not as optimistic as he is. First, the points where we agree: Gall is absolutely right that the reform efforts represent an improvement over a pre-Kelo status quo that in many states was absolutely abysmal. In numerous jurisdictions, there was pretty much nowhere to go but up, because pre-Kelo law allowed local governments to condemn pretty much any property they set their sights on. He is also correct that some states (notably Florida, Alabama, Georgia, and South Dakota), have passed laws that represent major improvements and go a long way towards banning all or most condemnations for "economic development." I noted several such states in a previous post on this subject, and the list has expanded since then. Finally, Gall is also right to note that many reform movements take years or decades to achieve their goals (though this point has an important flipside that I will note below). By my count, there are now eight states that have enacted meaningful reform, and this number is likely to increase (I will perhaps provide a list and discussion of categorization criteria in a future post). That said, there are also important reasons to be less optimistic than he suggests: First, the substance of many of the bills already enacted actually makes little or no improvement on preexisting laws. Indeed, many of these laws may be intended to persuade voters that meaningful reforms have been undertaken without actually enacting any real change. I lack the space to fully address these issues, but they are discussed in some detail in Tim Sandefur's paper here, and some early post-Kelo laws are also dissected in my own forthcoming article on Kelo (pp. 65-84). Both Tim's paper and especially mine are somewhat dated, but several of the laws enacted in the last few weeks have weaknesses similar to those in the earlier laws that we discussed. The federal reform efforts cited by Gall also suffer from comparable shortcomings. For example, Gall notes the Property Rights Protection Act, a bill which passed the House of Representatives last year. The PRPA, which would cut off federal "development" funds to localities that engage in Kelo-style condemnations, has serious shortcomings that I discuss in a forthcoming article (see here, at pp. 73-76), the most important of which is the fact that it probably only affects a tiny percentage of federal funds available to the offending states and localities. Moreover, the PRPA is currently bottled up in the Senate, and it is far from clear that Judiciary Committee Chairman Senator Arlen Specter (the person holding it up) will let it move forward. A second ground for skepticism is the fact that the window of opportunity for reform may be closing. As time passes since the Kelo decision, public attention will move on to other issues. This is especially like at a tme when numerous other compelling stories are competing for public attention (including the War in Iraq, immigration reform, and others). Can we be certain that the momentum of backlash will wane? Perhaps not. But it is worth remembering the lessons of the massive outcry occasioned by the 1981 Poletown condemnations, which displaced some 4000 people so that General Motors could build a new factory in Detroit. Although Poletown was, at the time, almost as widely denounced as Kelo today, it resulted in little lasting reform, and the issue soon faded from the public's radar screen. I suspect that eminent domain is not the kind of issue that is likely to become a permanent part of the political landscape, both because it affects only a small percentage of the population at any one time and because it does not neatly divide the parties from each other; both Republican and Democratic politicians often have strong ties to developers and other interest groups that benefit from condemnation, and thus both have important incentives to allow the issue to die down over time. For these reasons, Gall's observation that reform movements often take years to succeed is not as comforting as we might wish. Third, as discussed here, several of the states that have passed the best reforms (e.g. -Georgia and South Dakota) had little or no prior record of abusive development condemnations. Many of the states that, according to IJ studies (see here and here), have the most severe records of abuse, have enacted purely cosmetic reforms or none at all. New York, New Jersey, and California are particularly noteworthy in this respect. In many cases, the states that are enacting the best reforms are the ones that need them the least, while many of the most egregious offenders tend to do little or nothing. Finally, as I have argued in all the posts and articles cited above, widespread political ignorance makes it difficult or impossible for the average voter to tell the difference between reform laws that make meaningful changes and those that do not. This suggests that it will often be very hard to prevent politicians from enacting meaningless reforms and passing them off as real achievements. My friends at IJ are understandably concerned that people not give up the fight for post-Kelo reform out of a sense of hopelessness; that is certainly a valid point. But it is also important to guard against the opposite danger - the possibility that support for reform (and for judicial protection of property rights) will dissipate because of a false perception that the problem has been "solved" by reforms that actually have little or no effect. CONFLICT OF INTEREST WATCH: I worked at IJ as a law student clerk during the summer of 1998, receiving a small stipend funded by the Yale Law School Student Funded Fellowship program. Since graduating, I have also written several amicus briefs for IJ on a pro bono basis. Related Posts (on one page):
I Don't Think That Word Means What You Think It Means:
A commenter writes:
I've heard versions of this article before, so I thought I'd pass along a few reactions. 1. To begin with, I take it that the commenter isn't asserting that tolerating homosexuality (or recognizing same-sex marriage) actually jeopardizes the survival of the species. The overwhelming majority of people seem hardwired to be heterosexual, at least when opposite-sex partners are available. There's some malleability of sexual practices -- bisexuals, for instance, might be movable towards focusing more on heterosexual relationships or towards focusing more on homosexual relationships. But there seems little reason to think that even total equal treatment of homosexuals and heterosexuals would actually cause the species to die out. 2. The claim must therefore be that homosexuality is not natural in that (a) it diminishes the birth rate, or (b) if everyone were homosexual, the species would die out (the theory being, I take it, that artificial insemination would be cumbersome and rare enough that it wouldn't compensate for the problem). Yet this is very far from any normal definition of "natural." Infertility is natural, even though it satisfies both (a) and (b). People's desire for some time free of the burdens of childrearing is, as best I can tell, quite natural (as is the desire for pleasure more broadly). Yet it too satisfies both (a) and (b); in fact, I suspect that this is responsible for declining birth rates far more than is the toleration of homosexuality. 3. More broadly, I agree that the natural world has created, through the process of natural selection, organisms that tend to be successful at reproducing themselves. But this doesn't mean that any behavior traits that reduce reproduction (or that, if universal, would eliminate reproduction) are unnatural. 4. Finally, to my knowledge it's not clear that the incidence of some amount of homosexuality diminishes the overall societal birth rate -- in fact, if strongly homosexual orientation is genetically linked, that's reason to think that those genes carry some reproductive advantage to gene carriers, or at least have little reproductive cost. I'm told that there's a hot scientific debate about this, and I'd be delighted if those who know something about the debate can speak to this in the comments. But my point is simply that observable conditions (whether sickle-cell anemia, menopause, or homosexuality) that seem to decrease people's aggregate reproductive fitness may through indirect channels actually increase aggregate reproductive fitness; and we should be careful about just assuming otherwise, especially when the condition seems to be genetically linked. Related Posts (on one page):
"A Reasonable Chance of Shooting It Down":
At a press conference earlier today, President Bush was asked several questions about the North Korean missile tests. Among his responses were the following comments about the United States' anti-ballistic missile capabilities:
While existing systems may be "modest," the President further indicated that the military could well have intercepted a missile aimed toward North America. Specifically, Bush said "I think we had a reasonable chance of shooting it down. At least that's what the military commanders told me." The official press conference transcript is here. Related Posts (on one page):
The New York Marriage Decision and Equal Protection:
In addition to the due process argument, the New York gay-marriage plaintiffs claimed that denying them marriage violated the state constitution’s guarantee of equal protection. (Here, New York generally follows federal precedent, offering no more protection than would be offered under the federal constitution.) The court confronted two arguments for heightened scrutiny: first, that denying same-sex couples marriage is a form of sex discrimination, to which the court should apply intermediate scrutiny; and second, that their exclusion from marriage is a form of sexual orientation discrimination, to which the court should apply some form of heightened scrutiny. The first claim, that excluding gay couples from marriage is a form of sex discrimination, has been a staple of gay-rights litigation and especially of academic theorizing for a couple of decades. It’s fair to say that sex-discrimination arguments have been the dominant mode of legal-academic writing supporting gay-rights claims for a generation now. One of the primary theorists of this argument has been Andrew Koppelman, a Northwestern University Law School professor and friend of mine, who has been both tireless and remarkably articulate in defense of it. The argument operates at two levels: a formal one and a deeper sociological one. The formal argument is that much anti-gay legislation, like a same-sex marriage exclusion, that appears to be merely “anti-gay” is actually sex discrimination on its face. After all, Jack can marry Jill, but he can’t marry Adam. The exclusion turns on Jack’s biological sex, since Jack could marry Adam if he (Jack) were female. Thus, Jack is being denied a government benefit because of his sex. It does not matter, according to this argument, that males and females are equally denied the right to marry someone of the same sex. In Loving v. Virginia, the sex-discrimination theory goes, the Supreme Court easily dispatched the argument that an antimiscegenation law that applied to both blacks and whites was not race discrimination. Further, the sex-discrimination argument holds, a same-sex marriage exclusion operates sociologically to reinforce traditional notions about the proper gender roles of men and women; women must be “wives” to men, men “husbands” to women, and so on. It is a goal of sex-discrimination jurisprudence to root out legislative classifications grounded in traditional gender roles. The New York court addressed only the formal part of the sex-discrimination argument, rejecting it in a single paragraph:
The New York court’s conclusion here is very much in line with the vast majority of decisions at the state and federal levels that have confronted the sex-discrimination argument in one form or another. Indeed, even courts favorable to gay-rights claims have either explicitly rejected the sex-discrimination argument (as did the Vermont and Massachusetts high courts in their marriage cases) or have ignored it (as did the Supreme Court in Lawrence). In some two decades it has succeeded just once in a high-profile case, Baehr v. Lewin, in which the Hawaii Supreme Court held that the denial of marriage to same-sex couples was sex discrimination. Overall, its won-loss record in litigation has been abysmal. But should it be? I have never been persuaded by the sex-discrimination argument. At the formal level, the argument over-reads Loving, a single case from a different and special area of equal-protection jurisprudence (race). Classifications based on race are far more likely to be based simply on racism than classifications based on sex are likely to be based simply on sexism. We have separate bathrooms for men and women; separate men’s and women’s sports teams at public universities; men and women are treated differently by the military; different standards for presuming parentage depending on sex; different penalties and standards for statutory rape depending on sex, and so on. I doubt these sex classifications are unconstitutional, or that they would get anything more than rational-basis scrutiny. Even if we applied intermediate scrutiny to them, they’d probably pass that more forgiving and flexible test. Further, I understand Loving to have concluded that antimiscegenation laws, however “equal” they were in form, to have one basic and overriding purpose that deeply offends the heart of the 14th Amendment: the maintenance of “White Supremacy.” While I agree that the limitation of marriage to opposite-sex couples both reflects and reinforces traditional gender roles, I think it is a crabbed view of traditional marriage to say that that is all it reflects or to say that maintaining a gender hierarchy is even its dominant cultural function nowadays. Many, many legal academics would strongly disagree with my view. Especially troubling for the formal sex-discrimination argument in the marriage context, I think, are cases in which the Supreme Court has suggested that legislative classifications based on biological differences between men and women get only rational-basis scrutiny (see, e.g., Geduldig). The argument of the state in the New York case, and the one the court ultimately accepted, is that the limitation of marriage to opposite-sex couples (the legislative classification) is rooted in a biological fact – that most opposite-sex couples may procreate while no same-sex couple can. That’s not a good policy reason to exclude gay couples from marriage, in my view, but it may be a good constitutional basis for subjecting their exclusion to rational-basis review despite what looks facially like a sex classification. Next, the New York plaintiffs argued that their exclusion from marriage was a form of sexual orientation discrimination that should be subjected to heightened scrutiny. Under the federal and state precedents, this claim is even more dubious than the sex-discrimination argument. Federal courts do not apply heightened scrutiny to sexual orientation discrimination. Neither do state courts. Nevertheless, the Supreme Court has never squarely addressed the arguments for heightened scrutiny of sexual orientation discrimination (no, not even in Romer). It is certainly open to New York to go its own way on this question. To its credit, the New York court at least acknowledged that the gay-marriage exclusion is a form of discrimination based on “sexual preference,” implicitly rejecting the glib claim that the exclusion doesn’t discriminate against gays because they can still marry someone of the opposite sex. But the court rejected the argument for heightened scrutiny by saying that, while heightened scrutiny might apply to some forms of sexual orientation discrimination, it would not apply to “legislation governing marriage and family relationships,” (pp. 14-15) since homosexual “preference” doesn’t produce children, a fact “relevant” to state interests in marriage. This, I think, is the weakest part of the opinion. The usual equal protection approach is categorical, not context-specific. The courts usually ask whether classifications aimed at a group are in general suspect, and then apply the appropriate scrutiny to a particular classification depending on the answer to that question. They do not usually, as the New York court did here, look at each law and decide whether the state has interests “relevant” to the classification and then apply only rational-basis scrutiny wherever the state has such “relevant” interests. For example, a court would not apply rational-basis scrutiny to a decision by a state prison system that has interests “relevant” to race in separating black from white prisoners. The court would apply strict scrutiny to such a classification because that’s the level of scrutiny the court applies to all race classifications. (There are cases, however, involving alienage and sex classifications where the level of scrutiny is more context-specific.) While the Supreme Court has never fully laid out the guidelines for the application of heightened scrutiny, it has suggested some criteria, like the political powerlessness of the group, a history of invidious discrimination against the group, and so on. The New York court acknowledges a history of “serious injustice in the treatment of homosexuals, a wrong that has been widely recognized only in the relatively recent past” (p. 9). But the court fails to cite the criteria for the application of heightened scrutiny or the decisions that employ them, much less analyze the issue. The dissent, by contrast, contains a nice primer on some of the relevant points (Kaye dissent at pp. 12-16). Whether the dissent is correct or not is beside the point. The majority failed even to engage the issue. Related Posts (on one page):
The Long Dark Night of Sashalessness Is Over:
I'm very happy to report that my brother Sasha, who has finished his clerkship for Justice Samuel Alito, and who will be a Visiting Assistant Professor at Georgetown University Law Center for the coming two years, is rejoining this blog. Longstanding readers of the blog know that it was originally the Volokh Brothers blog, and that Sasha continued as a coblogger after we became the Volokh Conspiracy. Now that his government service is done, he's back, and I'm just delighted. Back to Natural Law and One True Inherent Purpose:
A commenter on the Usage and Marriage thread perfectly illustrated what I see as the One True Inherent Meaning error as applied to sexual practices. Someone else had written, "I think that gay sex is in fact natural for gay people. Therefore, I think that gay sex, and gay marriage, would not violate natural law." The commenter responded, "You are simply wrong based on human biology. Tab P goes into slot V not slot B." Well, tab P goes into slot V, except when it doesn't. My guess is that, as a purely descriptive matter, tab P goes into the P-owner's hand many more times, on average, than it goes into slot V. If the most common use (i.e., the norm) defines the One True Inherent Use, then any sex other than masturbation is unnatural. Ah, the commenter might respond, but that's not the purpose of the penis. The purpose of the penis, either in the sense of what its biological function is, or in the sense of how God designed it (I don't know the commenter's philosophy, so I'm not sure which he'd focus on), is to be inserted into a vagina so as to procreate. But biology doesn't have "purposes," except in a metaphorical sense. Biology has developed the penis into a multi-functioned organ — it can be used for urination, for sexual pleasure, for emotional bonding, and for reproduction (I list these in what I guess to be decreasing order of actual frequency of use). Likewise for the multi-functioned vagina, though replacing urination with delivery of babies. More broadly, the sexual act is likewise a multi-functioned act. Likewise, biology has developed the mouth into a stunningly multi-functioned organ: It can be used for (among other things) breathing, communicating, consuming sustenance-producing substances, tasting substances to see whether they are wholesome, expelling vomit, kissing, licking stamps, and at least four different kinds of production of pleasure in oneself and others — singing, eating tasty food, stimulating others' nongenital erogenous zones, and stimulating others' genitals. The anus is a less multi-functioned organ. Still, it can be used not just for elimination of wastes, but also for prostate exams, for gynecological exams, for the administration of medicine to people (often babies) who can't easily keep it down when the medicine is administered orally, and for the relatively accurate determination of body temperature. The latter four functions are of course artifacts of modern medicine, but I doubt that any of us would condemn them as violations of natural law, especially since learning, thinking, and developing new processes is natural for humans. Likewise, the anus can be used for sexual pleasure, and has been used that way by humans for millennia (and is used that way by some animals). Why then treat the anus, the mouth, or the penis as having One True Inherent Purpose rather than recognizing that they can be used in multiple ways, each of which is fully consistent with our biology. Likewise if one sees the human being as part of God's design, and tries to deduce proper conduct from such design. (I set aside the separate argument that proper conduct should be deduced from supposedly authoritative religious works, such as the Bible — that's not the argument I'm responding to here.) God seems to have designed the human body in such a way that the penis, the mouth, and the anus can be used in lots of different ways; why should we infer, simply from the fact that one use (penile-vaginal sex leading to reproduction) is so important, that it's the One True Proper Use of genitalia? Likewise, God has designed humans in a way that allows some of them to be attracted to members of their own sex; even if you believe that this preference isn't innate, but is caused in part by upbringing or by personal choice, it's clear that the possibility of this preference is indeed present in humans (and, as I said, other animals). This too casts doubt on the theory that penises or the sexual act have One True Inherent Purpose or One True Inherent Mode Of Employment. Words can have many functions (in the sense of many meanings). Institutions, like marriage, can have many functions. Parts of the body can have many functions. Human practices can have many functions. One can certainly argue that some functions are beneficial and some are harmful. But I see little reason to assume that there can only be one true inherent metaphysical natural function, or to infer that just because one function is very important, all other possible functions are improper or violations of natural (or linguistic) law. I also commented on the broader "unnaturalness" argument three years ago, here. Related Posts (on one page):
Thursday, July 6, 2006The New York Marriage Decision, Due Process, and Defining Fundamental Rights:
The New York marriage decision raises many interesting questions. I plan, over a few posts, to deal with some of them: (1) the due process claim; (2) the equal protection claim; (3) the legal rationality of excluding same-sex couples from marriage; and (4) some implications of the decision for the future of gay marriage. First up, due process. The plaintiffs argued that there is a fundamental “right to marry” guaranteed by the state constitution’s due process clause (which New York courts interpret more broadly than the analogous federal clause), and that this right applies to same-sex as well as opposite-sex couples. Thus, their exclusion should be subjected to strict scrutiny, which hardly anyone seems to think a state could satisfy. The Court of Appeals held that while there is a fundamental right to marry, there is no fundamental right “to marry someone of the same sex,” (p. 11) and thus that only rational basis scrutiny applies. It differed from the Massachusetts court in 2003 in Goodridge by holding that the exclusion of gay couples from marriage is rational. The doctrinal key in these fundamental rights/substantive due process cases has long been the proper way to characterize the right at stake. Much academic commentary has been offered on this issue. Where courts characterize the right at stake broadly (e.g., “this case is about ‘the right to privacy’”) plaintiffs win (see e.g., Griswold v. Connecticut, Eisenstadt v. Baird, Roe v. Wade, Casey v. Planned Parenthood, and Lawrence v. Texas) because their activity can always be said to partake of the broad right. Where courts characterize the right at stake narrowly (e.g., “this case is about the ‘right of nonmarital biological fathers to visitation with their children adulterously conceived’” or “this case is about the ‘right to engage in homosexual sodomy’”) plaintiffs lose (see e.g., Bowers v. Hardwick, Michael H. v. Gerald D., and Washington v. Glucksberg), because there is rarely the kind of historical and traditional support for a narrow right that would allow it to be ranked as fundamental. In every due-process case, it is possible to articulate the claimed right very broadly, very narrowly, or somewhere in between. So the issue is largely decided, doctrinally, at this initial stage of characterizing the right. The rest of the analysis is usually straightforward, though there have been exceptions (e.g., where a law meets strict scrutiny or fails rational basis review). To its credit, the New York court recognized the tensions in the precedents on this issue, with courts sometimes choosing broad characterizations and sometimes narrow ones. The U.S. Supreme Court has never given us a methodology for choosing the level of generality, which has led to the strong suspicion that the cases in this area are result-driven. Which path to follow in a gay-marriage case, that of Glucksberg and its narrow conception of the claimed right, or that of Lawrence and its broad conception of the claimed right? The question is not a hypothetical one; it will confront every court at the state and federal level that deals with a gay-marriage claim grounded in due process. The New York court offers this methodology for making the choice: "The difference between Lawrence and Glucksberg,” reasoned the court, “is that in Glucksberg the relatively narrow definition of the right at issue was based on rational line-drawing. In Lawrence, by contrast, the court found the distinction between homosexual sodomy and intimate relations generally to be essentially arbitrary.” (p. 12) Thus, the New York court chooses the Glucksberg model and rejects the Lawrence model. (Yet another indication, if we needed more, that Lawrence is not leading courts quickly to gay marriage.) The New York court’s approach is a novel, but I think unsatisfactory, way to resolve the level-of-generality dilemma in due process cases. It resolves the problem only by deciding the result. Thus, in Glucksberg, under the New York court’s approach we would choose the more specific level of generality (“this case is about a narrow ‘right to physician-assisted suicide’ rather than a broad ‘right to die’”) only after deciding that the law meets the very test likely to be applicable to a right characterized at that specific level: it is rational for the legislature to ban physician-assisted suicide so we characterize the right as involving only the very narrow practice that it is rational for the legislature to ban, not some broader principle of human liberty, like a “right to die with dignity,” which the legislature could not deny. In a gay-marriage case, we have to choose between characterizing the exclusion of gay couples from marriage as implicating either (1) a “right to same-sex marriage” (narrow), or (2) a “right to marry” (broad). We make this choice, according to the New York court, by first deciding whether the exclusion itself is rational. If it is rational (as it is in the case of gay marriage, the court concludes), then we’ll choose the narrow characterization of the right implicated (#1), which will mean that rational-basis scrutiny applies (since there is rarely sufficient historical support for rights narrowly conceived, and thus they aren’t “fundamental”), and we’ve just decided that the exclusion is rational. It can’t be argued with a straight face that there is a traditionally recognized “right to same-sex marriage.” It follows like the night the day that gay-marriage plaintiffs lose under the New York-style due-process analysis On the other hand, if the New York court had found — as the Massachusetts court did in Goodridge in 2003 – that the exclusion of gay couples from marriage was arbitrary/irrational, then it presumably would have characterized the claimed right at a broader level of generality (“this case is about the ‘right to marry’”), since the exclusion would not be based on “rational line-drawing”; then it would have found that the case implicated a fundamental right to marry; and hence it would have applied strict scrutiny, which the exclusion would fail, since the court already would have found it irrational. The New York court thus gives us an approach to the level-of-generality problem in substantive due process cases that, if taken seriously, is both circular and eviscerates fundamental rights. The result in every case is practically determined by the initial analysis about the law’s rationality. If the law is determined rational at the outset, it will probably be constitutional. If not, it probably won’t be. But this makes a (further) mess of the fundamental rights doctrine, the underlying point of which is to say that some rights are so important they cannot be denied even if the government has rational reasons to do so. I do not want to be too hard on the New York court on this point. The judges deserve credit for recognizing the problem and honestly attempting to grapple with it; not all courts do. It’s equally possible for a court to assume that gay marriage implicates the “right to marry” without ever recognizing this issue, and thus uphold a gay-marriage claim in an equally conclusory fashion. A less abstract way to approach the problem of choosing a level of generality would be to ask how courts have tended to characterize the right at issue in other marriage cases. Here, the most obvious precedents to look at would be the canonical marriage cases – Loving v. Virginia, Turner v. Safley, and Zablocki v. Redhail. In all three cases, the U.S. Supreme Court chose a broad level of generality, not a narrow one. Thus, in each case, the right at stake was the “right to marry,” not the “right to marry a person of another race” (Loving), the “right of prison inmates to marry” (Turner), or the “right of deadbeat parents to marry” (Zablocki). This would suggest that the right at stake in the New York case was the “right to marry,” not the “right to same-sex marriage.” Surprisingly, the court doesn’t even mention Turner and cites Zablocki only for an unrelated point. But this, too, would be an unsatisfactory approach. What, after all, is the content of the “right to marry”? It surely cannot mean a fundamental right to marry anyone or anything, regardless of number of partners, age, consanguinity, or even species – a right that could only be denied if the government could satisfy strict scrutiny. “Marriage” in the fundamental rights context must have some substantive content, some underlying purpose, which would help us to distinguish the claim of an adult, unrelated gay couple from the claim of Joe to marry Fido. I have no problem distinguishing same-sex marriages from inter-species marriages, because I have an underlying idea of marriage and the purposes it properly serves that includes the claims of the former and excludes the claims of the latter. But my view of the underlying point of marriage is sharply contested, since for many people in almost all times marriage has meant something – uniting people whose sex procreates — that excludes gay couples. There are good arguments against their view – among them, that it has been for at least a century a largely anachronistic vision of marriage – but I’m hardly so confident that I’m correct that I want courts deciding the issue at this point as if it’s a settled matter of “fundamental rights.” And if I were to brief this point for the anti-gay-marriage movement in a good lawyerly way, I’d have plenty of room to argue that the cases in this area seem implicitly and sometimes explicitly to link marriage to procreation, conceiving “marriage” and thus the fundamental “right to marry” as necessarily involving a man and a woman. One could argue for a wholly different approach to protecting rights under the due process clause, one that is not tethered to long-recognized practices and traditions, or one that wholly eschews a distinction between fundamental rights and other liberties. Under such an approach, a gay-marriage claim might be upheld even though gay marriage has no grounding in our history and tradition. But, despite the powerful arguments of my co-blogger Randy Barnett and a few others, I do not believe that the Supreme Court has moved to an alternative approach. Nor have I yet seen an alternative approach that would be better than the maddening one we now have. So it seems to me that, at this point in our history and in the development of doctrine, the New York court reached the right result on the due proces claim for rather unconvincing reasons. Related Posts (on one page):
More International Gun News from the Independence Institute:
1. The latest bilingual issue of Les actualités aux armes (French gun news) is now available on the web. The issue presents links to articles in French about various gun issues, along with short English-language summaries of the articles. Usage and Marriage:
One thing that perplexes me about some (not all) usage arguments it their insistence on assigning One True Inherent Meaning to a particular word. "Ten times lower than," the argument goes, is wrong:
Lots of "cannot"'s and "wrong"'s, but it all rests on the assertion that "times" must refer to multiplication and only multiplication. Yet the word "times," as the dictionary shows, has lots of meanings. That it means multiplication in some situation doesn't mean that it somehow must inherently mean that everywhere. (Of course, one could argue that using it to mean something else may be confusing; that's a separate argument, which I've engaged elsewhere on the merits -- here I speak only of the One True Inherent Meaning argument.) The same arises, I think, in some (again, not all) arguments against same-sex marriage (or for that matter against "unnatural sex"): Marriage is inherently about one thing, namely procreation, and therefore same-sex marriage is somehow inherently a violation of the fundamental nature of marriage:
If one is really looking at what marriage "used to" be as a guide to what it must be, one must also consider that marriage often used to be a contract between a man and several women, or more likely (as the commenter I quote above acknowledges) a contract between a man and several women's fathers. But, in any event, for centuries marriage has also often been about love, about company in old age, about emotional tranquility, about sexual hygiene, and more. I would think that this capacity of marriage to serve the other valuable functions is a sign of the strength of marriage, not something to be minimized or condemned. We wouldn't find it repulsive when post-menopausal women marry. We wouldn't find it a sign of "pure evil and cultural nihilism." Rather, we'd dance at their weddings, and appreciate the value of the marriage both for the parties and for society. Same when we see the marriage of people whom we know to be infertile, either because of disease or because of deliberate choice. Such a marriage is an occasion for joy, not contempt or concern about the erosion of the One True Inherent Nature Of Marriage. Once we acknowledge that marriage can therefore have many functions, what's so "pure[ly] evil and cultural[ly] nihilis[tic]" about extending to marriage to couples who are unable to reproduce because of their gender, rather than because of their age or because of some medical condition? Of course, one could make other criticisms of same-sex marriage. I'm ultimately unpersuaded by these criticisms; but at least many of those criticisms focus on plausible speculations about actual effects, rather than on the supposed One True Purpose of an institution that -- like many successful human institutions -- serves many purposes. Cut Out the Rancor and Divisiveness, You Bigots:
Here's the Democratic National Committee's press release about the New York same-sex marriage decision:
Commenter Max Hailperin makes a good point: Isn't it a bit odd to condemn (whether or not soundly) the New York Court of Appeals' decision as relying on "outdated and bigoted notions" and then urge that the coming legislative debate "proceed without the rancor and divisiveness that too often surrounds this issue"? Related Posts (on one page):
Are Restrictive Covenants Banning Sale of Property to the "Yankee Race" Legal?:
Property law professors Alfred Brophy and Subha Ghosh have an interesting and amusing paper discussing the legality of South Carolinian Henry Ingram's efforts to enforce a restrictive covenant banning the sale or lease of his property to members of "the Yankee race." (hat tip Propertyprofblog). Brophy and Ghosh argue that Ingram's restrictive covenant violates common law rules against restraints on alienation, the 14th Amendment ban on racially restrictive covenants (as applied in the famous 1948 Supreme Court case of Shelley v. Kraemer), and the Fair Housing Act of 1968. I am not so sure about the latter two arguments. Although Ingram's covenant is aimed at the "Yankee race," he defines this group to include anyone born north of the Mason-Dixon Line or residing there for one year or longer. The people banned from purchasing under this rule could easily be of any racial or ethnic origin, as could those still permitted to become buyers. It is possible, as Brophy and Ghosh suggest, that the mere use of the word "race" implies a racial classification, but I'm not convinced that this will work. A better argument (one that the authors hint at, but don't quite make) is that even if the text of the covenant is neutral as regards to race and ethnicity, its purpose is to exclude members of the northern "Yankee" ethnic group. "Facially neutral" criteria that are intended to exclude members of a particular racial or ethnic group are illegal under the Fair Housing Act and also under the Equal Protection Clause (if there is state action). Based on Ingram's statements (quoted in the Brophy-Ghosh article), it seems clear that his motive is a generalized hostility to "Yankees," and the 1 year rule merely a means of implementing it. For example, Ingram has said that "Yankees" are "worse than fire ants" and has described his goal as "ensur[ing] that the Yankees will never again own or control large tracts of land that rightfully belong in Southern hands and under Southern domination." While "Yankees" are a more amorphous ethnic group than, say, Hispanics or Irish-Americans, the history of cultural differences and antagonism between north and south suggest that they are indeed a definable ethnic and cultural group, and as such covered by the Equal Protection Clause and the Fair Housing Act (which bans discrimination based on "national origin," a term understood by courts to encompass ethnic groups as well). On the other hand, the good news for Ingram is that the clause in his covenant banning sale or lease of the property to any person named "Sherman" (a result of his hatred of Civil War General William Tecumseh Sherman) is probably legal. Whatever the legal status of the covenant, Ingram is definitely the kind of white southerner that General Sherman had in mind when he said that "My aim . . . was to whip the rebels, to humble their pride, to follow them to their inmost recesses, and make them fear and dread us." In Ingram's case, the plan to instill "fear and dread" of northerners definitely worked! Sherman also didn't exactly have warm feelings towards the state of South Carolina (which was the first to secede and historically the strongest advocate of both slavery and secession). Before occupying the state in 1865, he noted that "[t]he whole army is burning with an insatiable desire to wreak violence upon South Carolina. I almost tremble for her fate." UPDATE: Yes, it is true, as several commenters note, that the text of the covenant is based on past residency and location of birth rather than on ethnicity. However, as I tried to point out in the original post, a provision that does not discriminate on the basis of ethnicity in its text, can still be illegal if the author's purpose was to use it to exclude members of a particular ethnic group. For example, a clause that forbid sale of the property to basketball fans would not be illegal in and of itself. But if it could be shown that the clause was inserted because the owner thought that blacks were more likely to be basketball fans than whites, then courts would probably strike it down under the Fair Housing Act. In this case, Ingram seems to have included the language on residency and birth because he hoped it would have the effect of excluding Yankees (defined as an ethnic and cultural group). Related Posts (on one page):
The U.S. Supreme Court and Same-Sex Marriage:
I've long (and publicly) opposed the Federal Marriage Amendment, because it unnecessarily interferes with states' decisions about same-sex marriage. Moreover, though I don't think that the U.S. Supreme Court ought to interpret the U.S. Constitution as mandating recognition of same-sex marriages, I don't see a need even for a narrow constitutional amendment that would preclude such an outcome -- it just seems to me highly unlikely that the U.S. Supreme Court will reach such a decision, at least any time in the next few decades. (I support recognition of same-sex marriages for policy reasons, but I think it should be done through the political process, for many of the reasons that others have discussed at great length elsewhere.) Likewise, unless I'm mistaken, this was a common argument of many defenders of Lawrence v. Texas and critics of the FMA: (1) There's no real likelihood that the U.S. Supreme Court would mandate recognition of same-sex marriage any time soon. (2) People who are skeptical about the recognition of same-sex marriage thus need not be worried about the implications of Lawrence or eager to enact the FMA. (3) The same-sex marriage debate ought to just percolate at the state level, with no need for federal intervention through the amendment process and no real risk of federal intervention through a U.S. Supreme Court Goodridge-like decision. Yet now Democratic National Committee chairman Howard Dean says this:
Does this mean that a Democratic President is likely to appoint Justices who would reject "outdated and bigoted" decisions such as the New York Court of Appeals', and who would therefore interpret the U.S. Constitution the way Dean thinks the New York Constitution should have been interpreted -- as "guarantee[ing] the right to marriage for same-sex couples"? Does it mean that the sitting Justices would be acting in an "outdated and bigoted" way by not interpreting the U.S. Constitution as mandating the recognition of same-sex marriage? Does Dean merely condemn the particular reasoning of the New York Court of Appeals, but accept the result? Or does Dean believe that the New York court's interpretation of the New York Constitution was wrong, but the U.S. Supreme Court's similar interpretation of the U.S. Constitution would be proper? (Such a theory is certainly possible, but I just wonder whether this is indeed Dean's view.) I realize that many people might welcome a Supreme Court decision mandating recognition of same-sex marriage. It justs seems to me contrary to the predictions that I'd heard from many sources about the unlikelihood that the U.S. Supreme Court would take such a view. Related Posts (on one page):
More on Daubert and Rule 702:
I've noted before that many federal courts are ignoring the language of amended Federal Rule of Evidence 702, and relying on selective quotes from earlier precedents to evade their gatekeeping responsibilities. An excellent example just came across my desk, Liquid Dynamics Corp. v. Vaughan Co., Inc., 449 F.3d 1209 (Fed. Cir. 2006). A few interesting, and disturbing, things about this opinion: (1) The court never cites the text of Rule 702, or, for that matter, shows an awareness that Rule 702, as amended in 2000, is the governing rule for the admissibility of expert testimony; (2) The court cites the 1993 Daubert opinion as the apparent last word on the scope of Rule 702, even though Daubert was only the first in a trilogy of relevant cases ending in 1999, and Rule 702 was amended in 2000 to codify what amounts to a strict interpretation of all three opinions, resolving certain ambiguities in the trilogy in favor of a conservative admissiblity standard; (3) A very brief excerpt: "The appellant argued that the expert used incorrect data or was missing data to run the CFD software and used the wrong equations to run his CFD analysis of the engine's aerodynamic properties. Such a flawed analysis, it argued, made the testimony and evidence unreliable." The court concludes that this objection goes to weight, not admissibility, and refuses to review the reliability of the evidence. Yet Rule 702, as amended, specifically states that expert testimony is only admissible if "the witness has applied the principles and methods reliably to the facts of the case." If an expert used incorrect or missing data and the wrong equations in an analysis, it's hard to see how he met the standard imposed by the above language, and the court certainly doesn't explain it. (4) The court cites Daubert for the proposition that "the focus of a court's inquiry into the relevance and reliability of scientific evidence 'must be solely on principles and methodology, not on the conclusions that they generate'", but fails to recognize that, even if one wrongly ignores the text of Rule 702, the 1997 Joiner case specified (specifically in response to the misuse of the earlier language in Daubert) that "conclusions and methodology are not entirely distinct from one another," and that courts could reject testimony even when based on what, in general, may be a reliable methodology, if it was misused in the case at hand. (5) The court cites a 1986(!) 8th Circuit opinion for the proposition that if inadequacies in expert testimony, especially if they can be vigorously contested at trial, are a matter of weight, not admissibility. In terms of the evolution of federal expert evidence law, 1986 might as well be 1800. (6) In fairness, the court cites a favorable 2003 11th Circuit opinion, which unfortunately is equally wrongheaded, showing how judicial error can compound judicial error. The 11th Circuit opinion bizarrely actually does quote the language of amended Rule 702, and then proceeds to completely ignore the requirement that "the witness has applied the principles and methods reliably to the facts of the case." (And the 11th Circuit opinion is also the apparent source of the 1986 citation.) [Update: A federal district court recently wrote, "Rule 702 of the Federal Rules of Evidence, as discussed and interpreted by the Supreme Court in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)." It would have been pretty difficult for the USSC to have discussed and interpreted current Rule 702 in these cases, because they were also decided before current Rule 702 existed. I wonder if many federal judges are simply unaware that Rule 702 was amended in 2000. If so, it would behoove attorneys seeking to enforce the Rule to remind them.] The relevant excerpt of the Federal Circuit opinion can be found below: (show) Octopodes:
Many usage debates, I think, are actually debates not just about the overtly contested words (e.g., "fulsome") but also about other words: "is," "should," "correct," "error." One commenter on the split infinitives thread, for instance, writes "It is generally bad form, to be sure, and it should be avoided." What I don't quite grasp here is what "is" and "should" mean here. Does that mean that the word is "bad form" in some objective sense, and should be avoided for some reasons that are in some sense obligatory? Or does it just mean "I don't like it, and I like writing that avoids it"? Another commenter complains about people's use of "octopi" to mean "octopuses":
I certainly agree that "octopuses" is a perfectly legitimate plural for "octopus"; and I don't like "octopi," partly for the reasons that the commenter mentions. But what exactly does "error" or "not" "correct" mean, when used about "octopi"? "Octopi" may well be bad Latin and bad Greek. But according to the English dictionaries that I've consulted, "octopi" is a fully standard English word. It may be grating to some people, because of its air of pedantry that proves to be etymologically ill-grounded pedantry. It may not represent "logical" etymology, though the life of the English language has often not been logical. Yet under what coherent and useful definition of "error" or "correct" can we condemn "octopi" as incorrect or erroneous, rather than merely inelegant? UPDATE: For those who want more sources, the online Oxford English Dictionary reports for "octopus," "Plural octopuses, octopi, (rare) octopodes." Two of the examples it gives, an 1834 edition of Cuvier's Animal Kingdom XII and a 1942 National Geographic article, use "octopi." My New Shorter Oxford lists "octopi" as well; so does my American Heritage (4th ed.); so does the Cambridge Advanced Learner's Dictionary. While checking still more sources, I have found two contrary ones -- Garner's Modern American Usage calls use of "octopi" "mistaken[]," and the New Fowler's Modern English Usage says it is not "acceptable" and is "misconceived." Webster's Dictionary of Modern English Usage, on the other hand, doesn't condemn octopi. The majority (though not unanimous) view from the sources that I've consulted, then, supports octopi as an acceptable plural, and it's hard for me to see why the usage listed in the OED, the American Heritage, and the Cambridge would be "wrong." Related Posts (on one page):
Red Rockets Glare:
North Korea conducted several missile tests on July 4th. I wasn't able to comment at the time, but Daniel Drezner rounded up the various reactions here. Fulsome:
I'm often skeptical of claims that some common usage is "wrong," partly because I'm not sure that there is a coherent and useful definition of linguistic "wrongness" other than "divergent from common usage." But there are often good reasons to avoid certain usages, even if they are technically quite correct. Using "fulsome" to mean "abundant" is one example. The Oxford English Dictionary gives "Characterized by abundance, possessing or affording copious supply; abundant, plentiful, full" as the first definition for "fulsome," attested back to 1250. The definition "Of language, style, behaviour, etc.: Offensive to good taste; esp. offending from excess or want of measure or from being ‘over-done'" dates back only to 1663. Neither is listed as obsolete. Yet while it's hard to say that it's somehow linguistically "wrong" to use "fulsome" to mean "abundant," and while many such usages might not even be ambiguous, they are still likely to be rhetorically ineffective: If you want to convey a positive or a neutral message, you shouldn't use a word that will bring up a negative image in the listener's mind, even if the listener will quickly realize that you're using the term in its positive or neutral sense. For instance, a positive review of the Diablo cigar in Forbes FYI (Feb. 24, 2005) should probably not have said, "It has a nutty aroma and a fulsome flavor that will stand up to the bullying of a big after-dinner Cognac." Now there may be times that some people might choose to use a word despite the possibly negative reactions that it may evoke in some readers. For instance, I know that split infinitives annoy people, but I think that unsplitting the infinitive often makes the phrase sound stilted, so on balance I'm happy to keep splitting. (I'm also an obstinate fellow who's willing to fight this battle even at some modest cost to the rhetorical effectiveness of what I write.) I use "handicapped" and "rule of thumb" in spite of the fact that some people, who are duped by false claims about the terms' origins, consider them to be offensive; that's just cussedness on my part. But when a word's unwanted connotation stems from an alternate meaning, and not what I see as an unsound rejection of the word that deserves to be fought, I prefer to avoid conjuring up that unwanted connotation; and I'd counsel others to do the same. (Thanks to Ben Barros for reminding me about this matter.) Related Posts (on one page): More from the Language Police:
A former classmate of mine e-mailed me to complain about Justice Breyer's recent opinion in Burlington Northern Co. v. White. Among other things, she faulted it for using "at least one split infinitive":
I've often come across this assertion that split infinitives are somehow wrong. The modern usage dictionaries that I have seen describe them as fully standard. Webster's Dictionary of English Usage (1989) reports that "the objection to the split infinitive has never had a rational basis." The Harper Dictionary of Contemporary English Usage (1985) calls it a "pedantic bogey." Bryan Garner's Dictionary of Modern American Usage (1998) likewise says that they're in principle just fine. So even if one is a prescriptivist who believes in relying on the prescriptions of the authorities, the weight of the authorities is firmly on the side of splitting being just fine. (There are surely reasons to avoid certain kinds of split infinitives, for instances ones where there are many adverbs between the "to" and the verb, e.g., "to boldly yet carefully and thoughtfully go"; but that's a problem with the particular usages, not with split infinitives generally.) Nor is there any logical reason to avoid split infinitives, even setting aside the difficulties with using logic to analyze English usage. The origin of the anti-split sentiment seems to be that in Latin infinitives just can't be split. But English isn't Latin. Moreover, sometimes unsplitting will change the meaning or at least the emphasis: Consider Garner's example, "she expects to more than double her profits next year," or Fowler's, "modifications intended to better equip successful candidates for careers in India." Unsplitting also often makes the revised version sound stuffier, at least to my ears: Consider Breyer's split infinitive, "such a limited construction would fail to fully achieve the anti-retaliation provision's 'primary purpose.'" "Such a limited construction would fully fail to achieve" means something different. "Such a limited construction would fail to achieve fully the anti-retaliation provision's 'primary purpose'" is fine, but it strikes me as clumsier -- a personal judgment that I wouldn't foist on others, but that's more than ample to justify Justice Breyer in writing "to fully achieve." When I mentioned most of this to my correspondent, she replied, "I disagree on split infinitives. They are bad form." Well, it's hard to argue with a distaste for split infinitives, just as it's hard to argue with a distaste for butter pecan ice cream. Yet it likewise seems to me hard to credibly condemn others for not sharing one's disaste. Related Posts (on one page):
No-Yankees Covenant:
The Island Packet (South Carolina) reports:
Thanks to Never Yet Melted for the pointer. Related Posts (on one page):
New York High Court Rejects Gay Marriage Claim:
By 4-2, the court held that the state constitution does not compel the recognition of same-sex marriages. The matter, said the court, is for the state legislature to decide. It is the first state high court to address the substance of a gay-marriage claim since the Massachusetts decision in 2003. The ruling, coming from a fairly progressive court in a deep-blue state, has to be considered a significant set-back for gay-marriage litigants. At the same time, it undermines further the arguments of those who have claimed that a federal marriage amendment is needed to block activist courts from imposing gay marriage on the nation. Now we await decisions from high courts in New Jersey and Washington. More on the substance of the opinion after I have a chance to read it. Related Posts (on one page):
Fun Language History Quiz,
from Pajama Guy: Match the phrase with the writer who created or popularized it....Answers are pointed to buy the link given above. Wednesday, July 5, 2006What Should We Libertarians Call Ourselves? How About Libertarian!
David's post raises the perennial issue of what term libertarians should use to refer to themselves. I propose the radical option of embracing the term by which we are already known to 90% of the people who know about us at all: libertarian. If I were writing on a blank slate, I would argue that we should opt for the terminology favored by F.A. Hayek and Milton Friedman and still used in Australia and many European countries: what we call libertarians should be called "liberals," today's liberals should be called "social democrats" (as they are in most of Europe), and the nonlibertarian right can continue to be known as "conservatives," while the word "conservative" should NOT be used to refer to libertarians. Hayek even wrote an essay entitled "Why I am Not a Conservative" to explain the differences between conservatism and liberalism/libertarianism; most of his points are highly relevant today. However, Hayek and Friedman lost this terminological battle a long time ago, and I'm not sure we should want the term "liberal" back today even if we could have it. After all, the word now has such negative associations that even many liberals (in the modern sense of the word) no longer use it and have instead taken to calling themselves "progressives." Sticking to "libertarian" avoids the substantial annoyance and cost of trying to change the language. Moreover, the term has important positive connotations because of the link to the word "liberty," traditionally perhaps the most important of American values and among the most important principles of Western civilization more generally. The other terms proposed by various people are either awkward ("market liberal"), confusing ("classical liberal"), or lacking in any positive connotations ("minarchist," etc.). Regarding David's suggestion of "free exchange," I think it's clever, but has several shortcomings. Most important, many of the freedoms defended by libertarians do not involve any kind of exchange. Moreover, the term is more awkward and has fewer positive connotations than libertarianism. Indeed, for many people, the word "exchange" may conjure up negative images of evil capitalists or scam artists. Libertarians today face many daunting obstacles, but I don't think that the need for a new name is one of them. The one we have is perfectly fine, especially compared to the available alternatives. UPDATE: David e-mails:
I apologize for misinterpreting his post. I think the misunderstanding arose from the fact that most of the terms he discussed (e.g. - classical liberalism, market liberalism, etc.) are usually thought of as substitutes for the term "libertarianism" rather than as explanations of its meaning. Nonetheless, I think most of my original points stand, to the extent that they were directed at the general debate over what libertarians should call themselves rather than at David's arguments specifically. Regarding the term "free exchange," I think most of my reservations about it apply even if it is used only in the way David envisions. If I had to come up with a short explanatory phrase about what libertarianism means, I would prefer something like "maximizing liberty" or "minimizing the power of government." Obviously, these would require explanation in order to apply to particular issues (and even libertarians will disagree about the applications among themselves). But the same is true of any brief phrase - as David pointed out in his original post. Related Posts (on one page):
Why Do They Do It?
Pretty much every day, in pretty much every newspaper in the country, there is a story that goes something like this [taken from todays WSJ]: "Yesterday, the Dow Jones industrials fell xxx points to yyyy on new concerns about interest rates and anxiety over North Korea's missile tests." Or the Dow rose, due to "increasing optimism about prospects for peace in the Mideast." Or whatever. It's complete and utter nonsense. The market did in fact fall yesterday. But how could anyone possibly know that it was due to "concerns about interest rates," or "anxiety about North Korea's missile program"? Hundreds of thousands -- millions -- of individual trading decisions go into determining whether the market goes up or goes down on any given day. I don't get it -- I really don't. Are we really so desperate to believe that we can explain everything that we take some sort of comfort from stories like these? "Free Exchange":
I don't like most of the terms used to describe libertarian beliefs: Free markets? Not everything is about economic markets, and left-wing critics have a field day pointing out that government itself establishes the underlying rules of the market. Market liberal? Again not everything is about economic markets, and just generally, yuck. Classical liberal? Kind of like a secret handshake, only those in the know have any idea what this means. Besides, many of historical figures often identified as classical liberals wouldn't know what to make of modern libertarianism. Individualism? Socialism would actually be a better description, if it hadn't been captured by collectivists. At one time, libertarian types were called socialists, and Marxists called themselves libertarians (Chomsky still calls himself a libertarian, last I heard). Too confusing to try to undo this one. So I thought about an alternative. I like "political pacifist," except that pacifism has never been very popular. So what do I, and other libertarians, believe in? Free exchange! Or, if you prefer, liberty of exchange. People should have the freedom to exchange goods and services in a market. They should also have the presumptive freedom to volunteer (or not), to pursue the occupations or avocations of their choice, to make whatever love and sex arrangements they want, to use psychoactive substances, to terminate pregnancies, to travel, write, think, create art, and exchange any of their goods, talents, and whatnot for whatever suits them. Of course, there are many caveats to all this, and libertarians will disagree among themselves as to what the limits of free exchange are. Nevertheless, I think it's fair to say that our underlying common ideology is free exchange. I'm not expecting this phrase to get into general circulation, but you never know. UPDATE: Yeah, I know this has the potential to be confused with a shoppers' platform, but do you have any better ideas? Related Posts (on one page): Gay Cave Jews:
That's the Google search that, according to Sitemeter, brought a reader to the Volokh Conspiracy. I'm now intensely curious as to what this individual was searching for. Medical/Scientific Conventional Wisdom That Turned Out to be Wrong:
For a paper I'm working on, I'm collecting recent examples of conventional wisdom among health professionals that turned out to be wrong once the issue was studied in more depth. I'm not looking for eccentricities, but for generally accepted theories that had a reasonable basis, but have since been refuted or at least strongly challenged. Recent examples I can think of: (1) that it's generally good to give estrogen to post-menopausal women; (2) that being overweight, but not obese, lowers one's life expectancy; (3) that eating lots of fiber reduces the risk of colon cancer; (4) that eating tomatoes lowers the risk of prostate cancer. More examples, along with citations to any relevant scientific studies (including for the examples above), would be most appreciated. Wisdom from commentors regarding how unproven theories become conventional wisdom in the absence of hard data would also be welcome. Sushi:
The truth is revealed here. Thanks to Michael Barclay for the pointer. Channeling the Framers, Justice Stevens' Way:
I was just rereading the Supreme Court's most recent campaign finance / free speech case, and was again struck by these paragraphs at the end of Justice Stevens' opinion. Vermont law (among other things) limited the campaigns of candidates for state representative to spending $2000 for the primary and general election campaigns combined. The law allowed higher limits for other races, including statewide races, but even those limits would be unconstitutional under Buckley v. Valeo. Justice Stevens argued that these restrictions should be upheld against a First Amendment challenge. Most of his argument focused on the practical effects of these limits, but he closed with this:
There are many arguments for and against relying heavily on what the Framers thought about the provisions that they were enacting, and that the Court is now interpreting. But I wonder how helpful it is to simply engage in free-form conjectures about what the Framers would have thought, with no real documentary support. Would the Framers have been "appalled" by modern fundraising to the point of restricting candidates' ability to spend money on their campaigns? Or would they have been "appalled" by restrictions on people's right to pool their property in order to express their views? Would they have "surely ... not ... expected judges to interfere" with restrictions on the spending of money to express one's views? Or would they have thought that laws "requir[ing] candidates to budget their activities" -- which is to say to avoid some kinds of speech in order to be able to engage in other kinds of speech -- are quintessential interferences with the freedom of speech? Justice Stevens is "firmly persuaded" that the Framers would have taken one view. I'm sure others are "firmly persuaded" of the contrary. Perhaps there's some evidence that can point us one way or the other. But Justice Stevens doesn't cite any such evidence, other than parts of the Constitution that don't expressly speak to this (and that in any event would presumably be as limited by the First Amendment as are other grants of Congressional power). I'm sure that Justice Stevens sincerely believes that the Framers would have thought as he does. Yet that's an easy thing to believe, regardless of the historical support, no? Many modern Americans respect the Framers of the Constitution. These modern Americans naturally think the Framers were generally thoughtful and reasonable people. Yet of course these modern Americans also think that they themselves are generally thoughtful and reasonable people. Given this coincidence, it seems very easy for us to just assume that the Framers would have shared our views on some subject, and that we share the Framers' views. All the more reason, I think, for us to be skeptical about arguments about what the Framers would have though, or "surely would not have expected," when those arguments lack even a single citation to a Framing-era source discussing what the Framers actually seem to have thought or expected about related questions. Krauthammer on Gaza:
Last year, I held out some hope that the Palestianians would seize the opportunity presented to them by the Israeli withdrawal from Gaza, and begin building a state that could live in peace with Israel. After all, leftist Ha'aretz columnists assured readers that the main reason Palestinians did not embrace Oslo and the "peace process" was their belief that Israel would never truly withdraw from territory occupied in 1967. I was wrong, and now see the withdrawal from Gaza, and especially the failure to retain control at the Egypt-Gaza border (which raised my eyebrows even last year) as reckless and counterproductive. And here's what Krauthammer has to say:
English Town Censors Anti-Gay Singer:
On pain of losing its license, a club in Brighton has canceled a performance by Buju Banton, known for violent anti-gay lyrics. Two years ago, the police and city council in Manchester prohibited Buju Banton from performing. Hmm, how do I get the local authorities to close down the Guardian? Bubble News--Heebner Predicts Huge Drop in Prices:
More evidence that the smart money is betting against a "soft landing," from today's Wall Street Journal (subscription only):
Combine this with, among other things, the plunge in homebuilder stocks and the end of the condo conversion craze, and a rather pessimistic picture emerges. Mad Bad Vlad Zhirinovksy Reconnects With His Jewish Roots,
claims to have abandoned anti-Semitism, brags about his Jewishness. No, really. (The bragging part is in the second-to-last paragraph here.) Thanks to Mark in Mexico for the pointer. Tuesday, July 4, 2006Freakonomics:
I know it's a little late in the game, but I just read Freakonomics over the weekend. It's a good read, and I applaud the authors for bringing economic reasoning to the masses (okay, the small percentage of folks who actually read nonfiction). On the other hand, in some ways I was underwhelmed. Some of the "brilliant insights" from the book, while perhaps not in general circulation, didn't strike me as either especially brilliant or original. Within the range of normal, parenting doesn't really affect children's test scores? Old news. Swimming pools in the yard are much more dangerous to children than guns in the house? Anyone remotely familiar with the literature on gun safety would have easily guessed this, as owning a gun is not very dangerous. And the fact that pools pose significant safety problems seems pretty well known, too. Legal abortion may (I'm not convinced that this has been "proven") reduce crime rates? Many years ago, I asked a (conservative)relative what she thought about whether abortion should be legal. She responded, "I want abortion to be legal because otherwise those kids will grow up to mug my kids." Low-level drug dealers don't get paid much? I read an article many years ago in Insight on the News about how teenage residents of slums go back and forth between menial jobs and drug dealing. "Gun buybacks" and other popular quick fixes don't reduce gun crime? Duh! [It's true that Leavitt is rebutting common notions promoted by the news media, but perhaps because of my background writing about "junk science," I'm not exactly shocked that the MSM tends toward illiteracy on scientific, statistical, and technical issues--anyone remember the breast implant fiasco?] (I did find the material on catching "cheating teachers" in Chicago quite interesting, however.) Sure, Leavitt deserves a lot of credit for using the tools of economics and statistics to get hard(er) data on these matters, and for trying to answer interesting real-world questions instead of retreating into the typical academic economist's world of math. But the plaudits he's received for having such an incredibly original and creative mind strike me as excessive, as very little in the book seemed especially new or original. But an A+ to Leavitt (and Dubner) as popularizers. Adam Smith's argument for American independence:
In addition to the writing of the Declaration of Independence, 1776 also saw the publication of Adam Smith's Wealth of Nations. Writing just a few months before the Declaration, the founder of modern economics and a key influence on modern libertarianism and conservatism endorsed American independence for somewhat different reasons than Jefferson & Co. did:
Adam Smith, The Wealth of Nations, Book V, Chapt. III (1776). What to the Slave is the Fourth of July?
Elevate your Independence Day by reading this moving 1852 oration by Frederick Douglass in its entirety. There is so much to appreciate in this speech, it is difficult to select excerpts. But here is one passage I particularly like:
But, your fathers, who had not adopted the fashionable idea of this day, of the infallibility of government, and the absolute character of its acts, presumed to differ from the home government in respect to the wisdom and the justice of some of those burdens and restraints. They went so far in their excitement as to pronounce the measures of government unjust, unreasonable, and oppressive, and altogether such as ought not to be quietly submitted to. I scarcely need say, fellow-citizens, that my opinion of those measures fully accords with that of your fathers.Or this: Must I undertake to prove that the slave is a man? That point is conceded already. . . . It is admitted in the fact that Southern statute books are covered with enactments forbidding, under severe fines and penalties, the teaching of the slave to read or to write. When you can point to any such laws, in reference to the beasts of the field, then I may consent to argue the manhood of the slave. When the dogs in your streets, when the fowls of the air, when the cattle on your hills, when the fish of the sea, and the reptiles that crawl, shall be unable to distinguish the slave from a brute, there will I argue with you that the slave is a man!Or this: What, to the American slave, is your 4th of July? I answer: a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciations of tyrants, brass fronted impudence; your shouts of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parade, and solemnity, are, to him, mere bombast, fraud, deception, impiety, and hypocrisy — a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation on the earth guilty of practices, more shocking and bloody, than are the people of these United States, at this very hour. Go where you may, search where you will, roam through all the monarchies and despotisms of the old world, travel through South America, search out every abuse, and when you have found the last, lay your facts by the side of the everyday practices of this nation, and you will say with me, that, for revolting barbarity and shameless hypocrisy, America reigns without a rival.But later he turns to the Constitution: But it is answered in reply to all this, that precisely what I have now denounced is, in fact, guaranteed and sanctioned by the Constitution of the United States; that the right to hold and to hunt slaves is a part of that Constitution framed by the illustrious Fathers of this Republic.He then concludes with what could have been a paean to the Internet and other liberating technologies: Allow me to say, in conclusion, notwithstanding the dark picture I have this day presented of the state of the nation, I do not despair of this country. There are forces in operation, which must inevitably work The downfall of slavery. "The arm of the Lord is not shortened," and the doom of slavery is certain. I, therefore, leave off where I began, with hope. While drawing encouragement from the Declaration of Independence, the great principles it contains, and the genius of American Institutions, my spirit is also cheered by the obvious tendencies of the age. Nations do not now stand in the same relation to each other that they did ages ago. No nation can now shut itself up from the surrounding world, and trot round in the same old path of its fathers without interference. The time was when such could be done. Long established customs of hurtful character could formerly fence themselves in, and do their evil work with social impunity. Knowledge was then confined and enjoyed by the privileged few, and the multitude walked on in mental darkness. But a change has now come over the affairs of mankind. Walled cities and empires have become unfashionable. The arm of commerce has borne away the gates of the strong city. Intelligence is penetrating the darkest corners of the globe. It makes its pathway over and under the sea, as well as on the earth. Wind, steam, and lightning are its chartered agents. Oceans no longer divide, but link nations together. From Boston to London is now a holiday excursion. Space is comparatively annihilated. Thoughts expressed on one side of the Atlantic are, distinctly heard on the other. The far off and almost fabulous Pacific rolls in grandeur at our feet. The Celestial Empire, the mystery of ages, is being solved. The fiat of the Almighty, "Let there be Light," has not yet spent its force. No abuse, no outrage whether in taste, sport or avarice, can now hide itself from the all-pervading light. The iron shoe, and crippled foot of China must be seen, in contrast with nature. Africa must rise and put on her yet unwoven garment. "Ethiopia shall stretch out her hand unto God." In the fervent aspirations of William Lloyd Garrison, I say, and let every heart join in saying it:For more on Douglass and this speech see. Frederick Douglass and the Fourth of July (Hardcover) by James A. Colaiaco For more on Spooner and Douglass's version of orginalism you can look at Was Slavery Unconstitutional Before the Thirteenth Amendment? Lysander Spooner's Theory of Interpretation (Civil comments only.) Monday, July 3, 2006Value of George Mason Final Four Run:
In thought this was pretty interesting--from an article on SI.com (seems to be subscriber only):
Update: Also, George Mason's basketball team and Jim Larranaga have been nominated for ESPY awards this year. Vote here. Oy, how do I choose between Larranaga and Bill Cowher for Coach of the Year? Sunday, July 2, 2006No Sunday Song Lyric:
Redheadlaw7 said yes. At least one of us is crazy, and the other is blessed. No lyric could do it justice. WaPo on Farm Subsidies:
The front page of today's Washington Post has an interesting report on farm subsidies. An excerpt:
The Post's nine-month investigation found farm subsidy programs that have become so all-encompassing and generous that they have taken much of the risk out of farming for the increasingly wealthy individuals who dominate it. |