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Saturday, July 29, 2006
Property, Judicial Power, and Minority Rights:
I recently read Seton Hall law professor Rachel Godsil's excellent forthcoming Michigan Law Review article "Race Nuisance: The Politics of Law in the Jim Crow Era." An excerpt from the abstract:
This article explores a line of cases in the Jim Crow era in which courts ruled against white plaintiffs trying to use common law nuisance doctrine to achieve residential segregation. These “race-nuisance” cases complicate the view of most legal scholarship that state courts during this era openly eschewed the rule of law in service of white supremacy. Instead, the cases provide rich social historical detail showing southern judges wrestling with their competing allegiance to precedent and the white plaintiffs' pursuit of racial exclusivity. Surprisingly to many, the allegiance to precedent generally prevailed. The cases confound prevailing legal theories, particularly new formalism and critical race theory's interest convergence. While superficially supportive, the article illustrates the limitations of formalism's reach by also exploring the related line of racially restrictive covenant cases. Similarly, while many of the cases appear to support white property owners' interests, this article demonstrates that the race-nuisance cases are better understood as demonstrating that white interests are multi-faceted.
As Professor Godsil notes in the body of the article, her analysis has important elements in common with arguments that co-blogger David Bernstein and I advanced in a 2004 Yale Law Journal review essay : that judicial power can sometimes protect minority rights even in the face of widespread societal prejudice, and that protection of property rights will often benefit unpopular racial and ethnic groups. Of course, Godsil also takes issue with some of our points. For example, she suggests that the Supreme Court's 1917 invalidation of residential segregation laws in Buchanan v. Warley was not as "remarkable" a departure from the racist norms of the era as we suggest, given southern state courts' reluctance to rule in favor of whites who sought to expel blacks from their neighborhoods by filing "race-nuisance" claims. This point is in tension with the fact that three southern state supreme courts upheld the constitutionality of racial segregation laws prior to Buchanan, while others concluded that they might be acceptable under some circumstances, as Godsil herself notes elsewhere in the piece. Be that as it may, Godsil's piece is an important contribution to the literature on judicial power, property, and minority rights, and of course I'm happy with anything that increases my citation count!
Finally, it is amusing to note that Godsil at one point cites me as "Sonia Somin." Perhaps she is confusing me with my mother, Sofya Somin. Or maybe my gender identity crisis has still not been resolved, despite Eugene Volokh's heroic efforts.
Who is the Real Anti-Muslim Here?
New Zealand politician Don Brash has been accused of making "racist" and "anti-Muslim" remarks (hat tip - Tim Blair):
A prominent New Zealand politician was accused of racism on Saturday after a speech in which he said immigrants who did not accept the country's "bedrock values" should not be allowed to stay.
Don Brash, leader of the conservative opposition National Party, defined the values as "an acceptance of democracy and the rule of law, religious and personal freedom and legal equality of the sexes"....
Javed Khan, president of the [New Zealand] Federation of Islamic Associations, told Radio New Zealand the speech made it clear that Brash wanted immigrants to fit his view of a mainstream New Zealander, and therefore excluded people like Muslims.
Pancha Narayanan, president of the Federation of Ethnic Councils, said a comment by Brash that immigrants should have a good command of English, or quickly learn the language, was a sign that he would prefer them to come from English-speaking countries.
He said the speech had an element of racism and an anti-Muslim tone.
Brash's critics' remarks are far more anti-Muslim than anything he said. The critics imply that Muslims inherently reject "democracy and the rule of law, religious and personal freedom and legal equality of the sexes." That is a far more severe indictment of Islam than anything in Brash's speech. Sadly, versions of Islam that do indeed reject these values are all too common in many parts of the world. Hinting at this fact, as Brash did, is not "anti-Muslim" unless one accepts the premise that such views are embedded in the very nature of that religion. Instead of attacking Brash, the leaders of New Zealand's Muslim community would do better to devote their efforts to promoting versions of Islam that embrace the values he listed. By claiming that his statement is anti-Muslim, they merely strengthen the perception that Islam and liberal democratic values are mutually exclusive.
It's also worth noting that Muslims are not a "race," anymore than Christians are. Both religions include adherents of many different races. Even if Brash's remarks really were anti-Muslim, that would not also make them "racist."
Finally, I can personally testify (as can millions of other immigrants in the US and, I presume, in New Zealand) that immigrants from non-English speaking countries can indeed "quickly learn the language." Learning the local language is an important prerequisite for immigrants' economic and social success in any society.
None of these points are particularly profound or original. However, they need to be made because claims that liberal democratic values are "anti-Muslim" and that criticism of radical Islamist ideologies is somehow "racist" are all too common. Those who make such arguments do a disservice to Muslims and non-Muslims alike.
Senator Kennedy Assails Alito and Roberts:
Senator Ted Kennedy (D-MA) did nearly all he could to derail the confirmations of John Roberts and Samuel Alito to the Supreme Court. Having lost those fights, Kennedy is still at it, as evidenced by this Washington Post op-ed alleging that both nominees misled the Senate Judiciary Committee and concealed their judicial philosophies during their respective hearings. This, Kennedy claims, shows that the judicial confirmation process is badly broken. the careful, bipartisan process of years past -- like so many checks and balances rooted in our Constitution -- has been badly broken by the current Bush administration. The result has been the confirmation of two justices, John G. Roberts Jr. and Samuel A. Alito Jr., whose voting record on the court reflects not the neutral, modest judicial philosophy they promised the Judiciary Committee, but an activist's embrace of the administration's political and ideological agenda. Yet as my Bench Memos co-blogger Matthew Franck notes, Senator Kennedy misleads his readers through selective quotation and misrepresentation, taking words out of context and (in one instance) altering the language of a Supreme Court opinion to make his point.
If anything, Franck is too easy on Senator Kennedy, highlighting only a handful of his distortions. Setting aside the misquotation of Justice Thomas' Hamdan, Senator Kennedy's essay is exceedingly disingenuous. The hearings were a "sham" because some Republican Senators praised rather than probed the nominees, but not because some Democratic Senators prejudged the nominees, sought to play "gotcha" politics, played to the cameras, and asked misleading questions. Are we to believe that Senator Kennedy cared about the substantive answers to his questions?
Senator Kennedy accuses Justice Alito of a "pattern" of deception, including misleading the committee about his views of criminal procedure. When questioned, he insisted that one of the judiciary's most important roles "is to stand up and defend the rights of people when they are violated." But Alito cast the deciding vote in Hudson v. Michigan, in which the court decided -- contrary to almost a century of precedent -- that evidence gathered during an unconstitutional search of a suspect's home could be used to convict him. Whatever one thinks of the merits in Hudson, it is hard to argue that the Scalia majority Alito joined was "contrary to almost a century of precedent." See, for instance, Orin Kerr's analysis here.
In other places, Kennedy combines distortions and disingenuousness at the same time. In Gonzales v. Oregon, a majority of the Supreme Court held that the Justice Department lacked the power to undermine Oregon's Death With Dignity Act. However, Roberts joined a startling dissent by Justice Antonin Scalia, stating that the administration's actions were "unquestionably permissible" because the federal government can use the Constitution's commerce clause powers "for the purpose of protecting public morality." Here Kennedy misrepresents the substantive issue in the case, which concerned the interpretation of the Controlled Substances Act, not the scope of federal power under the Commerce Clause. While I disagreed with Justice Scalia's dissent, it was hardly "startling." What is "startling," however, is Senator Kennedy's suggestion that he now believes the federal commerce power is limited (and that such limits should be enforced in federal court).
Senator Kennedy is simply upset that President Bush nominated, and the Senate confirmed, two intelligent, conservative jurists. I don't agree with all of their legal opinions thus far, but it's hard to claim that either Roberts or Alito was unqualified or should not have been confirmed. I also agree with Franck that any criticism of either justice (or, for that matter, any justice) should focus on their judicial philosophy, and not the specific policy results in specific cases. the senator from Massachusetts provides all the evidence one needs that, for some senators anyway, it is not legal thinking that matters at all. It is only results. From start to finish, this column amounts to one long whine that Chief Justice Roberts and Justice Alito don’t share Senator Kennedy’s view that Senator Kennedy’s policy preferences should be enacted by the Supreme Court. What Kennedy doesn’t have is anything resembling a legal argument against a vote cast, or an opinion written or joined, by either of these two justices.
Wikipedia Celebrates 750 Years Of American Independence
As someone who has occasionally cited Wikipedia in scholarship, I found this Onion article amusing (tip to my daughter):
Wikipedia Celebrates 750 Years Of American Independence:
Founding Fathers, Patriots, Mr. T. Honored
July 26, 2006
NEW YORK—Wikipedia, the online, reader-edited encyclopedia, honored the 750th anniversary of American independence on July 25 with a special featured section on its main page Tuesday.
"It would have been a major oversight to ignore this portentous anniversary," said Wikipedia founder Jimmy Wales, whose site now boasts over 4,300,000 articles in multiple languages, over one-quarter of which are in English, including 11,000 concerning popular toys of the 1980s alone. "At 750 years, the U.S. is by far the world's oldest surviving democracy, and is certainly deserving of our recognition," Wales said. "According to our database, that's 212 years older than the Eiffel Tower, 347 years older than the earliest-known woolly-mammoth fossil, and a full 493 years older than the microwave oven."
"In fact," added Wales, "at three-quarters of a millennium, the USA has been around almost as long as technology."
The commemorative page is one of the most detailed on the site, rivaling entries for Firefly and the Treaty Of Algeron for sheer length. Subheadings include "Origins Of Colonial Discontent," "Some Famous Guys In Wigs And Three-Cornered Hats," and "Christmastime In Gettysburg." It also features detailed maps of the original colonies—including Narnia, the central ice deserts, and Westeros—as well as profiles of famous American historical figures such as Benjamin Franklin, Special Agent Jack Bauer, and Samuel Adams who is also a defensive tackle for the Cincinnati Bengals.
"On July 25, 1256, delegates gathered at Comerica Park to sign the Declaration Of Independence, which rejected the rule of the British over its 15 coastal North American colonies," reads an excerpt from the entry. ...
The exhaustive entry also includes links to video clips of the First Thanksgiving, hosted by YouTube.
The special anniversary tribute refutes many myths about the period and American history. According to the entry, the American Revolution was in fact instigated by Chuck Norris, who incinerated the Stamp Act by looking at it, then roundhouse-kicked the entire British army into the Atlantic Ocean. A group of Massachusetts Minutemaids then unleashed the zombie-generating T-Virus on London, crippling the British economy and severely limiting its naval capabilities. . . .
While other news and information websites chose to mark the anniversary in a muted fashion, if at all, Wikipedia gave it prominent emphasis over other important historical events from the same day, including the independence of the nation of Africa in 1847, the 1984 ascension of Constantine to Emperor of the Holy Roman Emperor, and the 1998 birth of Smokey, a calico cat belonging to Mark and Becky Rousch of Erie, PA. . . .
"The Revolution's main adversaries were the patriots and the people from Braveheart," said speaker Tim Capodice, who has edited hundreds of Wikipedia entries on subjects as diverse as Euclidian geometry and Ratfucking. "The patriots, being a rag-tag group of misfits, almost lost on several occasions. But after a string of military antics and a convoluted scheme involving chicken feathers and an inflatable woman, the British were eventually defeated despite a last-minute surge, by a score of 89-87."
Despite spirited discussions bloggers present later described as "eluminating" and "sweet," the symposium was cut short when differences of opinion among the panelists degenerated into personal insults and name-calling.
While Wikipedia's "American Inderpendance" page remains available to all site visitors, administrators have suspended additions and further edits to its content due to vandalism.
How Israel and Thailand are preventing jihadi shootings:
At schools and other youth centers, they allow or require the presence of armed adults, such as teachers, as I detailed in a 2004 article for National Review Online. These policies were adopted to deal with well-organized terrorist attacks, rather than with perpetrators such as the lone Jew-hater who apparently carried out yesterday's crimes in Seattle. Lone terrorists, especially those who are mentally ill, might be less subject to rational deterrence than are organized terrorist gangs. On the other hand, lone terrorists, should they attempt to instigate an attack, would be all the more easily defeated by the guardian adults, since the perpetrator would be acting alone, and would usually not be as careful about planning as are organized terrorist gangs.
Like Eugene Volokh, I am skeptical about "hate crime" laws as a response to crimes such as the Seattle shooting. In a 2003 Issue Paper for the Independence Institute, I examined the record of Colorado's "ethnic intimidation" statute, and found the statute to have contributed almost nothing to effective criminal justice in Colorado. While calling for repeal of the ethnic intimidation statute, I argued that the penalty for hate crime hoaxes should be substantially increased, since hate crime hoaxes (like hate crimes themselves) cause broad fear in the community. PDF version. HTML version.
On another subject, my Rocky Mountain News media column notes how the Denver Post erred in describing Republican gubernatorial candidate Bob Beauprez's stance on gun control. And I chastise the Denver Newspaper Agency for running as bait-and-switch web ad promising "You have been chosen to receive a FREE 42-inch Samsung or Panasonic HDTV."
Finally, those of you who read Spanish might enjoy Política de Oficiales: Los recientes escándalos del departamento de policía son el resultado de la creciente intervención del estado federal y de las prácticas de empleo racistas. It's a Spanish translation of an article that Mike Krause and I wrote for American Outlook in 2001; examining the Rampart scandal in Los Angeles, and similar problems in other big city police departments, we suggest that the problems of corruption and illegal violence involving the police are aggravated by excessive federal involvement, race-based hiring, and the drug war.
Got Yogurt?
Saturday baby-blogging. Natalie Ilana Bernstein, almost ten months.
Anti-Semitic Murder (and Attempted Multiple Murder) in Seattle:
The Seattle Post-Intelligencer reports:
Six women were shot -- one fatally -- this afternoon at the Jewish Federation of Greater Seattle by a man who told a witness he was upset about "what was going on in Israel." ...
"We believe it's a lone individual acting out his antagonism," said David Gomez, who heads the FBI's counterterrorism efforts in Seattle....
"He said 'I am a Muslim American, angry at Israel,' before opening fire on everyone," [Marla] Meislin-Dietrich[, who works at the center,] said. "He was randomly shooting at everyone." ...
Pajamas Media has a round-up; thanks to InstaPundit for the pointer.
The law should, I think, treat such crimes with the same severity as it would a similar crime motivated just by a desire to kill random people. While I think many laws that enhance penalties for crimes in which victims are chosen based on race, religion, sexual orientation, and the like are constitutional, I think they are unwise and draw a moral distinction that strikes me as on balance inadequate (not irrational by any means, but on balance inadequate). Nonetheless it certainly makes sense that we would notice these crimes for what they are -- manifestations of ethnic hatred that needs to be recognized in order to be fought.
Friday, July 28, 2006
The Party of God's Hero:
As we all know, the current war in Lebanon and Israel started when Lebanese Party of God terrorists crossed into Israel and kidnapped two soldiers, murdering others. The original goal was apparently to force a prisoner exchange. In particular the Party of God seeks the release of Samir Kuntar, whom Israel has refused to release in prior prisoner exchanges. Who is Mr. Kuntar, and why is he in an Israeli prison?
Mr. Kuntar is a killer. In 1979, at the age of 17, he and three others, recruited by a Palestinian [terrorist] group ... launched a small boat from the tip of Lebanon’s southern coast and came ashore at the northern Israeli town of Nahariya. There, they killed a police officer they encountered, before taking a family of four in an apartment hostage.
The mother, Smadar Haran, had managed to slip into a crawl space with her two-year-old daughter Yael and avoid detection. But as police began to arrive, the gunmen took her husband Danny and four-year-old daughter Einat down to the beach, where they shot Danny in front of his daughter and smashed in her skull with a rifle butt.
Apparently, Kuntar is a hero not only to the Party of God, but to many Palestinians.
Kuntar should have been executed well over twenty years ago, not necessarily in a pleasant manner. Unfortunately, Israel does not have the death penalty except for Holocaust perpetrators, leading to consistent-hostage taking to try to win the release of the likes of Kuntar.
In any event, Kuntar came to mind because I received an email from a reader suggesting that I try to understand things from the perspective of the supporters of the Palestinian and Party of God terrorist groups. Sorry, but while I'm reasonably well read on the radical Arab perspective, whatever someone's grievance I refuse to "understand" those who idolize cold-blooded murderers of children. [Remember the exhibit at a Palestinian university celebrating a mass terrorist murder at Sbarro's Pizza in Jerusalem?] The fact that Kuntar is a hero to the Party of God and to the Palestinian terrorist groups reveals just about all one needs to know about them.
I recently read Rabbi Daniel Gordis's book, Home to Stay, about his aliyah to Israel. The book was only moderately interesting, mostly for its account of how Gordis went from being an ultra-dove when he moved to Israel to being much more of a realist after Camp David 2000. Gordis did made one point in particular that stuck with me: living in Jerusalem (one of the more "right-wing" parts of Israel) during the worst of Palestinian-Israel violence of the Second Intifadah, he never heard a single Israeli ever express glee at [unintended, but inevitable given the urban warfare involved] civilian deaths on the Palestinian side. [Someone is bound to bring up the few on the lunatic fringe who consider Baruch Goldstein a hero. Duly noted, but it's called the lunatic fringe for a reason.] Some accepted these deaths as the unfortunate price of defeating the Second Intifadah, others protested against them, but no one ever celebrated them, or expressed joy at the suffering of the survivors. Contrast that with grisly recreations of pizzeria bombings, candies being handed out in Palestinian areas when a terrorist murder takes place, the celebrations in the streets in 9/11, and so on, and you see the difference between a decent, modern society, and its enemies.
Search of Congressman Jefferson's Office:
The AP reports:
A federal appeals court on Friday barred the Justice Department from reviewing evidence seized from a Louisiana congressman's office during an unprecedented FBI raid on his Capitol Hill office in May.
A three-judge panel ordered a federal trial judge to ensure that Democratic Rep. William Jefferson be given copies of seized evidence ... [so that Jefferson has the chance] to invoke legislative privilege claims in private with the trial judge.
Thanks to Ron Coleman (Dean's World) for the pointer. Unfortunately, I couldn't find the opinion on the D.C. Circuit site, findlaw, WESTLAW, or LEXIS, so don't have anything more to say about it yet.
Dartmouth Constitution Battle:
Many of you saw the story in the New York Times a few weeks back regarding the proposed Dartmouth alumni constitution (and mentioned by Orin here). The Times story was triggered by a letter objecting to the cancellation of this year's elections for the alumni executive committee and the general debate over the wisdom of the constitution. Those interested in the folow-up to the Times story may want to read some of the recent commentary offered by Joe Malchow, particularly regarding the controversial decision to cancel the annual elections of the alumni executive committee. After doing some research it turns out that "annual" means, well, "annual" after all, not "every 18 months or whenever we decide to set it."
Malchow also notes the early ramping up of the pro-constitution propaganda machine through the use by proponents of college-affiliated listserves and mailings. Peter Robinson, TJ Rodgers, and I have previously criticized the use of ham-handed procedural and other tactics to try to ram through this constitution. More of this can be expected over the summer.
Malchow's commentary and sources on these issues has been collected on a special page on his web site Dartblog. For those seeking to understand what is going on here, Malchow's analysis is very insightful and he is keeping track of all of the ongoing developments.
And if you click over to Dartblog, you should also check out some of the other links there, including the thoughtful recent joint op-ed by the Presidents of the New Hampshire College Democrats and the Dartmouth College Republicans opposing the proposed constitution, which comes on the heels of a similar joint op-ed last month by the editors of the liberal Dartmouth Free Press and the Dartmouth Review as well as this online petition signed by almost 5% of the rank-and-file student body this spring.
I'll have more to say about all this later this summer, but for now I wanted to provide an update on recent developments for those who saw the Times story. The shame of it all is that until recently everyone generally seemed to agree that 100-year old constitution basically worked fine. Moreover, there will be a handful of short amendments that will be on the ballot this fall to update the constitution in light of modern technology.
Also, to ensure that there is no misunderstanding, I want to stress that anything I say about this matter is solely in my capacity as an alumnus of the College, not as a trustee or on behalf of any other trustees.
Yale Law Journal Call for Submissions -- Deadline Looming:
A reminder about something I'd posted about earlier:
The Yale Law Journal seeks to publish two Articles engaged in a dialogue on a single compelling legal topic. Selected Articles will be published in the same issue in the spring of 2007.
We encourage scholars to submit pieces in development rather than completed pieces ready for submission and publication so that the pieces that will evolve in response to each other. Interested authors should seek out a colleague in their field with a differing viewpoint who will join them in this project.
There is no subject matter limitation for submissions, but the topic should be both contentious and suitable to thorough and engaging discussion.
Each submission should include a partially developed paper of at least 5000 words and the author’s curriculum vitae. The interlocutor should include a prospectus of at least 1200 words, as well as a curriculum vitae. Please send proposals via e-mail in MS Word format to the Features & Symposium Committee at features@yalelawjournal.org. The subject line should read: Debate Proposal: [Title]. All submissions must be received by August 1, 2006, and the Journal will respond by August 15.
If you would like more information, please do not hesitate to email us at features@yalelawjournal.org or visit our website at http://www.yalelawjournal.org/documents/CallforDebate.pdf.
Sincerely,
Brian Wong
Symposium Editor, Yale Law Journal
Debating the DTA Debate:
Last March, Emily Bazelon wrote a Slate column accusing Senators Jon Kyl (R-AZ) and Lindsay Graham (R-SC) of misleading the Supreme Court in their amicus brief discussing the legislative history of the Detainee Treatment Act. The Kyl-Graham brief relied, in part, on a colloquoy that was inserted into the Congressional Record rather than delivered on the floor during an actual Senate debate.
The problem is that Kyl and Graham's colloquy didn't actually happen on Dec. 21. It was inserted into the Congressional Record just before the law passed, which means that the colloquy did not alert other members of Congress to the views it contains. Inserting comments into the Record is standard practice in Congress. What's utterly nonstandard is implying to the Supreme Court that testimony was live when it wasn't. The colloquy is evidence of what Kyl and Graham thought about the meaning of the DTA. But it doesn't show that any other member of Congress shared their understanding. Everything else in the record that directly addresses whether the DTA forces the Supreme Court to toss Hamdan comes from Levin or another Democrat—and explicitly states that the DTA leaves Hamdan alone.
Justice John Paul Stevens majority opinion in Hamdan subsequently picked up on the discrepancy (which was also noted in Hamdan's briefs), as Bazelon reported here.
Stevens dropped a little footnote—actually, a not so little one—about the debate over the DTA on the Senate floor. "While statements attributed to the final bill's two other sponsors, Senators Graham and Kyl, arguably contradict Senator Levin's contention that the final version of the Act preserved jurisdiction over pending habeas cases … those statements appear to have been inserted in the Congressional Record after the Senate debate," Stevens wrote. The italics are his. The embarrassment is the senators'.
On Monday, Ramesh Ponnuru suggested in NRO that the charges against Kyl and Graham were much ado about nothing, and that Justice Stevens himself misrepresented the legislative history of the DTA because the statements upon which he relied in his opinion were also inserted into the record rather than delivered during live Senate debate.
Stevens handles the problem in footnote 10. The statements by Kyl and Graham, he writes, “appear to have been inserted into the Congressional Record after the Senate debate. . . . All statements made during the debate itself support Senator Levin’s understanding” (emphasis in original).
But Stevens has it wrong. None of the statements he cites — on either side of the issue — was made during floor debate in the Senate. All of them were submitted for the record after the debate (but before the vote on the act). Compare the cited passages of the Congressional Record to the CSPAN videotape of the floor debate, and it is clear that Levin’s statement and the other statements supporting his position were inserted after the fact, just as Kyl and Graham’s statements were.
The issue did not end there, however. Yesterday, Emily Bazelon published this response to Ponnuru on Slate.
While it's true that the Democrats don't show up talking about Hamdan on a C-SPAN tape of the four-minute debate that preceded the DTA's passage on Dec. 21, that's because the key statements cited by Stevens and in Hamdan's brief were made weeks earlier. It's also true that other Democrats inserted statements into the record on Dec. 21 to show their support for Levin's understanding of the law. But Hamdan's lawyers didn't try to pass off those statements as live, taking care to refer to them as "comments placed in the Congressional Record."
This morning, Ponnuru published this retort on NRO, defending his on central claim.
She concedes that Hamdan’s lawyers were wrong to claim that the Kyl-Graham colloquy was inserted into the record after the act had passed. She concedes as well that the Democrats’ Dec. 21 statements were inserted after the debate but before the act passed, just like the Kyl-Graham colloquy. But, she writes, “that’s because the key statements cited by Stevens and in Hamdan’s brief were made weeks earlier” (emphasis hers). She’s wrong. Here’s what Justice Stevens writes after trashing Kyl and Graham: “All statements made during the debate itself support Senator Levin’s understanding that the final text of the DTA would not render subsection (e)(1) applicable to pending cases. See, e.g., id., at S14245, S14252–S14253, S14274–S14275 (Dec. 21, 2005).” Every passage he cites is from the record for Dec. 21, and each was inserted after the debate. There’s just no way to defend Stevens’s distinction between those passages and the Kyl-Graham colloquy, which was inserted at the same time.
To be continued?
UPDATE: Yes. Emily Bazelon has attached an addendum to her last piece, and Ramesh Ponnuru makes further arguments here in The Corner, concluding: I don’t take any strong position on whether a distinction should be made between live and inserted statements. But I do think you have to be consistent about it. Hamdan’s lawyers and Justice Stevens weren’t, perhaps out of misunderstanding. Emily Bazelon knows the score and is still trying to have it both ways. Julian Ku also has some thoughts on the debate here.
Israel-Lebanon Roundup:
Krauthammer is must-read.
Richard Cohen's blood is boiling.
Efraim Inbar, one the more lucid Israeli scholars on strategic issues, says Israel needs to be going after Syria.
In a "flying pig" moment, a U.N. official criticizes Hezbollah for hiding behind civilians.
Yalla Ya Nasrallah. An appropriately militant, and quite catchy, Hebrew YouTube music video.
CNN reports that Haifa, targeted by Hezbollah missles, is a "ghost town." The media reports that Haifa is "Israel's third-largest city," but neglects the context that Israel only has five or six large cities (Tel Aviv, Jerusalem, Tiberias, Be'ersheva, Ashdod, and Haifa), where most of the population lives. To get perspective, imagine if CNN was reporting that California is a deserted ghost town.
Hezbollah dating service (humor).
I can't vouch for its authenticity, but this footage shows U.N. ambulances in Gaza giving a lift to Palestinian terrorists in the middle of a battle. But a U.N. force will keep the peace in Lebanon. Right. [A reader tracks this footage back to 2004, but the point still stands.]
As this article among others I've seen suggests, Israel has a substantial fifth column problem with a significant percentage of its Arab population, especially in the Galilee where the populations don't mix much. I don't think Israeli Jews are going to forget all the sympathy expressed for Nasrallah, and the impact on Jewish-Arab relations will be severe. Israeli Jews can forgive Israeli Arabs for sympathizing with their Palestinian relatives living under occupation, but not for sympathizing with Lebanese Shiites who attack Israel gratuitously. Look for more and more Israelis to insist that any future Palestinian state include Israeli Arab towns near the border.
UPDATE: In another flying pig moment, the usually very dovish Ha'aretz is publishing opinion pieces by its writers like this one that outhawk the hawks. In a way, this makes sense, because the doves advocated a withdrawal from South Lebanon, and want further withdrawals of Israel, and if Israel doesn't defend itself vigorously from territory from which it has withdrawn, the doves will lose all credibility.
There's a website out there that allows folks to send pizzas to IDF soldiers. It's a nice gesture, but I asked my wife about it and her opinion was that IDF soldiers are larded with dairy foods, and that they wouldn't be that excited by pizza. Chocolate, on the other hand, would be a different matter. Coincidentally, I just got an email from a reader who points to a website that allows folks to send IDF soldiers chocolate, along with greetings. And it's free.
Thursday, July 27, 2006
Lileks Goes to His HS Reunion.--
James Lileks has an interesting account of attending his high school reunion in Fargo, ND, presumably his 30th. Among the things that Lileks mentions is that: "The band is too loud. Of course, the band is always too loud. Everywhere. It’s what bands do: be too loud."
I attended only one HS reunion, my 5th, in 1975, in Rockford, IL. It was outside in a park, so the band was not too loud. The band, however, was Cheap Trick, which was pretty unusual for a reunion of perhaps 100 people (the band must have been fairly recently formed). Of course, we didn't pay too much attention to them, since talking to friends was the top priority. I remember going up after Cheap Trick's last set and talking to the drummer, Bun E. Carlos (aka Brad Carlson). We had been to a lot of the same concerts in Chicago in the 1960s (not together) and I told him that IMO the band (and his drumming in particular) compared very favorably with some of the groups we saw and used to talk about. He politely thanked me for the compliment.
At my HS in the late 1960s, our regular band for homecoming and senior prom was REO Speedwagon (a Univ. of IL band). At other dances, we had one of the two precursor bands of Cheap Trick. Today, many high schools have DJs.
Using Academic Legal Writing in Seminars:
A professor asked me: Have any professors used Academic Legal Writing, or similar books (such as Fajans & Falk's Scholarly Legal Writing) as classroom teaching material for their seminars; and, if so, can they share their syllabuses or teaching tips? I didn't know the answer -- I know some assign it as reading for their students, but I don't know whether they actually teach from it -- so I thought I'd ask here. If you teach such a class, were a student in such a class, or have heard of such a class, please let me know.
Nobel Laureate Proposes More Sulfur "Pollution" Targeted to Reduce Global Warming.--
A couple months ago, I was looking at the patterns over time of sulfur pollution in the atmosphere and global warming. Sulfur emissions have long been known to reduce surface temperatures, as has been shown after large volcanic eruptions.
I noticed that while sulfur emissions were growing in the two decades lasting into the early 1970s, temperatures were cooling slightly. At the time of the first Earth Day in 1970, this cooling led some academics to predict a new Ice Age (though even in 1970, other researchers were worried about global warming because of the longer trend). In response to concerns over sulfur pollution and the acid rain it caused, the U.S. and other countries cut back sulfur emissions substantially, which then corresponded with an increase in temperature.
This led me to wonder about a possible contribution (however small) of pollution control to global warming. It also led me to concoct the goofy idea that perhaps introducing sulfur into the atmosphere could be considered as a way to cut down global temperature increases. Because my ignorance in environmental matters is considerable and my idea was based in part on what might have been a random correlation, I thought that my idea was too strange even to float on this blog.
Then today I saw a news article that reported on a new academic proposal to inject sulfur into the stratosphere. Apparently, the idea of using sulfur to reduce global warming has been kicked around for some years, though I hadn't heard of it.
The author of the paper in the scholarly journal Climatic Change is Nobel laureate Paul Crutzen. I was able to download the paper from this site, but that may have been because of my university's subscription to the journal.
LiveScience has the story (tip to RawStory):
One way to curb global warming is to purposely shoot sulfur into the atmosphere, a scientist suggested today.
The burning of fossil fuels releases carbon dioxide, a greenhouse gas, into the atmosphere. It also releases sulfur that cools the planet by reflecting solar radiation away from Earth.
Most researchers say the warming effect has been winning in recent decades.
Injecting sulfur into the [stratosphere, which is about 9-31 miles above the surface] ... would reflect more sunlight back to space and offset greenhouse gas warming, according to Nobel laureate Paul Crutzen from the Max Planck Institute for Chemistry in Germany and the Scripps Institution of Oceanography, University of California at San Diego.
Crutzen suggests carrying sulfur into the atmosphere via balloons [or] using artillery guns to release it, where the particles would stay for up to two years. The results could be seen in six months.
Nature does something like this naturally.
When Mount Pinatubo erupted in the Philippines in 1991, millions of tons of sulfur [were] injected into the atmosphere, enhancing reflectivity and cooling the Earth’s surface by an average of 0.9 degrees Fahrenheit in the year following the eruption.
Crutzen favors Kyoto and restrictions on greenhouse gases as the best approach, but believes that injecting sulfur may be easier to achieve politically. He also claims that injecting sulfur directly into the stratosphere would lead to many fewer health problems to humans than allowing more sulfur fuel burning on the surface of the planet.
Lawtopic:
The UCLA Law Library and I have put together http://www.lawtopic.org, a Web-based clearinghouse for student article ideas. The theory is that law professors, lawyers, law clerks, and judges would submit such ideas to this site, and students would pick up those ideas.
Why would someone want to submit? A few thoughts:
Law professors often run across article ideas that they don't want to write about themselves. (The topics may be ambitious enough for a student but not for the professor, or the professor may be tired of writing in this field, or the topic may be outside the professor's field.) They might contribute the idea to students just because they want to help. What's more, all I ask is a few paragraphs, which is to say five minutes of the professor's time. Law professors want to increase the impact of the articles we write. One way to do this is to have others write articles that build on the professor's work. Many of our articles set forth proposals that can apply to problems beyond the one that they specifically address. Many others identify collateral problems that are related to the issue that we’re discussing. Our work often raises more questions than it answers; it's good if others answer those questions, and cite us in the process. Lawyers -- whether in private practice, in government service, or at public interest organizations -- often run across issues that (a) are of recurring importance to them and their clients, (b) are unresolved by the current case law, (c) are meaty enough to justify a student article, and (d) haven’t been sufficiently discussed in the treatises or the law reviews. The lawyers are unlikely to take the time to themselves write the scholarly article; why not suggest it to students? The same goes for judges and law clerks; if they see an issue that's of recurring importance, they can help both the legal system generally and the judiciary in particular by stimulating good scholarship on the subject. And if you want to keep the suggestion anonymous, we let you do that.
So if you're a professor, lawyer, judge, or law clerk, just go to this page, click on "Submit," and fill out the form we give you. More detail is obviously better, but beggars can't be choosers. We’ll also let you indicate whether you (1) are willing to discuss the topic with students who want to write about it, (2) don’t want to be bothered but are still willing to see your name given as the source of the idea, or (3) would rather submit the topic anonymously. You'll be helping students, you'll be helping the legal profession more broadly, and you may also be helping yourself.
A few details:
1. We'd like to get submissions from legal professionals, or (in rare circumstances) nonlawyers who still know the literature quite well (e.g., scholars in allied fields). It's not enough that the topic be important; it also has to be relatively uncovered by the existing scholarship, and manageable for a law student, two things that nonlawyers tend not to be able to evaluate well.
2. Students who get a topic from the database do run the risk that other students might be writing on the same topic that they choose. But that's a risk with any topic; a single other student note on the subject (or even two or three) is unlikely to preempt your own note, since students tend to have very different views; the chances that a student will have selected this particular topic aren't that high; and the risk isn't something we can do much about, since we can't just let student authors withdraw, on their own say-so, the idea that they've chosen to work on.
3. I tried promoting this site about four years ago, and got several dozen serious submissions; but unfortunately I didn't promote the site as well as I should have, so it wasn't heavily used. I've therefore archived those submissions and removed them from the database, since there's a substantial risk that many are now obsolete. I'm hoping that this pass will produce more submissions, and more use by students.
4. If you think this is a good idea, please promote it on your blog, especially if it's read by law professors, lawyers, judges, law clerks, or law students. You'll be doing your readers, and others, a service.
Foreign Citizens as Judicial Clerks:
Every year, a few of our top students are foreign citizens. Can they apply for federal judicial clerkships?
The answer it turns out, is generally yes, if they're from countries that have a qualifying defense treaty (or some other qualifying treaty) with the U.S.: "Argentina, Australia, Bahamas, Belgium, Bolivia, Brazil, Bulgaria, Canada, Chile, Colombia, Costa Rica, Cuba (as a signatory of the Rio Treaty in 1947), Czech Republic, Denmark, Dominican Republic, Ecuador, El Salvador, Estonia, France, Germany, Greece, Guatemala, Haiti, Honduras, Hungary, Iceland, Italy, Japan, Korea (Republic of), Latvia, Lithuania, Luxembourg, Netherlands, New Zealand, Nicaragua, Norway, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain, Thailand, Trinidad and Tobago, Turkey, United Kingdom, Uruguay, and Venezuela." They may need to upgrade their education visa (if that's what they have) to a temporary work visa, but apparently that's not that hard to do, and happens often enough. (I'm speaking here only of federal clerkships; I don't know if some states imposed different rules for their judiciaries.)
Naturally, some judges may prefer to hire U.S. citizens rather than noncitizens, and especially than noncitizens for whom some immigration law hoops would have to be jumped through — to my knowledge they are not restrained from implementing such a preference — but I suspect that many judges don't care much about that. So if you're one of those darned furriners a citizen of one of our fine friends and allies except for Canada, damn it, don't feel reluctant to apply.
UPDATE: Peter Spiro (Opinio Juris) asks a broader policy question about this.
Whom Are You Going To Believe -- The Transcript or Your Lying Ears?
Here's Yesterday's Bushism at Slate:
"And the question is, are we going to be facile enough to change with—will we be nimble enough; will we be able to deal with the circumstances on the ground? And the answer is, yes, we will."—Washington, D.C., July 25, 2006
To Slate's credit, they point to the video of Bush's comments (referring to the material starting at 17:44). I followed the video and noticed that the transcript was incorrect; here's what I wrote to Slate (apologies for the typo in the parenthetical):
Today's column says, [quote omitted] .... Fortunately, it includes a link to the video.
I followed that link, and it turns out the transcription is mistaken. President Bush says:
"And the question is, are we going to be facile enough to change with the c—will we be nimble enough; will we be able to deal with the circumstances on the ground? And the answer is, yes, we will."—Washington, D.C., July 25, 2006.
I understand that you folks might still want to fault Bush for having cut off the word "conditions" (assuming this wasn't just a technical glitch (note that the audio might have some skips, see 18:10-18:16). But at least the transcript ought to be corrected, I think.
To my surprise, here's the message I got back from Slate:
Geoff (Jacob's Bushism researcher) followed up on this, and here's what he has to say.
Bush makes an audible, vague "c" sound in the video, very briefly. But he often makes a lot of sounds that don't end up in the White House transcript. Plenty of "uhs" and "ums" and sometimes real starts and stops to words or thoughts. And part of what the White House does to indicate that he's changing gear abruptly is they use those em dashes between disjointed points. We print their version faithfully and I think we have to. I'm glad we run video so that people can see how these things are actually delivered.
Bush's comment was widely quoted in the form in which it appeared in the White House release. I don't think Volokh would find it fair if we got into the business of "correcting" the White House transcript in this way.
This struck me as pretty remarkable: The video conclusively proves the transcript to be mistaken; whatever one may say about the "c" (and it seems to me clearly audible enough to be included), the transcript clearly omits the word "the." Yet Slate insists on continuing to cite the transcript, which is what I suspect 95+% of its readers will rely on) even though it's wrong.
I don't see how that could be proper. Even if Slate feels uncomfortable departing from the White House transcript — odd, given that it's quite entitled to transcribe the video itself — surely there'd be nothing wrong with noting that the transcript was mistaken. And it seems to me quite wrong to continue to use a transcript that one now knows to be in error.
Naturally, one could conclude that even the corrected version somehow shows a risible error on President Bush's part (assuming there's no video skip); I've never found such slips in extemporaneous speech to be particularly telling, but others may disagree. Still, I'd think a basic rule of journalism would be: When you give a transcript, give an accurate transcript, and if you learn that it's wrong (by comparing it with an actual live recording), correct it, even if you think that the error in the transcript is immaterial. That apparently is not Slate's view, though. All Related Posts (on one page) | Some Related Posts: - Whom Are You Going To Believe -- The Transcript or Your Lying Ears?
- Bushism of the Day:
- My Three Suggestions for Improving Slate:...
- Bushism of the Day:
- Spinsanity criticizes Slate's Bushisms and Kerryisms.
- Latest Bushism:
"Chutzpah":
The classic example of chutzpah is the person who murders his parents, then pleads for mercy because he's an orphan. But how about a government leader that puts a terrorist organization in his cabinet; gives the organization free reign over the southern part of his country from which the organization every so often attacks a neighboring country; and defends the organization as "liberators;"* and then demands reparations from the neighboring country when the terrorist organization starts a war?
[UPDATE: Ha'aretz reports that Israel plans to provide Lebanon with humanitarian aid.]
*Hezbollah allegedly "liberated" Lebanon by driving Israeli forces out of the South. But once the PLO was forced out by Israel in 1983, the only reason Israeli forces had to stay in Lebanon was to protect Israel (and to some extent, Lebanon itself, since Israel could do without a militantly hostile government on its borders) from its only remaining armed enemy in Lebanon, Hezbollah, set up with help from the Iranian secret service in 1982 and later aided by Syria to create a proxy army against Israel. Praising Hezbollah for "liberating" Lebanon is a bit like praising Iran for "liberating" the American hostages it released in 1981--after kidnapping them in 1979.
Will Barry Bonds Be Indicted?
I just finished listening to Game of Shadows: Barry Bonds, BALCO, and the Steroids Scandal that Rocked Professional Sports. It is a fascinating and engrossing book. Based on what I had heard, I was surprised at how much of the book was about doping in elite track and field as much as baseball. The other thing that was amazing to me is how cheap this stuff is--a years supply of steroids seems to price out at about $5,000, a real pittance for a professional athlete.
It is being reported that Bonds is being investigated by a grand jury on charges of tax evasion and perjury. The tax evasion charge stems from Bonds allegations that Bonds failed to report income from the sale of autographed memorabilia and diverted those funds to maintain his mistress, Kimberly Bell. This is a pretty straightforward tax case it seems and I'm going to leave it aside for now.
The interesting issue is whether Bonds is going to be indicted on perjury charges arising from his testimony to the grand jury that he never knowingly took steroids (I'm going to use "steroids" as a shorthand for performance enhancing drugs). The first grand jury terminated without indicting him. I understand that the grand jury is supposed to permit the indictment only if there is probable cause that he committed a crime. But assume that the indictment will come down only if the prosecutors think that they can prove the charge beyond a reasonable doubt, which I understand to be the typical practice in such things. Regardless, what I'm interested in here is whether the prosecutors will be able to prove perjury beyond a reasonable doubt. Now, after reading the book and other coverage, and looking at Bonds with my own eyes, I am comfortable concluding that the preponderance of the evidence supports the conclusion that Bonds took steroids or human growth hormone.
It is being reported that Bonds's trainer Greg Anderson will again refuse to testify before the grand jury about Bonds's supposed steroid use. After reading the book, it seems to me that unless Anderson testifies, the feds very well may not be able to prove beyond a reasonable doubt that Bonds knowingly took steroids.
Those who have also read the book may remember some details that I am forgetting, but from what I recall, there is very little direct evidence--and perhaps none--that could prove that Bonds knowingly took steroids. Based on my recollection, everything he did was done through Anderson, and Anderson alone. Without Anderson's testimony, it is not clear to me that the feds can get him.
Perhaps the strongest evidence that Bonds knowingly took steroids is the complete absurdity of his testimony before the grand jury (assuming the book's report is accurate). Bonds reportedly testified that Anderson would periodically bring him supplements and ointments and he would simply ingest them or rub them on simply to humor Anderson. He claims he never asked what they were and simply assumed they were flaxseed oil and arthritis cream. The book also reports that Bonds told Gary Sheffield (who supposedly also took performance enhancing drugs while training with Bonds) not to ask any questions and to just take what he was given, i.e., that he didn't want to know too much. This whole story seems preposterous, and combined with other circumstantial evidence such as his seemingly bigger head, etc., it seems to me that it is more likely than not that Bonds knowingly took steroids.
But without Anderson's testimony, the direct evidence seems thin (assuming that the book reports all the evidence). All of this is based on the best of my recollection from the book. First, Bonds has never admitted taking performance-enhancing drugs, even under oath with immunity to the grand jury (the basis of the perjury charge). Second, I don't recall anybody in the book specifically stating that they saw Bonds taking what was unquestionably steroids. If I recall correctly, Bell never looked in Bonds's "man bag" to see what was in there. Nor did she ever actually see Anderson give him a shot of steroids--her story was that Bonds and Anderson would go into the bedroom with the man bag and close the door and she simply assumed that Anderson was shooting him with steroids. Third, Bonds never referred to taking steroids, but rather to "the shit" or "the stuff" or "the junk" or similar comments.
Third, nobody other than Anderson ever gave him shots. Fourth, I don't recall Bonds ever directly buying steroids from BALCO. Rather, the standard transaction was that Anderson would buy everything for Bonds and keep track of his protocol. Every once in awhile Bonds would give Anderson 10 or 20 thousand dollars for vaguely defined "personal training" services. So there weren't identifiable Fed Ex packages to athletes (as with most of the athletes). Nor were there money deposits directly from Bonds into Victor Conte's bank account (the head of BALCO) from Bonds, as there were from other athletes. Nor did Bonds regularly appear at BALCO to buy stuff. He rarely communicated with Victor Conte. All of this was handled by Anderson.
Finally, to the best of my recollection, Conte never specifically listed Bonds as one of the athletes to whom he sold performance enhancing drugs, although he named names on other occasions. And Conte has specifically denied selling steroids to Bonds. Again, here's the trick--he has admitted selling steroids to Anderson, so this may be semantic. But he may not have any actual proof that Anderson was buying it for Bonds. The only time that Conte seems to have specifically mentioned Bonds was during a long interview with IRS agents on the day of the BALCO raid, which Conte later called a fabrication. Amazingly, the federal agents didn't record the conversation with Conte, and Conte almost immediately denied the government's description of it. On a related note, this seemed just one of several things that the feds did during the investigation that just seemed completely incompetent to me (such as the way that Conte learned that the feds were searching BALCO's trash).
He did get his urine tested on at least one occasion (Anderson later said the vial should have had his name on it). And Anderson reportedly had some doping calendars at his house. But those alone seem like a stretch.
In short, Bonds let Anderson handle everything, from protocol, to purchase, to shots, and to workouts. Clearly Bonds asked no questions about what Anderson was doing and simply trusted him to handle everything. Equally clearly Bonds knew what Anderson was giving him, especially in light of the physical side effects of the drugs. So common sense seems to suggest that he perjured himself, but a close sifting of the evidence that we know about the evidence seems much less clear. But he seems to have created an almost perfect intermediary in Anderson who could protect him. Every chain of evidence in the case seems to end at Anderson. Although common sense then connects Anderson to Bonds, I can't recall any specific, provable fact that provides that final link.
So if Anderson does not roll over on Bonds, can the prosecutors prove beyond a reasonable doubt that Bonds perjured himself before the grand jury when he denied knowingly taking steroids? For those who have followed the case and/or read the book, remind me of any specific, provable facts that I have forgotten, especially about any specific eyewitness accounts of Bonds getting shots or any paper trail that specifically connects Bonds to performance enhancing drugs, rather than just Anderson. This may explain why the government has so far been unable to indict Bonds without Anderson's testimony, as well as why they are pushing on Anderson so hard to get him to testify. Wihtout Anderson's testimony, I have serious doubts about whether the feds will be able to get Bonds on perjury (although tax evasion should be easier).
Wednesday, July 26, 2006
After Criticizing Jason Leopold, Blogger Seixon Claims Death Threat and Forged Emails.--
1. Background.
Jason Leopold, who used to be a reporter for the L.A. Times and the Dow Jones News Service, has had a bad last few years. His story on former Enron official Thomas White included several plagiarized paragraphs, and its main revelation was an email that Salon editors were unable to verify (the email was suspected to have been fabricated). Salon then retracted Leopold’s article.
When in 2005 Leopold’s book was withdrawn on the eve of release, Howard Kurtz profiled Leopold in the Washington Post:
[A] Salon executive said the source cited by Leopold [in his Enron/White story] as providing the e-mail insisted he had never spoken with Leopold. . . .
The [press] release [sent out for his book] fleshes out a troubled career. Leopold says his grand larceny conviction in 1996 was for stealing compact discs from his employer, a New York music company, and reselling them to record stores. He says he was fired by the Los Angeles Times "for threatening to rip a reporter's head off." Leopold says he quit Dow Jones Newswires in a dispute over his beat but later learned the news service was planning to fire him because of a correction to one of his Enron stories: "Seems I got all of the facts wrong."
Kurtz also suggested an explanation for some of Leopold’s more bizarre actions:
Leopold says he engaged in "lying, cheating and backstabbing," is a former cocaine addict, served time for grand larceny, repeatedly tried to kill himself and has battled mental illness his whole life.
2. Leopold’s TruthOut.Org Stories on Rove and his dispute with blogger Seixon.
In May, 2006 Leopold reported for TruthOut.org that Karl Rove had been indicted by the Grand Jury. In June Leopold reported that the Grand Jury had issued an indictment, Sealed v. Sealed, and that the sealed indictment might have been of Rove (the story was discredited here).
When a DailyKos diarist suggested that Leopold’s story should be taken with “a block of salt,” another diarist from Canada named AnonymousArmy posted a comment on DailyKos that accused Leopold of falling for a fraudulent story from a conspiracy theorist, a posting that triggered a vicious dispute between Leopold, AnonymousArmy, George Gooding (an American living in Norway who blogs as Seixon), and other internet posters and commenters. The blow by blow accounts are quite tedious, but can be reviewed at Seixon here, here, here, here, and here (tip to Instapundit). The misdeeds involve allegations of repeated lying by Leopold, an anonymous posting accusing Gooding of molesting small boys, and a call to Gooding’s parents in the US. Given Leopold's established record of using sock puppets, he can't be ruled out as a suspect in making the anonymous charges of child molestation.
3. Death Threat.
The situation has deteriorated so substantially that today Gooding reports receiving a death threat:
At approximately 7:00 AM Central European Time I received a phone call from a blocked number. The person on the phone told me I had written naughty things on my blog, and then laughed when I asked them who they were.
"You're a dead man."
This is what the person on the line told me right before hanging up.
I called my local authorities and they told me to come down to the station. . . .
I told the police that I believed this person to have been Jason Leopold. Due to the number not showing on my phone, I said I could not be 100% sure who it was. The voice on the phone sounded like Leopold's voice which I have heard on at least one radio interview.
4. Fabricated Emails.
A much less serious, but more interesting, allegation made by Gooding: that Leopold rewrote two emails that Gooding had sent him and two days ago posted them at Think Progress. Think Progress’s site no longer has the emails up, so it appears that Think Progress removed the partially forged emails.
(I want to make clear that I have not verified Gooding’s claims myself. Given Leopold’s past admitted plagiarism, lying, and mental instability, until I see evidence that Gooding is lying, I will discuss Gooding’s email claims on the hypothetical assumption that they are true.)
The emails that Gooding admits writing to Leopold are bluntly worded. They accuse Leopold of unethical behavior and include a sleazy threat to get “high-profile bloggers” to cover the story.
Jason,
I now have you on the record lying. You sent anonymousarmy threatening or intimidating emails:
May 8 - from Boston
June 12 - from your ADSL near Irvine
June 19 - a couple emails sent from the Vance Hotel in Seattle
I have additional emails as well. . . .
You use harrisonshepard@yahoo.com as a fake account.
You seem to have sent a threatening email to Armando of DailyKos.
Now, would you like to start talking?
You know, I bet you know a whole lot about what’s going on with Johnson, the Wilsons, and VIPS. You could really make a name for yourself reporting on all of that. As it is right now, you're just a petty liar going around threatening people who are critical of your fables. . . .
[After reviewing some of the evidence, Gooding continues] I don’t appreciate being lied to Jason, and unlike some of your readers, I’m not a mindless twit.
I suggest you start setting the record straight because what I’ve got
right now is highly embarrassing for you and your friends. I’ve got the
clout to get this covered by high-profile bloggers as well.
Your choice.
I wish you had taken my advice 2 months ago Jason, I really do.
Regards,
George
In his second email, Gooding explains and tries to justify the tone of his first email. (To understand this context and some of the parties, you would have to work through the posts linked above and see some of the abuse that Gooding was subjected to.) The second email starts:
Blackmail?
Jason, normally I would have just published what I have without even asking you to comment. This time I thought I would ask you to comment on this stuff, since this clown Dean went harassing me and my family, so I'm pretty pissed about it. Now, the reason for all this is basically all your fault because you just can't tell the damn truth.
As I said, I don't appreciate when people lie to me.
Compared to some of your emails (or Larry Johnson’s…), mine was pretty G-rated for being “confrontational”.
Look, I'm trying to help you out here.
I have what seems to be some pretty crappy stuff here that you did, and there's really no reason why I shouldn't tell people about that. You chose to do these things, and you have to live with the consequences of your actions. You can't expect to go around threatening people just for criticizing your work and get away with it. Sooner or later someone will have to expose your unethical behavior.
Defaming you would be printing lies about you, which is not what I'm going to do.
You denied sending intimidating emails to this person, and I have proof that you did. It's that simple. . . .
Certainly not pretty!
The first email as rewritten and posted on the web (allegedly by Leopold) omits some of the discussions of Leopold’s misdeeds and adds this language:
I will make lies about you. I can do it. I have my own blog. Tell me all you know about Larry Johnson or me and anonymousarmy will hurt your reputation even more. We’ve already succeeded planting phony stories about you and we will continue to do it until you tell us everything about VIPS and who they are working with. . . .
Either work with me or I will ruin you. . . . I will make up stuff about you and your family. If you do not admit to me that Larry Johnson was your source I will make up things about you and post it on my blog. I will smear you until you commit suicide. I plan to destroy VIPS [Veteran Intelligence Professionals for Sanity] and I will do it with or without your help.
Similar deletions and additions are made to the second email:
You’re damn right it’s blackmail. Johnson must be stopped and you’re the target. I will take you down and I will have the National Review back me up.
What strikes me about these fabricated passages is how ridiculous they are. The real language used by George Gooding was questionable enough, but at least it reads plausibly. The words that Leopold is alleged to have put in Gooding’s mouth are just beyond belief. It appears that Leopold assumes that Gooding is a bad guy who would make things up and that Gooding is trying to ruin Leopold. To prove this, Leopold just puts all these supposed admissions into Gooding’s mouth: “I will ruin you. . . . I will make stuff up about you and your family. . . . I plan to destroy VIPS.” If Gooding’s account is true, in the terms of pop psychology, Leopold appears to be projecting onto others his own willingness to lie, make things up, and embarrass Gooding’s family.
To put Leopold’s behavior in context, consider this June 16, 2006 story by Joe Lauria in the Washington Post:
Leopold says he gets the same rush from breaking a news story that he did from snorting cocaine. To get coke, he lied, cheated and stole. To get his scoops, he has done much the same. As long as it isn't illegal, he told me, he'll do whatever it takes to get a story, especially to nail a corrupt politician or businessman. "A scoop is a scoop," he trumpets in his memoir. "Other journalists all whine about ethics, but that's a load of crap."
Note that these admissions to Lauria occurred in early May of this year. Lauria then goes on to report that Leopold, in researching his Rove indictment story, pretended to be Lauria and gave out Lauria’s cell phone number with one digit off to Rove spokesman, Mark Carallo. Lauria then challenged Leopold on his unethical behavior:
I called Leopold. He gave me a profanity-filled earful, saying that he'd spoken to Corallo four times and that Corallo had called him to denounce the story after it appeared.
When he was done, I asked: "How would Corallo have gotten my phone number, one digit off?"
"Joe, I would never, ever have done something like that," Leopold said defiantly.
In his Washington Post column, Joe Lauria then offers his own brief psychological profile of Leopold:
Leopold is in too many ways a man of his times. These days it is about the reporter, not the story; the actor, not the play; the athlete, not the game. Leopold is a product of a narcissistic culture that has not stopped at journalism's door, a culture facilitated and expanded by the Internet.
In the end, whatever Jason Leopold's future, he got what he appears to be crying out for: attention.
This brings me back to the most disturbing language that Leopold appears to have fabricated and added to George Gooding’s email: “I will smear you until you commit suicide.” That Leopold has a history of mental illness and suicide attempts and now may be imagining his own suicide could be a cry for more than attention. Leopold’s friends and journalistic colleagues should take this talk of suicide quite seriously.
NOTE: Given the psychological issues, threats of litigation, and flame wars in this dispute, I have not turned on comments.
The Ohio Supreme Court's decision in Norwood v. Horney - A Major Victory for Property Rights:
The Ohio Supreme Court's unanimous decision in Norwood v. Horney, issued today, is an important victory for property rights. It is probably the most important judicial decision on eminent domain since Kelo v. City of New London. Perhaps the most significant element of the decision is the fact that the Court went beyond banning "economic development" condemnations of the sort permitted by the U.S. Supreme Court in Kelo, and also suggested that there are state constitutional limitations on the governments' power to condemn property that is designated as "blighted." The Ohio Supreme Court has also become the 11th state supreme court to ban Kelo-style condemnations under its state constitution, a decision which largely negates the shortcomings of Ohio's woefully inadequate post-Kelo "reform" law.
I. Banning Economic Development Takings.
First and most obviously, Norwood bans the condemnation of property for transfer to another private party in order to promote "economic development." The Ohio Supreme Court has now become the eleventh state high court to ban Kelo-style takings under its state constitution, and the second to do so since Kelo was decided (following Oklahoma):
Although we have permitted economic concerns to be considered
in addition to other factors, such as slum clearance, when determining whether
the public-use requirement is sufficient, we have never found economic benefits
alone to be a sufficient public use for a valid taking. We decline to do so now....
We hold that an economic or financial benefit alone is insufficient
to satisfy the public-use requirement of Section 19, Article I [of the Ohio Constitution]. In light of that holding, any taking based solely on financial gain is void as a matter of law and the courts owe no deference to a legislative finding that the proposed taking will provide financial benefit to a community.
Unfortunately, there is an important problem here, because the Ohio Court still permits "economic concerns to be considered in addition to other factors, such as slum clearance, when determining whether the public-use requirement" has been met. If this exception is interpreted broadly, it could greatly undermine the impact of Norwood, since local governments can often cite some "other factor" to justify a condemnation that is in reality undertaken for development purposes. A categorical ban on the "economic development" rationale would have been better. If the "other factors" are sufficient to justify condemnation in their own right, well and good. But it is a mistake to allow otherwise inadequate factors to go through because of claims that the condemnation will also promote development. Hopefully, Ohio courts will interpret the "other factor" exception narrowly.
II. Potentially Limiting Blight Condemnations.
The most unique and original aspect of the Norwood decision is the way in which it may limit "blight" condemnations, as well as those purely for "economic development" purposes.
As I have pointed out in both blog posts (e.g., here), and in my academic work (see here and here), broad definitions of blight of the sort which are all too common in state legislation can undermine a ban on economic development takings by licensing local officials to declare virtually any area blighted, thereby allowing the property there to be condemned. Recent state court decisions have concluded that such areas as Times Square and downtown Las Vegas are "blighted," thereby justifying condemnation of property to build a new heaquarters for the New York Times and new parking lots for politically influential Las Vegas casinos. See Las Vegas Downtown Redev. Agency v. Pappas, 76 P.3d 1 (Nev. 2003) (Las Vegas case); In re W. 41st St. Realty v. N.Y. State Urban Dev. Corp., 744 N.Y.S.2d 121 (N.Y. App. Div. 2002) (Times Square case).
The Norwood decision can help put a stop to such abuses, especially if courts in other states choose to adopt its reasoning. In Norwood, numerous homes in relatively good condition were condemned by a local government under an ordinance that allows condemnatin of property that was in a "slum" area, "blighted," or "deteriorated." Only the third of these ("deterioration") was claimed to be present by the government in the Norwood case. The Ohio Supreme Court refused to permit condemnation under this rationale because the city's definition of "deterioration" would permit condemnation of virtually any property in any neighborhood:
As defined by the Norwood Code, a “deteriorating area” is not the
same as a “slum, blighted or deteriorated area,” the standard typically employed
for a taking. And here, of course, there was no evidence to support a taking under
that standard. To the contrary, the buildings in the neighborhood were generally
in good condition and the owners were not property-tax delinquent...
The Norwood Code sets forth a fairly comprehensive array of
conditions that purport to describe a “deteriorating area,” including those found
by the trial judge in this case: incompatible land uses, nonconforming uses, lack
of adequate parking facilities, faulty street arrangement, obsolete plotting,
diversity of ownership. In addition, the trial court identified the following factors
as supporting the determination that the neighborhood was deteriorating:
increased traffic, dead-end streets that impede public safety vehicles, numerous
curb cuts and driveways, and small front yards. But all of those factors exist in
virtually every urban American neighborhood. Because the Norwood Code’s
definition of a deteriorating area describes almost any city, it is suspect.
(emphasis added).
Although Norwood addressed only the issue of condemnations of "deteriorated" areas rather than "blighted" ones, the exact same reasons why the Ohio Supreme Court rejected the City of Norwood's "deterioration" rationale can also be used to strike down overly broad definitions of blight.
Up until now, no other state supreme court has confronted the contradiction between banning "economic development" takings and permitting blight condemnations under a virtually limitless definition of "blight." Hopefully, other states will resolve this issue in a way similar to Ohio's approach.
III. Connection to Post-Kelo Legislation.
The Norwood decision is also noteworthy because Ohio recently enacted one of the least effective of all post-Kelo reform statutes. As I explain in greater detail in a forthcoming article (pp. 69-71), the new Ohio law accomplishes almost nothing. The centerpiece of the law is the establishment of a commission to consider eminent domain reform - a commission stacked with representatives of interest groups that benefit from economic development takings.
The conjunction of the Norwood decision and Ohio's virtually useless post-Kelo law emphasizes the need to recognize that we cannot rely exclusively on the political process to protect constitutional property rights, a point I previously stressed here and here. Sometimes, judicial intervention is also needed.
CONFLICT OF INTEREST WATCH: As noted here, I once briefly worked for the Institute for Justice, the public interest law firm that represented the property owners in Norwood and Kelo, and have written several pro bono amicus briefs for them.
UPDATE: I should have also noted the significance of the Ohio Supreme Court's holding that "Courts shall apply heightened scrutiny when reviewing statutes that regulate the use of eminent domain powers." This potentially could limit ALL uses of eminent domain, not just those that transfer the condemned property to private parties (as in Kelo and other "economic development" cases). Two other states (Michigan and Delaware) apply heightened scrutiny to condemnations that greatly benefit particular private interests, but Ohio will be the first state to apply it all uses of eminent domain. It is not yet clear exactly how demanding Ohio's "heightened scrutiny" doctrine is going to be, but it certainly strengthens protection for property owners against eminent domain abuse.
UPDATE #2: A small correction: the Norwood ordinance ultimately at issue in the decision is not the one that permits condemnations of blighted, slum, or deteriorated areas, but a similar one that allows the taking of "deteriorating" property. I missed this distinction in my first reading of the opinion, and thank Institute for Justice attorney Dana Berliner for correcting me.
Credentials and Interdisciplinary Work:
A commenter on an earlier thread faults me for citing Prof. Browne's work as a counterpoint to Prof. Barres':
ev loses significant credibility with me when he attempts to "balance" an article about a scientific subject, written by an expert in the field and published in nature, with an article by a law professor with no scientific expertise in a (presumably student-edited) law review. granted, the nature article was not peer-reviewed either, but the author at least had the credentials and experience to know what he was talking about.
This highlights, I think, an important and oft-forgotten point: While laypeople understandably care about experts' credentials — we lack the talent, time, or both to evaluate the underlying data ourselves — it helps to scrutinize credentials with some care, especially since scholars often cross disciplinary boundaries.
Prof. Browne, for instance, is a law professor who has been trained as a lawyer; but his legal interests have led him to the interdisciplinary field of law and evolutionary biology. Besides law review articles, he has also written two books published by university presses, Divided Labours: An Evolutionary View of Women at Work, in Yale University Press's Darwinism Today series, and Biology at Work: Rethinking Sexual Equality, in Rutgers University Press's Series in Human Evolution. I haven't read the books — I've only looked at Prof. Browne's shorter work — but my sense is that writing such books (1) is not at all outside the competence of an intelligent law professor with a job that permits him to do interdisciplinary work, and (2) will give even someone who doesn't have a Ph.D. in psychology or biology, and who doesn't have an appointment in the psychology or biology department, a pretty broad and deep knowledge of the experimental literature. I'd take quite seriously what Judge Posner has to say about economics, though he's trained as a lawyer rather than an economist; I'm sure many economists disagree with much of what he says, but his opinions are nonetheless worth considering despite his academic background. Likewise with Prof. Browne.
Prof. Barres is indeed trained as a neurobiologist, and is a Professor of Neurobiology. He has written extensively on neuorobiology, and neurobiologists are likely to find work on genetics and cognitive psychology to be quite accessible. On the other hand, Prof. Barres' list of publications does not seem to include any scholarly work on gender differences, unless I've missed some, and setting aside any pieces too recent to include (such as his Nature essay).
It is possible that Prof. Barres has read as deeply and broadly as Prof. Browne on the subject, or even more deeply and broadly. It is possible that he has read less. Whether or not Prof. Barres has studied this field more than Prof. Browne has, Prof. Browne's books on the subject suggest that Prof. Browne has read enough to be taken seriously. In any event, I would not casually dismiss either Prof. Barres' opinion or Prof. Browne's, regardless of the departments in which they teach, the degrees that they have, or the nature of the journal in which they published their shorter work.
The hardest day of the cruelest month:
For gay-marriage litigants, July has been the cruelest month. Prior to today’s 5-4 Washington Supreme Court decision in Andersen v. King County, there were two substantive state marriage decisions against them (New York and Connecticut), one quasi-substantive federal decision against them (the 8th Circuit, whose broad dicta went beyond the state constitutional ban at issue), and three procedural decisions against them upholding the propriety of ballot initiatives (Massachusetts, Tennessee, and Georgia).
But this may turn out to be the hardest day of all. Andersen is the most careful, closely reasoned, and comprehensive judicial opinion to date rejecting constitutional claims to gay marriage. It is much better, as a matter of conventional legal analysis and craftsmanship, than the New York Court of Appeals decision in Hernandez v. Robles rejecting gay-marriage claims a couple of weeks ago. Since the principles and arguments on this issue from state-to-state, and even in the federal courts, are not that different, the Washington decision will deserve close attention from other courts. Among the courts next to consider claims for gay marriage, the New Jersey Supreme Court in particular should grapple with Andersen.
There is a bright spot in Andersen for gay couples. The court practically invites future litigation and legislation resulting in a Vermont-style civil unions resolution, granting the benefits and protections of marriage to gay couples without the status of “marriage.” This seems the likely direction for future litigation and legislative action in Washington and elsewhere. I'll say more about this below.
Since I addressed many of the constitutional issues in earlier posts reacting to Hernandez v. Robles I won’t go over all that territory again. Instead, I’ll address here some of the distinctive features of the Andersen opinion.
(1) While there was some speculation about possible political motivations for the 17-month period to issue the opinion, it seems in retrospect that the justices were simply taking the time to be very careful on an opinion they knew history would judge them for: writing and re-writing sensitive passages, negotiating with each other, trading drafts among the chambers, waiting to see how other courts might come out. The close result, and the opening paragraphs in particular, chiding not just the dissents for the usual abandonment of legal princi |
