I think this means the Ninth Circuit is blegging.

Rather an unusual order in U.S. v. Canty and U.S. v. Zavala:

The court invites supplemental briefs by the parties addressing some or all of the following questions on the role of the United States Sentencing Guidelines in a district court’s sentencing decision after United States v. Booker, 543 U.S. 220 (2005):

1. Do we have jurisdiction to review appeals of within-Guidelines range sentences?

2. If we have jurisdiction to review within-Guidelines range sentences, are such sentences entitled to a presumption of reasonableness, or should we review such sentences no differently than we review outside-Guidelines range sentences? If within-Guidelines range sentences are entitled to a presumption of reasonableness, is this presumption conclusive? Rebuttable? If rebuttable, how can such a presumption be rebutted?

3. How should we review a post-Booker sentence for reasonableness? Do we review only whether the district court complied with Booker’s mandate to consider the 18 U.S.C. § 3553(a) factors? If so, is this review de novo? Do we independently review the sentence imposed for reasonableness? If so, how do we determine whether a sentence is reasonable? What legal and factual matters, if any, must we consider? Is this review for abuse of discretion? Are factual findings decided by the district court reviewed for clear error, abuse of discretion, or on some other standard of review? Does it matter whether the findings are pertinent to the calculation of the advisory Guidelines range or pertinent to the application of the other 18 U.S.C. § 3553(a) factors?

4. What procedure is a district court required to follow in sentencing a defendant within the advisory Guidelines range? In particular, what should be the district court’s duty, if any, to articulate its consideration of the section 18 U.S.C. § 3553(a) factors?

5. If distinct from the procedure for within-Guidelines range sentences, what procedure is a district court required to follow in sentencing a defendant above or below the advisory Guidelines range?

6. What weight does the advisory Guidelines range have, in relation to other 18 U.S.C. § 3553(a) factors? In conducting a sentencing proceeding, may a district judge announce that he will impose a sentence within the advisory Guidelines range unless the parties present compelling reasons for imposing a sentence outside of that range? On review, should we determine whether the district court has given the advisory Guidelines range the appropriate weight, and if so, how?

Briefs responding to this order shall be filed no later than September 15, 2006. Any person or entity wishing to file a brief as an amicus curiae in response to this order is granted leave to do so pursuant to Fed. R. App. P. 29(a).

The last sentence essentially means that the Circuit really does want more amicus briefs than usual in this case.

For more on the cases, see Sentencing Law and Policy (of course).

A commenter on the Conversion to Christianity Earns Death Threats, Risk of Incarceration thread agrees that the story is quite troubling ("As to the post itself I am horrified at this practice," but goes on to ask:

However, I do have to wonder what purpose is served by posting this particular example in such detail. Human rights abuses suck but they are happening all the time. Why pick this one about islam rather than the jailing of Chinese dissidents or oppressive actions by other governments? (Do third world christian nations behave differently or does the influence of first world churches keep them in check?)

If the poster feels that this sort of inhuman treatment goes underreported/uncondemned out of fear of offending religious sensibilities then, assuming his assesment is correct, I share his goals. However, I am skeptical of the appropriatness of this particular incident to accomplish this purpose. Jailing people for conversion to christianity is clearly no worse than jailing them for conversion to any other religion, advocacy of heretical islamic views or violation of any other religious law. Choosing an example where the individual wishes to convert to christianity when the mention of prison camps in the article suggests a wealth of other examples seems designed to inflame a christian audience.

I realize that you probably didn't run across any of the other stories so I don't want to cast blame. However, I do feel that the choice of examples is unfortunate and more good could be done with examples that don't encourage people to view this as a religious conflict.

Another reader likewise asks (with a good deal of detailed discussion following), "What is the purpose of picking up stories about the horrors of repressive Islamic regimes?"

A few thoughts:

1. "This" in the sense of "this story" does involve a religious conflict. "This" in the sense of the broader issue of "jailing ... for conversion to any other religion [or] advocacy of hereitcal islamic views" also involves religious conflicts, albeit ones with other religions.

2. I'm quite sure that the Chinese government represses people's human rights, too; I don't blog much about Chinese repression because I don't get a lot of e-mails about them, and at least some of those stories are complex enough that it's hard to opine on them without investing more time than I have to invest. This story struck me as pretty simple; there'll always be a bias in favor of such stories, especially among part-time writers (though I suspect among full-time writers as well).

3. While some balance of perspective is valuable, insisting that people not complain about the misbehavior of one country (or ideological movement) unless they somehow evenly calibrate their condemnation among all countries, in proportion to the countries' actual misconduct, is a recipe for total silence. Seems to me better that some people point out the misbehavior of some groups and others of other groups (depending on the speakers' knowledge base, interests, and so on), than that no-one point out anything out of an attempt at pure balance.

4. I agree that if you fault country X for doing something and defend country Y for doing the same thing, you could be faulted for inconsistency. Likewise, if X and Y are adversaries, and you fault X for certain behavior in the conflict without noting Y's misbehavior, you can be faulted for partiality. And if you fault country or movement X harshly for doing something that lots of other comparable countries do, without noting that this misbehavior is very common, you can be faulted for lack of perspective. Yet I don't think that any of these problems are present here.

5. The sad fact is that, as best I can tell, many Islamic regimes are indeed quite repressive of religious freedom, as well as of other freedoms. That's important for us to know, and to know in some detail.

6. However, I'm happy to say that if anyone can point me to a non-Islamic country in which religious conversion leads to private death threats, and threat of governmentally authorized incarceration, I'll be glad to note that as well. (I've certainly noted what seem to me improper religious discrimination in my own country, albeit a less egregious discrimination than we're discussing here.) I'm interested in such matters, and it's always good to get interesting blogfodder.

But no need to tell me that revealing accurate information will somehow "inflame a Christian audience," or suggest that it's somehow not "appropriate"; that's not going to go far with me.

UPDATE: The second commenter I quote above posts a follow-up comment, which asks, in part, "Why this story now?"

Well, because a former student (actually, a very liberal former student) e-mailed me this story, and this story was published -- in the New York Times, mind you -- now. What was I supposed to do? Not post it? Sit on it for months until someone sent me some story about a Christian country doing the same to converts to Islam (a story that might never come)? Sit on it until I could spend a week researching all the ways in which a wide range of countries violate a wide range of rights and then post a paper on the subject?

The commenter also writes, "I think one or two of your points above erect strawmen. I don't think anyone -- at least, not anyone that need be taken seriously -- is trying to 'insist that people not complain' about one country or movement unless it is done evenly according to some schedule." I wonder about that. It's hard to figure out what's in my commenters' minds, but the comments as I read them point precisely in that direction: They're suggesting that there was something wrong with posting about the Malaysian government's misbehavior, apparently because I don't comment enough on misbehavior of other governments and therefore because my post somehow paints an unfairly grim picture of Islamic law. Isn't that an argument that people shouldn't be complaining about Islamic misconduct unless one somehow finds some matching set of misconduct by non-Islamic countries that one can serve up as some supposed balance?

In a recent exchange with an editor, I had to choose between "What matters is the [singular version of phrase X]" and "What matter are the [plural version of phrase X]." My first reaction to the latter option was, "Huh, sounds strange."

Now sometimes sounding strange is good: For instance, it's often good to use less familiar (but apt) imagery -- imagery which is "strange" in the sense of less familiar -- than familiar and therefore cliche imagery. The fresh imagery is more likely to capture the reader's attention, and to convey the message.

But you don't want to focus the reader's attention on a routine transition like "What matters is"; it's therefore best, I think, to phrase such routine items in routine ways -- to use common versions, not strange ones. (Other writers may legitimately disagree, but that was my judgment for my piece.) Yet was I right that "what matter are" is much less idiomatic than "what matters is"?

Google to the rescue: Google reported for me 400,000 results for "what matters is the," 35,000 for "what matters are the" (which I think is grammatical, but for reasons I don't want to get into here), and fewer than 1000 for "what matter are the." Matter settled.

The New York Times reports:

[Malaysian] Lina Joy ... converted from Islam to Christianity eight years ago and since then has endured extraordinary hurdles in her desire to marry the man in her life.... [S]he is now in hiding after death threats from Islamic extremists, who accuse her of being an apostate.

Five years ago she started proceedings in the civil courts to seek the right to marry her Christian fiancé and have children. Because she had renounced her Muslim faith, Ms. Joy, 42, argued, Malaysia’s Islamic Shariah courts, which control such matters as marriage, property and divorce, did not have jurisdiction over her.

In a series of decisions, the civil courts ruled against her....

About 60 percent of Malaysia’s 26 million people are Muslim, 20 percent are Buddhist, nearly 10 percent are Christian and 6 percent Hindu....

In rulings in her case, civil courts said Malays could not renounce Islam because the Constitution defined Malays to be Muslims.

They also ruled that a request to change her identity card from Muslim to Christian had to be decided by the Shariah courts. There she would be considered an apostate, and if she did not repent she surely would be sentenced to several years in an Islamic center for rehabilitation....

Last month, Prime Minister Badawi appeared to side with the Islamists when he ordered that forums organized around the country to discuss religious freedom must stop. The forums, run by a group called Article 11, named after the section of the Constitution that says Malaysians are free to choose their religion, were disrupted on several occasions by Islamic protesters....

“Church members know us as who we are, and the outside world knows us as we were,” [another convert] said. He was fearful, he said, that if his conversion became public the religious authorities would come after him, and he could be sentenced to a religious rehabilitation camp.

One such place, hidden in the forest at Ulu Yam Baru, 20 miles outside the capital, is ringed like a prison by barbed wire, with dormitories protected by a second ring of barbed wire. Outside a sign says, “House of Faith,” and inside the inmates spend much of their time studying Islam....

Thanks to Cynthia Reed for the pointer.

The U.K. Daily Mail reports that "Pope Benedict XVI has sacked his chief astronomer after a series of public clashes over the theory of evolution":

Although the Vatican did not give reasons for Father Coyne’s replacement, sources close to the Holy See say that Benedict would have been unhappy with the priest’s public opposition to intelligent design theory.

Father Coyne’s most notable intervention came after Cardinal Christoph Schonborn of Vienna, a former student of the Pope, put the case for intelligent design in an article in the New York Times in July last year.

The cardinal, responding to an explosive debate on evolution in the US, had argued that Darwinian concepts of "random variation and natural selection" were incompatible with the Catholic belief that there is a divine purpose and design to nature.

The cardinal also said that the evolution had become an atheistic ideological dogma that was being used against the Church.

The views of Cardinal Schonborn, one of the authors of the 1992 Catechism of the Catholic Church, were criticised just a month later in an article written by Father Coyne for the London-based Tablet magazine.

God "is not constantly intervening, but rather allows, participates, loves," Fr Coyne wrote, adding: "Religious believers must move away from the notion of a dictator or designer God, a Newtonian God who made the universe as a watch that ticks along regularly...."

I don't have to add much to the story, but if you're interested in reading the astronomer's article that the story mentions -- an article that, as I read it, is much more about theology than about science as such -- I found it here.

A commenter on my Income Tax and the Sanctity of Property in Our Constitutional System writes:

You are ALL missing the point. Compensation for a tortious wrong is not income. If it were taxed, then you would not be made whole. Let's say someone negligently chops off your arm and then pays you a settlement that perfectly compensates you for the loss of your arm. There is no income. There is no gain. The money is just compensation for the loss of your arm. That money = your arm. Because the government cannot take a random piece of your arm, the government cannot tax your compensatory judgment. No level of American government has the right to just hack off a little piece of your arm. All of you on this thread are absolutely wrong and you should be ashamed. This decision is absolutely right.

Let's follow the flow of the argument. The argument begins with a sensible claim about the tort system: If compensation for a tortious wrong were taxed, then you wouldn't be made whole. To give a concrete example, say I have $100,000 in assets; I pay no income tax on that capital. Say then that someone steals the $100,000, and I get it back from him, whether through litigation or otherwise -- I'm no better off than I was before the theft, so it's hard to see why I should end up just with just $60,000, after the state and federal governments get their income tax cut. If we treat personal injury causing $100,000 in pain and suffering as similar to the theft of the $100,000, the principle of tort law is to try to put me back as much as possible into my pre-injury condition, by awarding me $100,000 in damages. Taxing those $100,000 would leave me worse off than I would have been but for the injury (assuming that $100,000 is indeed the compensation that leaves me as well off as before, and thus accepting the theory that the money compensates me for pain). Allowing this money to be taxed would thus undermine the goals of tax law.

Then the argument continues, appealing to the logic of income tax law and not just tort law: "There is no income. There is no gain. The money is just compensation for the loss of your arm." Because the income tax generally taxes income, the argument goes -- stuff you get on top of what you had before -- and because the compensation doesn't really give you more than you had before, taxing the compensation is inconsistent with the underlying principles of income tax law as well as of tort law. So far so good.

And then the argument abruptly plummets from sensible, albeit necessarily cursory, policy argument into sheer formalistic zaniness: "That money = your arm. Because the government cannot take a random piece of your arm, the government cannot tax your compensatory judgment. No level of American government has the right to just hack off a little piece of your arm. All of you on this thread are absolutely wrong and you should be ashamed. This decision is absolutely right."

"That money = your arm"?! Equals? Not just that money compensates you for the loss of your arm, but actually equals it?

That statement is simply and obviously false. It may represent a metaphor at the heart of tort law, but metaphors aren't reality. They may help us understand reality, because in some ways they represent reality. But in other ways they depart from reality (that's why they're metaphors).

"That money = your arm" may make sense for the purposes of understanding how tort law (or even tax law) often treats compensation for personal injuries. But you can't use it with arguments about the law or morality of dismemberment, because those arguments work only with actual arms, not just with metaphorical equivalents of arms. After all, if "that money = your arm," does it mean that if you get the money and then go bankrupt, your creditors can't recover part of that money, given that creditors can't physically dismember you? If "that money = your arm," and then you buy a house with that money, does it mean that "that house = that money = your arm," and you can't be required to pay property taxes on that house? I'd say "that way lies madness," but the madness actually lies at the very first step, which is treating "that money = your arm" as reality rather than metaphor.

Now this is an extreme sort of error; hardly anyone goes quite this far in believing his own metaphors. But I do think it's a helpful illustration of a general problem.

I'm often a formalist in the sense that I generally think that formal legal characterizations are often worth using. That something is called "speech" should influence the way we treat it, and even if we call other things than speech (e.g., waving a flag, wearing a cross, using sign language) "speech," once this characterization is accepted it may make sense to use it in a broad range of cases. But we should never forget that these labels are metaphorical, otherwise figurative, or just generally imprecise. We should never forget that in law, "X = Y" is often just a shorthand for "X is like Y in certain important ways" or "X should be treated like Y in certain important way," that in certain other ways X and Y can remain quite different, and that therefore treating them as genuinely equal is a recipe for massive error.

A classic legal fiction is said to be that for certain old English legal purposes the island of Minorca was treated as being "located within the parish of Mary-le-Bow in the ward of Cheap in the city of London." Yet even if that, within the English legal system, was a perfectly sensible way of dealing with certain kinds of procedural matters, you shouldn't try to walk there from the Houses of Parliament. "Think things not words," as Justice Oliver Wendell Holmes admonished, "or at least ... constantly translate [y]our words into the facts for which they stand, if [you] are to keep to the real and the true."

As Orin points out, the D.C. Circuit has just held that a small part of the federal tax code exceeds Congress's power to lay income taxes under the Sixteenth Amendment. The tax code, the court held, does tax as income compensatory damages for emotional distress and loss of reputation. But such damages aren't "income" for purposes of the Sixteenth Amendment ("The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration"), because they are not a gain but merely a compensation for loss; therefore, the court held, they can't constitutionally be subjected to the income tax.

I don't have much to say about the opinion but one thing did strike me. The court writes:

The Sixteenth Amendment simply does not authorize the Congress to tax as "incomes" every sort of revenue a taxpayer may receive.... [B]ecause the "the power to tax involves the power to destroy," it would not be consistent with our constitutional government, and the sanctity of property in our system, merely to rely upon the legislature to decide what constitutes income.

Yet "the sanctity of property in our system" does not generally protect people from taxes on their capital. Not only may the federal government impose taxes on transactions involving property (such as importation, gift, or disposition on death), but state governments are free to tax property in a wide range of ways, including by imposing a percentage tax on all possessed property.

The state may, for instance, impose a percentage tax on all real estate; it may do the same for personal property, though my understanding is that administrative (and political) problems usually prevent that from happening; and I think it would be quite free to impose a tax on compensatory damage awards as well. States have long taxes real estate, to my knowledge from before the Constitution, though a property tax is often thought of as a quintessential direct non-income tax that the federal government may not impose. There's just nothing in the federal Constitution, or to my knowledge in most state constitutions, that prohibits states from laying taxes either on capital or on compensation for loss. Our system just doesn't view such taxes on property as inconsistent with "the sanctity of property."

Rather, the limits on the federal income tax are limits specific to the federal government — limits that originated in the Direct Tax Clause and were then made much looser by the Sixteenth Amendment. They stem from concerns about federal power, not about government power more generally. And they thus have to do not with "the sanctity of property" as such, but rather with what only states and not the federal government should be able to do as to that property.

I thought I'd repost a question I asked four years ago, before we had comments: Why is Jesus a common name in Spanish-language cultures, but to my knowledge no other European-language cultures? (I don't know about Portuguese-language cultures; perhaps they're like the Spanish-language.)

It can't just be Christianity, or even Catholicism: I've never heard of Frenchmen, Italians, Poles, or Irishmen with that name. There's nothing theologically wrong with either approach, I'm sure -- but why is it that one huge part of Christendom embraces the name Jesus for its sons, while another rejects it almost entirely?

A commenter to the last post expressed doubt that Jews can be considered an ethnic group. Here's what I wrote about this in December 2004:

Jews are an ethnic group, though Judaism is also a religion. People can be ethnically Jewish though irreligious -- many Jews are.

[This has been the effective definition of "Jew" in many past incidents of anti-Semitism. M]any anti-Semites hate Jews without regard to their religion; the Nazis went after the irreligious Jews as well as the devout Jews, and so did the Soviets. Much anti-Semitic propaganda focuses on Jews' supposed ethnic or cultural traits, not their religion. Nor is this just an anti-Semitic view; as I understand mainstream Jewish religious teachings, someone whose mother is Jewish, which is to say generally someone who is ethnically Jewish, is "Jewish" for purposes of Judaism even if he is an atheist.

I realize that there's some fuzziness about the definition of "ethnicity" (it usually turns on people's descent, but descendants of converts to Judaism may often be treated as ethnically Jewish, just as descendants of people who moved to Ireland not long ago may often be treated as ethnically Irish -- especially when the descendants are now not in Ireland in any more, and especially if they characterize themselves as Irish). [But s]uffice it to say that an ethnic group is a group that's usually linked by descent and culture, and that perceived itself and is perceived by others as an ethnic group. We need not delve further into this here, except to say that Jews are often treated as an ethnic group much as are Irish, Poles, Gypsies, and so on.

I prefer to use the term "ethnicity" rather than "race" to refer to Jews. Historically, however, the term "race" has also included what we now think of as ethnicity, so Jews, Italians, Irish, and such were sometimes called "races" rather than just ethnic groups. [Likewise, some old U.S. statutes and some more recent foreign statutes have been understood as using "race" to include "ethnicity."]

A friend of mine who lives and works in Singapore mentioned to me David Marshall, a leading Singaporean political leader and apparently one of the Founding Fathers of Singaporean independence -- and, it turns out, a Jew, of Iraqi extraction of all things.

My tentative survey of Marshall's career suggests that I'd probably have disagreed with many of his positions, though I'd probably have agreed with others. I'm not trying to praise him, or to claim joy in my ethnic kinship with him. But it is striking just how politically active -- and often politically successful -- Jews seem to be, even in places where they're a tiny minority, and where you'd think their alien status might keep many voters from connecting with them and trusting them.

A new movement, and it's about time -- the Caps Lock key does very little good, and plenty of accidental harm.

My wife and I saw the movie The Illusionist last night, and much enjoyed it. We liked both the script and the acting, though Paul Giamatti seemed particularly good (or at least his character was particularly interesting).

An interesting detail: The Illusionist was born with the last name Abramowitz, which pretty clearly marks him as Jewish; in the Austro-Hungary of the time, this would makes the Duchess's attraction to him especially scandalous, yet the movie (as best I recall) doesn't do anything with it. I suspect that the character's name was just preserved from the short story (which I haven't read, but which I'm told touches on the character's Jewishness more); and it's a slight enough reference that I doubt that it's intended as a background item for people to note even without further development -- my guess is that only a tiny fraction of the audience will note it. Still, I wonder whether there was any extra twist on this that I was missing, or whether this was just the gun in the first act that never went off in the third.

Note: I'd bet that the comments will have plenty of spoilers. (Nothing above really qualifies, since it's hardly a surprise that Abramowitz and the Duchess will be involved in some way.)