|
|
Saturday, September 9, 2006
"Commitment-Phobic":
I want to express some skepticism about this term, when used to describe men who don't want to marry. (I realize this common usage was quite tangential to David's post; David's post simply reminded me of my objections.)
Commitment is scary, and should be scary. It indeed has all sorts of benefits, as well as risks — I should note that I'm happily married. But "phobia," which generally means irrational fear, is a generally unsound term to describe normal, reasonable fear of making what could be a very emotionally (and financially) costly mistake.
Nor am I just fighting the term's etymology here. As best I can tell, "commitment-phobic" is something of a pejorative in part because it still carries the meaning, or at least the connotation, of irrational fear rather than perfectly reasonable fear — or even perfectly reasonable quaking-in-your-boots terror.
Jonathan Rauch on the Bush Presidency:
Not a positive evaluation at all, and from someone whom I've generally found to be quite fair-minded, thoughtful, and serious about the war on terror. I'm not sure whether Rauch is right — among other things, the article doesn't discuss how much credit Bush should get for the lack of other major attacks on American soil since 9/11, something that I suspect that few people expected in late 2001. But it seems an article that's much worth reading, whatever one's views of the Administration. Rauch's criticism of the Administration's actions on searches, detentions, and interrogations seems especially important (again, whether you ultimately agree with it or not), partly because it acknowledges that fighting terrorists may in fact call for searches, detentions, and interrogations beyond those we would normally endorse for fighting ordinary criminals:
If the country seriously intends to prevent terrorism, then spying at home, detaining terror suspects, and conducting tough interrogations are practices that the government will need to engage in for many years to come. Instead of making proper legal provisions for those practices, Bush has run the war against jihadism out of his back pocket, as a permanent state of emergency. He engages in legal ad-hockery and trickery, treats Congress as a nuisance rather than a partner, and circumvents outmoded laws and treaties when he should be creating new ones. Of all Bush’s failings, his refusal to build durable underpinnings for what promises to be a long struggle is the most surprising, the most gratuitous, and potentially the most damaging, both to the sustainability of the antiterrorism effort and to the constitutional order.
One may agree with Rauch or disagree with him, but his criticisms can't, I think, be easily dismissed.
Constitution Day at the Cato Institute:
For all you con law buffs, this coming Thursday, September 14, is Constitution Day at the Cato Institute: an all day conference featuring presentations on the most important Supreme Court cases of the 2005-2006 term. Among the presenters are leading legal scholars from across the political spectrum, such as liberal Walter Dellinger (discussing the upcoming Supreme Court term) and conservative John Yoo (discussing and, I assume, criticizing, Hamdan v. Rumsfeld).
Other speakers include VC's own Dale Carpenter (speaking about FAIR v. Rumsfeld), Randy Barnett, and yours truly. For a full schedule, see here.
My paper and presentation are about this year's federalism decisions (primarily Gonzalez v. Oregon and Rapanos v. United States), and argues that they do not herald any revival of judicial enforcement of limits on federal power. Here's an excerpt from the abstract:
The Supreme Court's 2005 decision in Gonzales v. Raich severely undermined hopes that the Court might enforce meaningful constitutional limits on congressional power. In the aftermath of Raich, some observers hoped and others feared that judicial limits on federal power might be resuscitated in Gonzales v. Oregon and Rapanos v. United States . . . A less high-profile [2006] case, Arlington Central School District v. Murphy, addressed the scope of Congress' power to set conditions on grants to state governments under the Spending Clause. Although the federal government suffered setbacks in all three cases, none of them actually impose significant constitutional limitations on congressional power.
Oregon, Rapanos, and Arlington all involved challenges to assertions of federal regulatory authority that might run afoul of “clear statement rules.” These doctrines require Congress to clearly indicate its intent in the text of a statute before courts can interpret it in a way that “raises constitutional problems,” impinges on an area of traditional state authority, or imposes conditions on state governments that accept federal funds . . .
[T]he major federalism cases of the 2005-2006 term fail to impose any constitutional limits on federal power, and also do not extend the reach of clear statement rules. Thus, the legacy of Raich remains intact. Indeed, all three decisions actually reinforce that legacy by emphasizing that Congress has the power to regulate almost any activity, but merely failed to exert it to the utmost in these specific instances.
Dale's interesting paper on Fair v. Rumsfeld is available here.
Come one, come all!
How Wrong Can a Five-Sentence AP Story About Guns Be?
The AP reports:
Semiautomatic rifles and shotguns are used in a crime in Maryland on average once every two days, according to a study released Wednesday by gun control advocates.
The study is based on an analysis of crime statistics for 1998 through 2001. It said at least 789 semiautomatic long guns that can legally be sold in Maryland were traced to a crime in Maryland during that period.
Delegate Neil Quinter, D-Howard, and CeaseFire Maryland, a gun control organization, said the study shows that Maryland needs to expand the 1994 law that bans the sale of semiautomatic pistols to include rifles and shotguns.
Opponents have defeated bills that would expand the law, arguing that the ban would infringe on the rights of lawful gun owners and would do nothing to reduce crime because such guns are seldom used to commit crimes.
Except:
1. Maryland law doesn't "ban[] the sale of semiautomatic pistols"; it bans the sale of a subset of semiautomatic pistols that it labels "assault pistols". I generally doubt that such "assault weapons" bans make much sense, but they clearly don't ban semiautomatic pistols generally.
2. The study, which seems to be this one here, likewise doesn't discuss semiautomatic rifles generally, but only "assault rifles." Again, I doubt that such a focus on "assault rifles" is sensible, but it's clear that the study is discussing only those rifles, not semiautomatic rifles generally.
3. The study claims to report on traces of certain kinds of rifles, without including traces of any kind of shotguns.
4. The study reports on the number of assault rifles traced back to a crime, not the number used in a crime -- a gun that was used but never recovered would never get traced back.
The study's title, by the way, is "Every 48 Hours: An Analysis Of Assault Rifles Traced To Crime In Maryland" -- not used, but traced; semiautomatics, not rifles or shotguns, not long guns, but assault rifles. I'm not sure whether the story's author misunderstands the definitions of rifle, shotgun, and semiautomatic, whether the author simply misread the study, or whether the author was misled by someone who was characterizing the study. All I can say is that the story is pretty badly busted.
Incidentally, I am not suggesting that these errors betray anti-gun bias on the reporter's part. The errors likely understate the magnitude of crime using long guns -- since "assault rifles" are only a subset of "semiautomatic rifles and shotguns," then if the study's data is accurate, the relevant crime count for semiautomatic rifles and shotguns should be considerably more than 789; likewise, since the study measures only guns that were recovered and traced back to the crime, the actual number of guns used in crime is likely to be considerably greater. The errors also overstate the breadth of CeaseFire Maryland's gun control proposal, making it seem broader and thus more radical than it really is (again, whether or not you think that the proposal is sound).
Russian Jews and the Liberal Jewish Establishment:
David Bernstein's post about conservative Jews being alienated from the liberal Jewish establishment is particularly relevant to the special case of Russian immigrant Jews. Russian Jews are politically well to the right of most native-born Jews. For example, some 75% of Russian Jews voted for Bush in 2004, compared to less than 20% of other Jews.
Russian Jewish immigrants tend to be very secular and are therefore are not socially conservative; although I haven't seen polling data on the subject, I suspect that the vast majority of Russian immigrant Jews are pro-choice, for example. But they are, on average, far to the right of native-born Jews on national security issues and economic policy (because of the experience of living under socialism). Russian Jews are in the unusual position of being a highly secular, yet also generally right-wing ethnic group.
These ideological differences between Russian and native-born Jews are not new. In the 1970s and 80s, many Russian Jewish immigrants were angered by the fact that most mainstream Jewish organizations opposed taking a hard line against the Soviet Union. However, the War on Terror (on which most Russian Jews are more hawkish than native-born Jews), has increased the saliency of these disagreements. This has led to a number of Russian vs. native-born disputes within Jewish organizations, similar to the ones documented in the Wall Street Journal article linked above.
The rapid growth of the Russian Jewish community over the last 30 years has increased the potential importance of this constituency. According to the WSJ article linked above, there are now some 700,000 Russian immigrant Jews in the US, which is about 12% of the total American Jewish population. It is also perhaps worth noting that nearly all of the Russian Jewish academics and intellectuals I can think of are conservative or libertarian - a striking fact given the reality that academics tend to be far more liberal than the general population. While Russian Jews are currently underrepresented in the intellectual world relative to native-born Jews, the gap is likely to keep closing as immigrants rise in socioeconomic status. If Russian Jews continue to increase in numbers and political/intellectual influence, the Jewish establishment may find it more costly to ignore our concerns than has been the case so far.
Will mainstream Jewish organizations moderate their leftism in order to attract more Russian Jews? It's hard to say, but I suspect that most will not. It is possible that assimilation will lead more Russian Jews to become liberal, thus closing the gap between the two communities. But I suspect that the longterm partisan profile of Russian Jews is more likely to resemble that of other relatively affluent white ethnic groups than that of native-born Jews. For these reasons, the ideological alienation of Russian Jews from most mainstream Jewish organizations is likely to continue.
Friday, September 8, 2006
New Excuse for Commitment-Phobic Men:
Courtesy of Brad Pitt: "I'm sorry honey, I love you and I want to marry you, but it just wouldn't be right for us to get married when gay couples are denied that right." Not only can you weasel out of marriage, but you can claim points for being a sensitive social activist at the same time! Probably works better than, "I love you and want to marry you, but as a married couple our combined taxes will go up $5,000 a year."
Suppression of Dissent::
The Daily Mail (U.K.) reports:
[Evangelical Christian Stephen Green] faces a court appearance today charged with using 'threatening, abusive or insulting words or behaviour' after his attempt to distribute the leaflets at the weekend 'Mardi Gras' event in Cardiff.
A spokesman for the police said the campaigner had not behaved in a violent or aggressive manner, but that officers arrested him because 'the leaflet contained Biblical quotes about homosexuality'....
The anti-gay campaigners were first asked by police to leave the site of the [Mardi Gras event] following 'complaints from the public', and complied with the request. However, they were approached again by police when they began handing out leaflets at the entrance to the park where the Mardi Gras was staged.
Mr Green refused to stop distributing leaflets and was arrested, and then questioned for four hours at a police station. He was charged after refusing a caution.
The leaflets were headed Same-Sex Love - Same-Sex Sex: What does the Bible Say?, and included a series of quotations from the 1611 King James Bible, a text usually regarded as one of the foundation stones of the English language.
Aimed at demonstrating Biblical disapproval of homosexual sex, they included from the Old Testament Leviticus 18.22, 'Thou shalt not lie with mankind as with womankind: it is abomination'.
The leaflets also quoted Romans 1:25-27 from the New Testament, to the effect that homosexuals are given to 'vile affections'.
The handbills urged homosexuals to 'turn from your sins and you will be saved'.
The charge against Mr Green is that he used 'threatening, abusive or insulting words or behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby', contrary to the Public Order Act 1986....
Colin Hart of the Christian Institute think tank said: 'This was a very gentle leaflet. There was no use of words like "perversion". I have to wonder if churches, bishops and archbishops are now vulnerable to arrest for their views on homosexuality....'
There may well be more to the case than the article reports, of course; if readers know more, I'd much appreciate their pointing it out. I should note that I'm puzzled by Mr. Hart's distinction between "perversion" and "vile"/"abomination," but I agree that it's hard to draw a principled line between Mr. Green's leaflets and broadcasts, newspaper articles, and other anti-homosexuality items that may "insult[]," "alarm," or "distress" some readers. It does look like publicly teaching traditional Christianity might indeed be a crime in England.
Guns on University of Utah Campuses:
The state legislature enacted a law barring "state and local entities from enacting or enforcing any [rule] that in 'any way inhibits or restricts the possession or use of firearms on either public or private property.'" The University of Utah, which generally bans students and employees from carrying guns while "on campus and 'while conducting university busines off campus,'" claimed that the state law interfered with the University's autonomy (guaranteed, according to the University, by the state constitution). Not so, the Utah Supreme Court just held: The Utah Constitution, it concluded, does not give the University autonomy; like other state government entities, the University is subject to legislative control -- "the legislature has the ability to generally manage all aspects of the University."
The Utah Supreme Court did not reach the University's claimed First Amendment academic freedom right to exclude guns (on the theory that the presence of guns on campus would "hamper[] the free exchange of ideas"); that issue is being litigated in federal court, though in my view the University's argument is a sure loser. There are at least two reasons for that: (1) The state law is content-neutral (in fact, speech-neutral), and would thus be at most subject to United States v. O'Brien scrutiny, which it would easily pass. (2) Even if state institutions have First Amendment rights to be free from federally imposed speech restrictions (a matter that's unsettled), I think they have no such rights to be free from restrictions imposed by their own supervisors in the state governance structure (here, the state legislature).
Thanks to John Bogart for the pointer.
New Technology Breeds New Vices:
A correspondent reports:
No doubt you have seen that a lot of the law reviews now have pocket parts, debate sections, web publications, etc. People are now writing on their resume that they published in the main line law review, without any indication that it was not in the hardcopy traditional publication. Does this seem right to you?
No, it doesn't. If I saw this on a resume, assumed that the person had published in the main journal, and then realized that he'd published in a separate online publication that the journal runs, I'd count that strongly against him. The Pocket Part is a great publication, and it's run by The Yale Law Journal, but it's not the same publication, it doesn't have the same selection pool, and it shouldn't be listed as -- or count as -- the same credential.
Are Politically Conservative Jews "Turned Off" by the Jewish Establishment?:
Ha'aretz publishes an example of a very typical article in Jewish publications these days, accusing the American Jewish establishment of being too conservative, and too supportive of Israel, and therefore turning off young (which is for some reason used as a synonym for leftist) Jews.
I want to raise the opposite issue, which I've never seen addressed in print before: whether what is actually, judged by the "mainstream" American political spectrum, the pervasive liberalism of the American Jewish establishment and laity, including the (non-Orthodox) religious establishment, "turns off" right-leaning American Jews. I can't imagine I'm the only one who has some ideological religious sympathy with Reform Judaism, but can't stand the prospect of going to a synagogue and hearing, e.g., an incredibly ignorant and religiously irrelevant op-ed-masquerading-as-a-sermon on gun control from the rabbi (which, I should note, actually happened to me in a synagogue in the D.C. area).
Moreover, you can't be a "proud conservative" Jew in many congregations without attracting at best pointed questions, and at worst blatant insults, from your fellow congregants. Long-time readers may recall that I have previously posted some anecdotes along the latter lines, though I can't find the links now. Not to mention putting up with the left-wing sermons, left-wing religious action committees that claim to speak in your name, people who won't date you if they find out you're a Republican(!), et al.
Given that conversion to Christianity by American Jews outside of marriage is relatively rare, it strikes me as remarkable that I can name off the top of my head at least three prominent American Jewish conservatives (a small breed to begin with) who converted to Christianity in their later years, and I know of several others who are rumored to have converted, or at least flirted with it. And several major leaders of American conservative evangelical Christianity were born Jews. I'm not questioning the sincerity of any of these individuals' conversions, just wondering whether a (if not necessarily THE) factor that led them to seek another religious community is discomfort with the way individuals of their political ilk are received in the Jewish community.
So, I'm really just wondering: has anyone ever studied, journalistically or academically, "alienation" from the Jewish community among political conservatives, the way folks are constantly ringing their hands about alienation among leftists? If not, it would make a great sociology or religious studies thesis. Related Posts (on one page): - Russian Jews and the Liberal Jewish Establishment:
- Are Politically Conservative Jews "Turned Off" by the Jewish Establishment?:
How Appealing and Volokh Conspiracy Quoted in Senator's Congressional Record Statement:
Beltway Blogroll reports:
Here is an excerpt from Santorum's statement in the Congressional Record:
Howard Bashman, an appellate attorney and editor of the How Appealing legal blog, wrote in The New York Times on August 19 that "[i]t does appear that folks on all sides of the spectrum, both those who support it and those who oppose it, say the decision is not strongly grounded in legal authority."
UCLA law professor Eugene Volokh wrote on his widely read blog: "the judge's opinion ... seems not just ill-reasoned but rhetorically ill-conceived. ... [B]y writing an opinion that was too much feeling and too little careful argument, the judge in this case made it less likely that the legal approach she feels so strongly about will ultimately become law.
I haven't read the rest of the Senator's statement, but I'm pleased that our material seems to be worth quoting.
UPDATE: I was originally informed that this was a floor statement, but it turns out that it was just read in the Congressional Record -- I'll happily take that, but I just thought I'd clarify (and correct the post title accordingly).
The Baby Name Primary:
Michael Williams points to the change in popularity of the name Hillary. See his post for a cool graphic, but here's the table from the Social Security Administration:
| Year of birth | Rank [lower = more popular] |
| 2005 | 882 |
| 2004 | 809 |
| 2003 | [>1000] |
| 2002 | [>1000] |
| 2001 | 886 |
| 2000 | 878 |
| 1999 | 856 |
| 1998 | 868 |
| 1997 | 725 |
| 1996 | 693 |
| 1995 | 684 |
| 1994 | 566 |
| 1993 | 261 |
| 1992 | 131 |
| 1991 | 165 |
George has remained roughly stable from 2000 on; William spiked in 1998, of all years, and remained high (now #11, as opposed to $20 in 1992).
Eugene has been declining ever since this blog was founded in 2002. On the other hand, it has been declining since 1991, the first year that this table reports, and even more since the 1930s. In the 1930s, by the way, it was #25 (owing at least in part, I'm told, to the fame of Socialist Eugene V. Debs); in 2005, it was #539.
But, hey, I beat Hillary!
UPDATE: I originally erroneously reported this as Census data; it's Social Security Administration data.
Donald Rumsfeld and Planning for the Iraq War:
Today's issue of The Daily Press, a local paper in Hampton Roads, Virginia, has a fascinating and very troubling interview with Brigadier General Mark Scheid, commander of the Army Transportation Corps who was one of the early planners for the war in Iraq. Scheid is retiring from military service in a few weeks, and he spoke to the local paper in Virginia about Donald Rumsfeld's instructions for drafting plans for the invasion of Iraq. Here's an excerpt, with the most newsworthy part in bold: A day or two [after 9/11], Rumsfeld was "telling us we were going to war in Afghanistan and to start building the war plan. We were going to go fast.
Then, just as we were barely into Afghanistan ... Rumsfeld came and told us to get ready for Iraq." . . .
Planning was kept very hush-hush in those early days.
"There was only a handful of people, maybe five or six, that were involved with that plan because it had to be kept very, very quiet."
There was already an offensive plan in place for Iraq, Scheid said. And in the beginning, the planners were just expanding on it.
"Whether we were going to execute it, we had no idea," Scheid said.
Eventually other military agencies - like the transportation and Army materiel commands - had to get involved.
They couldn't just "keep planning this in the dark," Scheid said.
Planning continued to be a challenge.
"The secretary of defense continued to push on us ... that everything we write in our plan has to be the idea that we are going to go in, we're going to take out the regime, and then we're going to leave," Scheid said. "We won't stay."
Scheid said the planners continued to try "to write what was called Phase 4," or the piece of the plan that included post-invasion operations like occupation.
Even if the troops didn't stay, "at least we have to plan for it," Scheid said.
"I remember the secretary of defense saying that he would fire the next person that said that," Scheid said. "We would not do planning for Phase 4 operations, which would require all those additional troops that people talk about today.
"He said we will not do that because the American public will not back us if they think we are going over there for a long war."
Why did Rumsfeld think that? Scheid doesn't know. Thanks to Bob Turner for the link.
"Because We're the Good Guys, and They're the Bad Guys":
The New York Times tries to make a story out of nonstory: free-market groups that quite naturally defend the largest, most successful business in the U.S., Wal-Mart, from government regulation, get a tiny fraction of their funding from the Walton Family Foundation (not even from Wal-Mart itself). At least from what can be discerned from the article, none of this money is earmarked for Wal-Mart related research, and some of it is specifically earmarked for causes, like education reform, that have nothing to do with Wal-Mart.
The story does have a classic line. After spending almost the entire article raising suspicions of whether the free market groups are being unduly influenced by Walton family money, and discussing whether they should disclose the contributions in their publications, the article offhandedly mentions that labor unions give prodigious funding to anti-Wal-Mart organizations. Is this an "astroturf problem," as the article tries to avoid implying, or at least something that raises at least as many issues as the Walton Family Foundation funding the likes of AEI?
In response, Chris Kofinis, communications director for WakeUpWalmart.com, an arm of the United Food and Commercial Workers Union that gives money to liberal research groups, said: "While we openly support the mission of economic justice, Wal-Mart and the Waltons put on a smiley face, hide the truth, all while supporting right-wing causes who are paid to defend Wal-Mart’s exploitative practices.”
UPDATE: In the highly unlikely event the Walton family thinks it's buying the Heritage Foundation's allegiance to Wal-Mart for less than $5K a year, it's obviously mistaken. Gues the Times' reporter was too lazy to bother checking whether the think tanks he cites as being potentially subject to Wal-Mart's influence have been cheerleaders for Wal-Mart when the companies' policies conflict with the think tanks' free market ideology, which would be the real test of influence-buying.
FURTHER UPDATE: And here's AEI's (and one of my favorite blogs, Overlawyered.com's) Ted Frank criticizing Wal-Mart in yesterday's Washington Post, surely not something that could have conceivably escaped the Times's attention! Looks more and more like the Times published an anti-Wal-Mart press release as a "news" story.
Patent Law, Bad to Verse:
Sorry for the lousy pun. Yehuda Berlinger has produced a verse translation of the entire US Patent Act. It's quite a feat -- as Dr. Johnson said of the dog playing the violin, the amazing thing is not how well it was done, but that it was done at all. Not the world's greatest poem -- personally, I hate the rhythm/rhyme scheme (which I'm sure has a name)
da DA da DA
da DA da DA
da DA da DA
da DA da DA
that gives us verses like:
A regular patent you
Filed for here
Can be filed abroad if
You wait half a year
But that's just a quibble. Patent law can use all the poetry it can get.
Thursday, September 7, 2006
How not to Argue Against a Constitutional Amendment:
This op ed by prominent federal Judge J. Harvie Wilkinson criticizing anti-gay marriage amendments has gotten a lot of attention in the blogosphere (e.g. here, here, and here). I definitely agree with Judge Wilkinson's conclusion - that anti-gay marriage constitutional amendments at both the state and federal level are deeply misguided. But I have serious doubts about some of his reasoning:
Twenty states have constitutional amendments banning gay marriages; many more are in the offing. On the ballot this fall in Virginia and five other states will be proposed constitutional amendments banning gay marriage. Passage of the amendments is all but foreordained, but the first principles of American law will be further endangered....
The Framers meant our Constitution to establish a structure of government and to provide individuals certain inalienable rights against the state. They certainly did not envision our Constitution as a place to restrict rights or enact public policies, as the Federal Marriage Amendment does.
Ordinary legislation — not constitutional amendments — should express the community's view that marriage "shall consist only of the union of a man and a woman." To use the Constitution for prescriptions of policy is to shackle future generations that should have the same right as ours to enact policies of their own. To use the Constitution as a forum for even our most favored views strikes a blow of uncommon harshness upon disfavored groups, in this case gay citizens who would never see this country's founding charter as their own.
I don't think that a proposed constitutional amendment should be rejected merely because constitutions shouldn't "enact public policies." To the contrary, one of the main reasons for having a Constitution in the first place is to "enact" certain "public policies" in a way that makes it very difficult for government officials to change. The First Amendment certainly enacts a public policy on freedom of speech and religion; the Fifth Amendment Takings Clause enacts a policy on the protection of private property; the Fourth, Sixth and Seventh Amendments enact policies on various issues in criminal and civil procedure, and so on.
Similarly, it isn't a very compelling argument to claim that an amendment should be rejected because it "strikes a blow . . . upon disfavored groups . . . who would never see this country's founding charter as their own." The First Amendment surely "strikes a blow" against "disfavored groups" who oppose freedom of speech and religion, such as Communists, Nazis, and radical Islamists. Most members of these disfavored groups surely don't see the Constitution as "their own." The Thirteenth Amendment was bitterly opposed by slaveowners who saw it as "strik[ing] a blow" against the very foundation of their way of life. Virtually any Amendment that accomplishes an important goal "disfavors" at least some groups. The real question is whether it is justified in doing so. The difference between gays victimized by anti-gay marriage amendments and slaveowners harmed by the Thirteenth Amendment is that the latter deserved what they got, while the former, in my view, definitely do not.
Nor am I persuaded by Wilkinson's argument that constitutions should never be used to "restrict rights." After all, the Thirteenth Amendment not only restricted but actually abolished the right to own slaves, a right that had been protected by the Supreme Court in several major decisions such as Dred Scott and Prigg v. Pennsylvania. Yet this restriction of a "right" was surely justified. Perhaps Wilkinson meant to say that constitutions should only avoid restricting those rights that are desirable and just. "Bad" rights are fair game. But if so, gay marriage opponents have no reason to accept his argument, since they believe that the claimed right to gay marriage is completely unjustified. Once again, the real issue is not whether "rights" have been restricted, but whether the restriction is justifiable or not.
Finally, Wilkinson is on to a somewhat better argument when he says that we should not "shackle" future generations with a constitutional mandate unless we are quite sure that the rule it establishes is sound. Fair enough, but this still should not deter those gay marriage opponents (and there are many of them) who feel very certain that they are right about the issue. Moreover, it's important to remember that most state constitutions are far easier to amend than the federal constitution is - which is one reason that so many state anti-gay marriage amendments have been adopted so quickly, over the last two years. At the state level, constitutional "shackles" are not nearly as tight as they are at the federal level.
In sum, Judge Wilkinson is absolutely right to oppose anti-gay marriage amendments. But the real reasons to do so are that gay marriage is right and just and that the threat of runaway "judicial activism" cited by supporters of the amendments is vastly overblown (as co-blogger Dale Carpenter has documented on numerous occasions, including here). It isn't because constitutions should not be used to "enact policies" or "restrict rights" or "shackle" future generations. Almost any constitutional amendment does some or all of these things.
UPDATE: It may be worth clarifying the fact that my main point is that Judge Wilkinson's arguments could be used against virtually any constitutional amendment, including many (such as the Bill of Rights and the Thirteenth Amendment) that command overwhelming support and that he himself would probably endorse.
UPDATE #2: Perhaps the most common objection raised against my argument by various commenters is some variation on the claim that Judge Wilkinson is merely arguing that we should be cautious about constitutionalizing our policy preferences, other things equal. I don't necessarily disagree with this sentiment. Unfortunately, Wilkinson's argument goes far beyond it. He categorically states that constitutions should not be used "as a place to restrict rights or enact public policies," or to "shackle future generations." Nowhere does he qualify these statements by suggesting that they hold true only if other things are equal. If he had meant to qualify his reasoning in this very significant way, I think that Wilkinson would have said so explicitly. Moreover, an "other things equal" interpretation of Wilkinson's argument greatly undermines his case against the anti-gay marriage amendments. After all, those who support such amendments emphatically do not accept the premise that other things are equal because they believe that gay marriage is a grave threat to important public values. An "other things equal" argument against the amendments only has merit if you assume that the establishment of gay marriage is not a significant problem. But if you believe that (as I certainly do), you probably wouldn't support anti-gay marriage amendments in the first place.
Taking from the Rich to Give to the Rich - Some Lessons from a Highly Unusual Eminent Domain Case:
This Weekly Standard article discusses an unusual attempt to use eminent domain take from the rich to give to the only slightly less rich:
Ever since the Supreme Court ruled in Kelo v. New London that forcing the sale of private property to promote economic development and broaden tax revenues passed constitutional muster, Americans have read about a steady parade of eminent domain horror stories, typically involving wealthy developers and cash-strapped city councils. But with Deepdale, eminent domain moved from heartbreak to absurdity, as the local mayor kicked around the idea of seizing a plush private golf course and making it "public."
Deepdale is located in the tony village of North Hills, New York, along a strip of Long Island's North Shore known as the Gold Coast. Founded in 1924 by William K. Vanderbilt II, its most famous members have included Presidents Eisenhower and Nixon, as well as New York City mayor Mike Bloomberg and a bevy of celebrities. The club boasts around 200 current members--by invitation only--and gauges the value of its 175-acre property at over $100 million.
Critics like to mock eminent domain abuse as "Robin Hood in reverse"--taking from the poor to benefit the rich. Not so in North Hills, where the fight for Deepdale pitted rich villagers against even richer golfers. Judged by its real estate prices and per capita income, North Hills, a village of about 4,500 residents, ranks among the wealthiest communities in America.
The story of how Deepdale fell into the crosshairs of eminent domain traces back several years, to the tenure of former North Hills mayor John Lentini, a Republican, who served for over a decade. Shortly before his death in 2002, Lentini gave an interview to New York Newsday and gushed over a survey that had listed North Hills as the eighth wealthiest community in the United States. "This is a great community, full of warm people, most of whom are professionals," Lentini said, calling his village "a success story unrivaled in New York State."
Then he divulged his curious strategy for making North Hills even more attractive. "We believe our acquisition of the Deepdale Country Club will be the crown jewel of our municipality and bring us to a new level of North Shore Gold Coast affluence, perhaps bringing us to number one."
As the article documents, the wealthy and politically influential Deepdale members eventually managed to block the condemnation of their club by persuading the New York state legislature to pass a law preventing it. Silly as this story seems, it does raise three important issues about eminent domain:
First, as the article notes, this is a rare case where a local government tried to condemn the property of wealthy and politically powerful owners. The outcome illustrates one of the major reasons why "economic development" takings usually victimize only the poor and politically weak, a point I have emphasized in much of my own work on the subject (e.g. here), and also Justice O'Connor's and Justice Thomas' dissents in Kelo v. City of New London.
Second, because this condemnation would have transferred the golf club to public ownership, it would have been constitutional even under the rule preferred by the Kelo dissenters and by most Kelo critics in academia. Yet, the "public" nature of the new arrangement would have been almost entirely theoretical. The local government planned to make the golf course available only people who were 1) residents of North Hills, and 2) willing to pay hefty membership dues. In effect, the new "public" golf club would have been very similar to a private one (albeit with different membership rules from those imposed by the Deepdale club). This raises the important issue of what to do in cases where "public" ownership of a condemned property is largely a sham for the advancement of narrow private interests, a question that has largely been ignored in federal Public Use jurisprudence, and also by most states. I would argue that at least some such takings should be invalidated because they are not true public uses. But it will often be difficult to draw a clear line between legitimate and illegitimate condemnations in this field.
Finally, it is worth noting the North Hills Mayor's absurd claim that the "acquisition of the Deepdale Country Club will be the crown jewel of our municipality and bring us to a new level of North Shore Gold Coast affluence." This despite the fact that, according to the article linked above, "There are [already] 20 courses within five miles of the village and 51, including 11 public tracks, within 15 miles." Unfortunately, such exaggerated claims of economic benefits from condemnation are all too typical. For reasons I have tried to document in various articles ( e.g. here), local governemnts have strong incentives to present inflated estimates of economic benefits that voters and courts cannot easily expose or challenge.
Ninth Circuit Appellate Clerk Gender Split:
For the clerkship year that's just ending, the Ninth Circuit Clerk of Court's office reports that it's 73 men and 73 women.
UPDATE: Just to clarify, these are "elbow clerks," who are hired by each individual judge to work for him or her, rather than "staff attorneys," who are hired by the court to perform somewhat different roles than the elbow clerks serve. My sense is that to most people "clerk" means "elbow clerk," and staff attorneys are called staff attorneys; but some commenters asked about this, so I thought I'd note it.
More on LP v. Blackwell:
Yesterday's Sixth Circuit decision finding that Ohio election regulations unconstitutionally denied ballot access to the Libertarian Party is more significant than the relatively sparse press coverage would suggest. Our local paper, the Cleveland Plain Dealer, only ran this small story on the decision.
As Richard Winger notes, this is the first time a minor party has won a ballot access case in a federal appeals court since 1997. This decision could also have national implications given Ohio's pivotal role in recent Presidential campaigns and increasingly purple hue. There is a Libertarian Party candidate for Governor in Ohio this year (former Case economics professor Bill Pierce), but the Libertarian candidate for President was not on the Ohio ballot in 2004, and this likely aided the re-election of President Bush. Given how disenchanted many Ohio conservatives have become with current Republican office holders, the LP may begin to cut into the GOP's support if it continues to field candidates (and Ohio Republicans continue to eschew any commitment to limited-government).
Lawsuits over "Crackberry" Addiction?
When I read stories like this, I don't know whether to laugh or to cry.
A professor at Rutgers's School of Business, Gayle Porter, predicts in a soon-to-be-published study that disgruntled workers who feel they are unable to turn off their personal digital assistants and mobile telephones will begin suing their employers for their technology addictions — and that such lawsuits could potentially cost corporate America hundreds of millions of dollars.
"If companies develop a culture in which people are expected to be available 24 hours a day, then they should be prepared for the physical and psychological consequences," Mrs. Porter said. "Addicts exhibit extreme behavior and have no control over themselves. So a corporation handing someone a BlackBerry on his first day of work could be seen as enabling, even accelerating, a serious addiction to technology."
(LvHB) Related Posts (on one page): - "Crackberry" Suits Unlikely:
- Lawsuits over "Crackberry" Addiction?
Phasing Out Dibutyl Phthalate:
The New York Times reports that several cosmetic makers are ending the use of dibutyl phthalate in nail polish due to concerns about possible health effects.
Some studies have linked exposure to dibutyl phthalate — a plasticizing ingredient that has been used to increase flexibility in nail polishes as well as medical equipment — with testicular problems in rats and humans. The chemical is banned from use in cosmetics in Europe and is considered a reproductive toxin by California.
A study that examined nail polishes and perfumes, published in 2004 in The Journal of Toxicology and Environmental Health, concluded that the amount of exposure to dibutyl phthalate from these cosmetics is relatively small. The study cautioned, however, that total exposure to the chemical from multiple sources may be greater and requires further investigation.
Companies are adjusting formulas even though beauty executives said the ingredient is safe in the concentrations in which it is used in cosmetics.
UPDATE: A commenter assumes that I posted this item because I find something wrong with the companies' decision. That is not the case, but I understand how my lack of comment could have led to that conclusion.
There has been an active debate over the health risks of phthalates for some time, and I found the story interesting insofar as it suggests that manufacturers are becoming more concerned about potential liability, additional regulations, or negative consumer reaction. It is also interesting to me because the fear of phthalates seems to be much greater in Europe than in the United States. Such differences in risk perceptions are not unusual -- Europeans tend to be more afraid of agricultural biotechnology and food additives, but less afraid of nuclear energy and, it seems, secondhand smoke -- but are quite interesting.
The Yale Law Journal Pocket Part Publishes a Symposium on the Future of Legal Scholarship:
The symposium includes works from Professors Paul Caron, Steven Vladeck, Christopher Bracey, Jack Balkin, and Ann Althouse, and also from me (on "Law Reviews, the Internet, and Preventing and Correcting Errors").
Wednesday, September 6, 2006
"Top Ten Things Not to Include in Your Bar Exam Essay,"
from The Revolution Is Not a Dinner Party. My favorites:
1. God's law (hereinafter "GL") is clear on the following point...
2. 3 generations of imbeciles is enough ...
9. While the defendant may have escaped punishment on Earth, he will get his just deserts in the afterlife....
Thanks to Jesse Walker for the pointer.
UPDATE: My favorite proposal for #11, from TaxLawyer: One struggles in vain for any verbal formula that will supply a ready touchstone. The standard set up by the statute is not a rule of law; it is rather a way of life. Life in all its fullness must supply the answer to the riddle.
Cardozo could get away with it. The rest of us, not so much.
Libertarian Party Beats Ken Blackwell:
Today a divided panel of the U.S. Court of Appeals for the Sixth Circuit held that two of Ohio's ballot access regulations, in combination, are unconstiutional. Specifically, in Libertarian Party v. Blackwell, the Court ruled: the combination of two Ohio election regulations – the requirement that all political parties nominate their candidates via primary election and the requirement that all minor political parties file a petition with the Secretary 120 days in advance of the primary – imposes an unconstitutional burden on its First and Fourteenth Amendment rights of free association, by effectively preventing it from gaining access to the general election ballot in the twelve months preceding a presidential election. Following the analytical framework set forth by the Supreme Court in Anderson v. Celebrezze, 460 U.S. 780 (1983), and its progeny, we find that the combination of these two requirements imposes a severe burden on the constitutional rights of the LPO, its members, and its potential voter-supporters. As the regulations are not narrowly tailored and do not advance a compelling state interest, Ohio’s system for registering new political parties violates the Constitution. Judge Gibbons wrote the majority opinion. Judge Clay concurred in part and dissented in part. Judge Griffin dissented.
I'm in the Detroit airport at the moment, awaiting a delayed flight, so I doubt I'll be able to post more on this today. However, I expect Rick Hasen's Election Law Blog and Ohio State's Election Law site will link to commentary on the decision as it appears.
Research Canons for Various Legal Topics:
Matt Bodie (PrawfsBlawg) is starting up a great project, which should be useful to incoming legal academics, to experienced academics who are thinking of writing in a new subfield, and to non-academics who still want to write serious legal scholarship. I don't have the answers, but I wanted to alert people to the questions: Unlike other disciplines, most law academics do not have an advanced degree in "law." For students pursuing a Ph.D in areas such as economics, history, or social psychology, they must pass comprehensive exams showing that they have a broad knowledge of the most important works in the field. It is only after comps that students go on to complete their specialized dissertation research.
Legal academia assumes that entry-level candidates and new scholars have done the background research necessary for their area of expertise. But it is left to the individual to get this knowledge. Certainly, the J.D provides a baseline, and mentors are helpful in providing further direction. But there is nothing akin to comps that sets forth a comprehensive listing for new folks to follow. Many of us have heard the question, in the AALS interview, in the job talk, or as a new scholar presenting a paper: "Well, of course, you have read the work of Prof. X in this area, right?" Failure to respond appropriately to this question may raise eyebrows and cast doubt on the scholar's research.
The Research Canons project is intended to fill this gap.
Over the following weeks, we will be asking for input on the canons for the following subjects:
Civil Procedure
Contracts
Criminal Law
Criminal Procedure
Property & Real Estate Law
Torts
Constitutional Law
Administrative Law
Commercial Law
Corporate Law
Dispute Resolution
Employment and Labor Law
Environmental Law
Family Law
Health Law
Intellectual Property
International Law
Law & Economics
Law & Philosophy
Law & Race Relations
Legal Ethics/Professional Responsibility
Legal History
Tax
Trusts & Estates
Let us know if we're missing an area of interest.
We hope this project goes some way in presenting a bibliography for new scholars. We look forward to hearing your input in the upcoming weeks. We'll start with Civil Procedure tomorrow. As for now, perhaps we can start with this question: Is this project worthwhile? Or are the lists too long, too topic-specific, and/or too ideological to be useful?
If you have suggestions or comments, specific or general, please post them on PrawfsBlawg, and keep an eye out for posts that solicit additions for individual categories.
Moore, Circuit Judge:
Congratulations are in order for the newest (and youngest) federal circuit judge: GMU lawprof Kimberly Moore has been confirmed to a seat on the United States Court of Appeals for the Federal Circuit by a vote of 92-0. Kimberly, er, Judge Moore is going to be terrific; although I'll miss the constant flow of very interesting articles she generated as a full-time professor, I'm very glad to see that the Senate acted on her nomination. (Hat tip: How Appealing)
State Courts' Reversal Rates in the Supreme Court:
An interesting question came up: There's plenty of data on the U.S. Supreme Court reversal rates for the federal circuit courts (the Ninth Circuit is often listed as one of the most reversed, though other circuits have pretty high reversal rates, too), but is there some such data for cases coming out of state courts as well? Obviously, it would have to span several years to be even marginally meaningful, and even then it's not clear how meaningful the results would be. Still, it would be interesting data to look at; can anyone point me to some such dataset? Thanks!
Interesting Sports Ethics Question,
posed on the Ethics Scoreboard: Last month's tournament leading up to the Little League World Series included one game with an unusual series of events that set the stage for a fascinating ethical debate.
The Situation: On August 11 in Bristol, Conn., a Little League team from Colchester, Vt., only had to retire its Portsmouth, N.H. opposition in the top of the sixth inning (Little League games are six innings rather than nine) to win the game 9-8 and move on to the New England regional championship game.
But there was a problem. The Vermont team had made its third out in its half of the fifth inning before player Adam Bentley got to the plate. The Little League has a strict rule that requires every player to bat at least once a game, and the penalty for violating it is forfeit. Vermont's coach Denis Place realized, to his horror, that even though his team had the lead entering the last inning the only way it could avoid losing by forfeit was for Bentley to get an at bat. For that to happen, the New Hampshire team would have to tie the score or take the lead, requiring the teams to play the last half of the sixth inning.
Place held a meeting of his players at the pitcher's mound and instructed them to let New Hampshire score a run. The plan: walk the first batter, and ensure that he made it home with the assistance of wild pitches and intentional errors so the game would be deadlocked at 9-9. Then, hopefully, win the game in the bottom of the sixth inning, with Adam Bentley getting his mandated turn at the plate.
Not so fast. The New Hampshire team's coach, Mark McCauley figured out what was happening and ordered his players not to score. So after a walk and two wild pitches allowed a New Hampshire runner to reach third base, the player refused to advance to the plate despite another wild pitch and a fielding error. McCauley also told his players to strike out intentionally, preserving Vermont's lead but guaranteeing a successful New Hampshire protest that, under the rules, would require that New Hampshire win by forfeit.
This obviously led to a ridiculous spectacle: one team trying to give up a run while the other team was trying to make outs and avoid scoring. The perplexed umpires understandably chose to end the debacle by ejecting Place and his pitcher from the game. Vermont won 9-8 ... and then New Hampshire was awarded the victory by forfeit, because Adam Bentley never got his turn at bat. The New Hampshire team advanced to the next round.
The Question: Whose conduct was unethical?
Possible Answers:
1. Place, the Vermont coach
2. McCauley, the New Hampshire coach
3. Both coaches
4. Neither coach. The Scoreboard notes the answers given by two sports ethicists, and then gives and defends its own. I've thought very little about sports ethics, but I agree with the Scoreboard that the Vermont coach didn't behave unethically (though obviously he did behave negligently by not playing Bentley earlier). I also tend to agree with the Scoreboard that the New Hampshire coach did behave unethically, but I'm considerably less confident about that judgment.
Tuesday, September 5, 2006
Judge Lynch Hears Arguments in NSA Case:
Judge Gerard Lynch of the Southern District of New York is an extremely bright and thoughtful guy, and as luck would have it he happens to have been assigned one of the NSA domestic surveillance program cases. He held a long hearing on the case earlier today, and Adam Liptak has a very interesting report on the hearing in the Wednesday New York Times.
Bleg for Help with Wavy Monitor:
My home computer setup has a Samsung SyncMaster 213T LCD monitor. For no reason that I can discern, a couple of days ago I started to get pretty major "wavy" interference on the monitor. I unplugged it and hooked it up to my wife's computer, on a desk a few feet away, and it worked fine, which I suppose must mean that the monitor is okay, but something nearby is causing the problem. I moved it back to my desk, and promptly got the waves again. I haven't moved any electronics around lately that I can remember. Any ideas? Thanks.
Crystal Morning:
Evan Coyne Maloney has produced a remarkable seven-minute documentary about the tragic and horrible events of September 11, 2001, "Crystal Morning." In addition to the film footage, the documentary relies on publicly-released tapes of actual emergency radio traffic from that morning.
It is an extremely moving film and some of the radio clips are almost too unbearably sad to hear.
LASIK Surgery:
Just had LASIK surgery this morning at the Maloney Vision Institute; the full results won't be evident for months, but so far, so good. My right eye, which used to be nearsighted and astigmatic, now seems to see perfectly. My left eye, which has been wildly nearsighted as long as I remember it, and was 20/800 yesterday, now seems very good, though I'm not sure that it's quite 20/20 (the doctor had warned me that I might need a touch-up operation for that eye, which would be part of the total package I bought).
I hope that things continue uneventfully, but if they do, I'll consider it a sound (though expensive, $2800 per eye plus a $200 consultation) investment — no more vision trouble from my astigmatism lens swimming around in the eye, fewer infections than with lenses, less of the occasional discomfort that contact lenses tended to cause, less risk of trouble in emergency situations where my contacts might be lost or damaged, and the like. (I can't successfully wear glasses for the long term because my prescriptions were so different, so contacts or surgery was my main option.)
I promise I won't turn into the sort of person who talks incessantly about his ailments, surgeries, bowel movements, and the like — but I just thought that this is an interesting enough surgery, and one that could help enough people, that it was worth mentioning it. Likewise, I generally don't comment on the amount of money I spend for my various purchases, whether of good or services; but here the data point seemed especially relevant for those who might be considering the operation themselves. (I am told that Dr. Maloney's rate is on the high end, but it probably gives you some sense of the likely ballpark for well-regarded LASIK surgeons in expensive areas like L.A.)
Citations to Amicus Briefs by Justice O'Connor:
This article seems pretty interesting: Ruth Colker, Justice Sandra Day O'Connor's Friends, forthcoming in the Ohio State Law Journal. Here's a summary: In an upcoming law journal article, Ohio State University Law Professor Ruth Colker examines how amicus briefs might influence judicial behavior.
Colker analyzed the 106 constitutional law cases heard by the Court during the tenure of Justice Sandra Day O’Connor (1981 to 2006) in which amicus briefs were filed. Colker focused on O’Connor’s citation of amicus briefs because her recent departure from the Court offered a complete set of opinions spanning three decades and because her role as a swing voter makes it likely that amicus authors often had her in mind, "Hence an examination of her opinions in cases in which amicus curiae filed briefs can lend insight into whether amicus briefs have much influence on the Court’s decision."
* * *
Colker found that amicus briefs were most likely to be cited by O’Connor if they offered specialized facts in support of the majority’s legal theory. In addition, Colker found that O’Connor was more likely to cite briefs filed by the Solicitor General, prestigious associations and the states. And she never cited briefs from organizations associated with overtly political causes – on the left and the right – such as the American Civil Liberties Union.
Interestingly, O’Connor was more likely to cite amicus briefs when she disagreed with their legal position than when she agreed with their position.
"If O’Connor is reflective of the Court, in general, then authors of amicus briefs, who wish to be cited by the Court, might want to focus more of their attention on factual development. They also might want to affiliate themselves with a neutral-sounding professional organization." Of course, citation is different from influence (as the article is quick to note). Some briefs are influential but go uncited, and others are cited but have no influence.
Petition for Rehearing in United States v. Ziegler:
A few weeks ago, I posted a very long entry about a troubling Fourth Amendment decision from the Ninth Circuit, United States v. Ziegler, which held that a private sector employee has no Fourth Amendment rights in his computer against government surveillance if his employer has a workplace monitoring policy in effect or otherwise has acccess to the computer. As I explained in my earlier post, this is incorrect, and incorrect in a way that has really important and very troubling long-term consequences. The last development in the case is that counsel for Ziegler has filed a petition for rehearing (.pdf), explaining the panel's error and asking the panel or the full Court to rehear the case. I very much hope the Ninth Circuit grants the petition: My sense is that the initial panel simply misunderstood a very complex doctrinal area, and that the panel didn't fully realize the impact of the decision or how much it conflicts with other cases in this area. (Full disclosure: following my initial blog post on the case, I contacted Ziegler's attorney and have discussed the case with him.) Of course, rehearing in any case is a bit of an uphill battle. Appellate courts get a lot of petitions for rehearing, and it can be hard to predict which petitions are likely to grab the court's attention. In any event, I hope this one does.
Datamining and the Fourth Amendment:
Today the Sixth Circuit handed down a Fourth Amendment case that addresses an interesting issue: Does querying a database trigger Fourth Amendment protection? The majority concludes that it does not: If the government collected the data in the database in compliance with the Fourth Amendment, analyzing that data does not implicate the Fourth Amendment. This is correct: broadly speaking, the Fourth Amendment regulates the collection of evidence, not the analysis of data already collected. Judge Karen Nelson Moore dissents, arguing among other things that the policy concerns raised in Fourth Amendment cases suggests that this may be incorrect. My sense, though, is that Judge Moore is confusing two steps: she is using the policy framework applicable to determine the reasonableness of a search, while the issue here is whether any search at all occurred. Hat tip: Howard, who (I am happy to report) is back from vacation.
Civics Lesson:
This is funny:
"Let me explain the government to you. There’s God, then there’s the president and then there’s my father.”
— Jack Roberts, 6-year-old son of Chief Justice John Roberts, overheard speaking to one of his young peers on the last day of summer camp
HT: The Corner
WSJ Dartmouth Constitution Editorial:
Last week I posted a brief excerpt from the Wall Street Journal's editorial on the Dartmouth constitution issue (it was still in the subscriber section at that time).
The WSJ has now made the full text of the editorial available for free. A pdf version is available at the www.alumiconstitution.org site that has collected resources on the constitution.
History of Trustee Election Rules at Dartmouth:
Proponents of the new proposed alumni constitution at Dartmouth have offered two basic arguments for why the new system is thought to be more "fair" than the system it replaces. I've been looking around a bit at the history of how the current rules came to be, and the impact of the new rules. Sources are sketchy, so I've tried to piece the details together as much as possible. Long story short, these arguments do not hold water when set in an historical context.
There are two basic rules that matter to the current debate.
The first is the "no campaigning" rule that forbids trustee candidates from speaking publicly once they become qualified candidates, except through the approved mechanisms (a short bio and statement on the ballot, two emails, a video statement, and further questions and answers posted on a website). This rule was established as by-laws of the alumni balloting committee, which are subordinate to the alumni constitution. Peter Robinson, T.J. Rodgers, and I, have all expressed our view that we strongly favor eliminating the "no campaigning" rule. These restraints are increasingly silly in the modern age of communications and impossible to apply with any degree of workability. Adding to the cynicism of the ploy, the new constitutional apparently would repeal the no campaigning rule.
The second is the voting and balloting rules. Typically, the alumni nominating committee nominates three candidates and the election is conducted according to "approval voting" rules. In 2005, there were two open seats, so the nominating committee nominated four candidates for the two seats. Unlike the officially nominated candidates, petition candidates can gain access to the ballot by submitting the required number of signatures from 500 alumni. Under approval voting, voters can vote for as many candidates as they like and find acceptable.
The new constitution purports to address both of these issues, but does so in quite a peculiar manner. Consider each.
The No-Campaigning Rule: First, the constitution requires those thinking of running as petition candidates to pre-identify themselves to the nominating committee and then if they are not chosen, gives them 30 days to collect 250 signatures to gain access to the ballot. This is an entirely illogical process, for reasons detailed in many places, including the Wall Street Journal editorial just the other day. Nonetheless, it supposedly is justified because it is said to be necessary to cure the purported "unfairness" of petition candidates to be able to "pre-campaign" while seeking petition signatures, an opportunity denied to those nominated by the alumni nominating committee.
But, of course, this argument is competely and utterly specious. It is not necessary to enact a brand-new massively complex constitution to address this issue. It is necessary simply to eliminate the rule banning campaigning by candidates. This rule could be changed today by the balloting committee. And its abolition has been supported publicly by nearly everyone who has addressed it--including Peter, T.J., and myself, all of whom are supposedly unfairly benefited by it. So to suggest that a brand-new constitutional trustee nomination process is necessary to address the issue is blatantly misleading.
The history of the no-campaigning provision is also quite interesting and sheds light on the current debate. In 1980 a man named John Steel ran as a petition candidate for trustee and was elected in a landslide. Efforts were made by the College and the board at the time to refuse to seat him and after protracted litigation, he finally prevailed.
The next year, in response to Steel's election the alumni council adopted a new rule governing trustee elections--the "no campaigning" rule. The rule proved effective--until Rodgers's election in 2004, Steel was the only person who had actually succeeded in getting elected via the petition route.
The Voting and Ballot Rules: Second, the new constitution eliminates the requirement that the nominating committee nominate several candidates for each seat and have the winner elected by approval voting. It supposedly replaces that system with a system that will promote two-person "head-to-head" races. In reality, it does nothing of the sort. Under the proposed constitution, there could still be multiple petition candidates. All that the new constituion would do is greant unilateral discretion to the nominating committee to set fields of candidates. As the Wall Street Journal observed, this "would allow the nominating committee to shape its slate against external challengers and split votes. These rules, like those in a casino, would game the odds in any given election in favor of the house."
The history of how the multi-candidate requirement came to be established is again interesting. In 1989 a man named Wilcomb Washburn qualified for the trustee ballot as a petition candidate (I recall this vividly as it was the first trustee election that I was able to vote in as an alumnus). Washburn was soundly defeated in a two-person race against a sitting trustee running for reelection.
Although he lost, Washburn's effort was too close for comfort for some. In 1990, therefore, the alumni council again changed the rules to make the system more "fair". Instead of nominating one person, with the possibility of a head-to-head election if a petition candidate qualified, the nominating committee would field several candidates with the winner to be decided by approval voting.
Thus the irony: the system adopted in 1990 in response to Washburn's petition candidacy is now to be scrapped and replaced with a "new" system--which is precisely the system that was abandoned in 1990. Except that now the number of candidates is left to the discretion of the nominating committee, which, again, would be able to run "head-to-head" races if it thought that would give its own candidates an advantage, of multiple-candidate races if it thought doing so would be more advantageous. Why the proposed change? Because the current system is thought to unfairly favor petition candidates.
Conclusion: Remarkably, in both the situations of Steel and Washburn there was apparently latent unfairness in the election rules that didn't come to light until petition candidates either won or mounted serious challenges to the establishment. By coincidence, it now appears that the successful election of petition candidates in the last three trustee elections has similarly exposed unfairness in the system that no one had notice for over a decade.
History suggests some interesting lessons about the current round of "reform." First, the purported inequality on campaigning could be eliminated today simply by eliminating the election rule that forbids it that was adopted after the Steel election. Second, the new balloting and voting procedures simply reinstate the pre-1990 rules--which were adopted in response to Washburn effort.
A cynic might be tempted to conclude that in the eyes of the election rule-makers at Dartmouth, what counts as "fair" is more a reflection of whether the proposed rule changes will operate to the detriment of petition candidates.
The views expressed here are mine alone as an alumnus and do not necessarily represent the views of the board of trustees.
Doubled Letters:
In English, of course, many words contain the same letter in two consecutive positions, as in beer or asset. But while some doubled letters are common, others are rarer. Can you identify words that contain a doubled a, h, i, j, k, q, u, w, x, and y? If you can't find them all, list one word each for as many of these letters as you can. Here are the rules; please read them and adhere to them carefully:
You may not do wildcard searches through dictionaries or other reference sources, or consult any preexisting lists that are tailored to this particular question. Major English dictionaries that include the words must list them entirely in lowercase, with no periods. (This is a good way of filtering out proper nouns and initialisms that still maintain a chief identity as initial.) The doubled letters may not have a mark (such as a hyphen or an apostrophe) between them. That some odd ducks may write one of the letters with a dieresis above it doesn't matter.
Please post your answers in the comments.
Judge Wilkinson Comes Out Against State and Federal Marriage Amendments:
Read it here. J. Harvie Wilkinson III, who serves on the U.S. Court of Appeals for the Fourth Circuit, is a prominent judicial conservative. The occasion for this particular op-ed is the sweeping Virginia state constitutional amendment on the ballot this fall.
Proponents of the amendment say that states need protection from activist
judges in other jurisdictions, but states already have this protection
through the Defense of Marriage Act and public policy defenses allowed under
the full faith and credit clause. As a result, a constitutional amendment is
at most a backstop for powers that states possess without any congressional
action at all. There is no greater need for such a constitutional backstop
here than there is for a constitutional amendment bolstering states'
authority to pass a sales tax, establish a transportation department or
support public education.
The Federal Marriage Amendment has helped spread the constitutional fever to
the states. State constitutional bans on same-sex marriages vary
considerably in their wording, particularly with respect to civil unions.
But most would repose in judges the authority to interpret such ambiguous
terms as "domestic union," "similar to marriage,"
"rights, obligations, privileges and immunities of marriage,"
"incidents of marriage" and so forth. Thus the irony: Those who wish to curb
activist judges are vesting judges with unprecedented interpretative
authority whose constitutional nature makes it all but impervious to
legislative change.
To constitutionalize matters of family law is to break with state
traditions. The major changes in family law in the 19th and 20th centuries,
such as the recognition of married women's property rights and the
liberalization of divorce, occurred in most states at the statutory level.
Even the infamous bans on interracial marriage were adopted
nonconstitutionally by 35 states, and by constitutional amendment in only
six.
Where is the threat that justifies so radical a break with our
constitutional heritage? State courts in Georgia, New York and Washington
have recently rejected invitations to follow Massachusetts and find a right
to same-sex marriage in their constitutions. The great majority of state
court judges -- more than 80 percent by some counts -- are subject to
election in some form and unlikely to overturn state legislatures on so
volatile a matter as same-sex marriage. States have numerous tools that
enable them to reject objectionable marriages from other jurisdictions --
tools that have long been the basis for refusing to recognize marriages
involving polygamy, incest, and underage or mentally incompetent parties.
. . .
Is it too much to ask that judges and legislatures acknowledge the
difficulty of this debate by leaving it to normal democratic processes? In
fact, the more passionate an issue, the less justification there often is
for constitutionalizing it. Constitutions tempt those who are way too sure
they are right. Certainty is, to be sure, a constant feature of our politics
-- some certainties endure; others are fated to be supplanted by the
certainties of a succeeding age. Neither we nor the Framers can be sure
which is which, but the Framers were sure that |