The Volokh Conspiracy

Seriously?

The Washington Post reports that a Democratic House leadership would likely name Rep. Alcee Hastings the head of the House Intelligence Committee, and that the Congressional Black Caucus is insisting on this, given that Rep. Hastings is first in line because of seniority; Michael Barone reports that "Minority Leader Nancy Pelosi is said to be determined to [name] Alcee Hastings" to the spot.

In 1989 the Senate removed then-federal judge Hastings, convicting him of conspiracy to take a bribe and perjury; the Senate vote was 69-25, and on one of the counts the vote was 34-21 even among Democratic senators alone. Hastings had been acquitted at his criminal trial some years before, which is to say that he wasn't proven guilty beyond a reasonable doubt. But shouldn't the standard for deciding who'll be head of the Intelligence Committee be more than just seniority plus he hasn't been proved guilty beyond a reasonable doubt?

Thanks to InstaPundit for the pointer.

UPDATE: Whoops — I inadvertently dropped the "likely" in "would likely name" when I first posted this post; sorry about that, and thanks to the commenters for alerting me to this. The "likely" is my interpretation of the Postarticle, which reports that Harman, the other leading candidate, seems to be almost sure to be off the committee, that skipping over Hastings would be "problematic," and that "skipping over Hastings might cause a real rupture with the Congressional Black Caucus, Pelosi aides fear," though the article also says that conservative Democrats are opposed to Jefferson, and that a compromise candidate has been suggested. Barone, on the other hand, reports that it's said to be certain; and while he's conservative and might have a jaundiced view as a result, he also knows a very great deal about current politics, so I'm inclined to credit his reporting on this.

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More on that Minneapolis bus driver:
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Conservative student groups and the logic of collective action:

Jonathan Adler's post below highlights the seemingly surprising fact that the conservative College Republicans are the largest and possibly most unified student group at the generally very liberal University of Californiat at Berkeley. This fact, however, is not as strange as it seems.

Basic collective action theory, as outlined in Mancur Olson's classic work The Logic of Collective Action (well summarized here), shows that it is easier to mobilize a small group than a larger one. The bigger the group, the more likely it is that some members will fail to contribute to the achievement of its common goals and instead free-ride on the efforts of others. In a small group, bu contrast, members know that if they fail to contribute, it is not likely that anyone else will pick up the slack. Moreover, it is usually easier and cheaper to organize and assemble a smaller number of people than a larger number. For this reason, it is likely that a much higher percentage of the conservative students at Berkeley take an active part in conservative organizations than liberal students who actively contribute to liberal ones.

It is also easy to understand why the conservative students tend to be unified in one organization (in this case the College Republicans), while the liberal ones are "splintered" into many factions, as the Wall Street Journal article quoted by Jonathan notes. Precisely because they are so heavily outnumbered, Berkeley conservatives know that they are unlikely to achieve much in the face of overwhelming liberal dominance if they fail to cooperate; being a beleaguered minority is conducive to unity in a way that majority status often is not.

I saw the same logic at work when I was a student at Yale Law School, where right of center students (including both conservatives and libertarians) were probably no more than 10% of the student body. Yet the Federalist Society was one of the largest student groups, and certainly one of the most active. We few YLS right-wingers knew that if we didn't work to promote our cause, nobody else at the Law School would either. And the overwhelming predominance of liberal and leftist students gave us a stronger incentive to put aside our differences than would otherwise have been the case. Indeed, the YLS Fed Soc at that time (1997-2000) included a variety of libertarians, social conservatives, neoconservatives, and even a few centrist Democrats. These disparate factions were willing to work together in large part because of the fact that we were so heavily outnumbered on campus by the political left. During the impeachment of President Clinton, which occurred during my second year at Yale, I wasn't shy about saying that I was opposed to efforts to remove him from office. Yet no one in the YLS Fed Soc seemed to mind my apostasy, despite the fact that one of the organization's leaders had spent the previous summer working for Ken Starr's independent counsel office.

Liberal YLS students, by contrast, had few such incentives to avoid factionalism and free-riding and as a result were split up among numerous groups focusing on single issues or (less commonly) on one particular narrow type of left-wing ideology.

When will we know that liberal dominance on campus has truly ended? When conservative and libertarian students engage in as much free-riding and factional in-fighting as liberal ones do today:)!

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The Trouble With Diversity:

This is a very interesting book, written by a man of the Left (Professor Walter Benn Michaels) arguing that the current focus on "identity" and "diversity" has stripped the Left of its willingness and ability to fight economic inequality. He certainly has a point; the book brought to mind recollections of my days at Yale Law School, where many students spent immense amounts of time and energy on trying to encourage "diversity" policies at the law school, all of which would benefit the already privileged, while pretty much ignoring the rampant poverty surrounding them every day in New Haven. I also more generally noted a distinct lack of interest more generally in the sorts of "bread and butter" issues that would have occupied liberal students' forebears in prior generations. Regardless of whether one thinks that diversity policies are a good idea or a bad idea, it would be hard to argue that they haven't distracted the American left, especially at the elite level, from the socialist (or merely redistributionist) project.

Supreme Court Allows Voter ID Law: Surprising action on a Friday afternoon from the Supreme Court: The Court vacated the Ninth Circuit's order that had enjoined Arizona's Voter ID law: the 6 page per curiam opinion is here. The gist of the Supreme Court's decision is that the Ninth Circuit enjoined the voter ID law with an entirely unreasoned 4-sentence order, and this was a no-no:

Faced with an application to enjoin operation of voter identification procedures just weeks before an election, the Court of Appeals was required to weigh, in addition to the harms attendant upon issuance or nonissuance of aninjunction, considerations specific to election cases and its own institutional procedures. Court orders affectingelections, especially conflicting orders, can themselvesresult in voter confusion and consequent incentive toremain away from the polls. As an election draws closer, that risk will increase. So the Court of Appeals may havedeemed this consideration to be grounds for prompt action. Furthermore, it might have given some weight to thepossibility that the nonprevailing parties would want to seek en banc review. In the Ninth Circuit that procedure, involving voting by all active judges and an en banc hearing by a court of 15, can consume further valuable time. These considerations, however, cannot be controlling here.It was still necessary, as a procedural matter, for the Court of Appeals to give deference to the discretion of the District Court. We find no indication that it did so, and we conclude this was error.

Although at the time the Court of Appeals issued its order the District Court had not yet made factual findings to which the Court of Appeals owed deference, see Fed. Rule Civ. Proc. 52(a), by failing to provide any factual findings or indeed any reasoning of its own the Court of Appeals left this Court in the position of evaluating the Court of Appeals’ bare order in light of the District Court’s ultimate findings. There has been no explanation given bythe Court of Appeals showing the ruling and findings ofthe District Court to be incorrect. In view of the impending election, the necessity for clear guidance to the State ofArizona, and our conclusion regarding the Court of Appeals’ issuance of the order we vacate the order of the Court of Appeals.

Thanks to Howard for the link.

  UPDATE: Perhaps the most interesting aspect to this case is that it reveals a continuing interest among the Justices in the workings of elections, even post Bush v. Gore. Here the Supreme Court treated a request for a stay as a cert petition, granted the petition, and reversed — that's something rare enough to seem sort of like a lightning bolt from above. Of course, we're dealing here with the Ninth Circuit, so maybe the Court's interest is narrower, but I wouldn't be surprised if the Court gets involved in more election cases in the future.

  Commentary from Rick Hasen is here.

  ANOTHER UPDATE: The Ninth Circuit's 2-judge order below is here, and was signed by Judges Tashima and Willie Fletcher.

Interesting First Amendment Case: The Ninth Circuit has struck down a Las Vegas ordinance banning solicitation in a five-block area of downtown on First Amendment grounds. The opinion by Judge Paez is here: ACLU v. City of Las Vegas. As I read the opinion, the court reasoned that banning only soliciting was a content-based restriction -- it allowed speech that didn't solicit, but banned speech that did -- thus triggering strict scrutiny that the law couldn't survive. Hat tip: How Appealing.

DOJ Moves Quick with MCA:

The Justice Department has notified a federal district court that it no longer has jurisdiction over nearly 200 habeas cases concerning detainees due to the passage of the Military Commissions Act.

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Young Republicans at Berkeley:

Today's WSJ has a story (link for subscribers only) on how young Republicans are "flourishing at liberal Berkeley." According to the story, the College Republicans chapter is among the largest student groups on campus, with over 600 members. While liberals still outnumber conservatives by a large margin on the campus, the story claims, the young Republicans are more unified, while liberal students are splintered.

The growth of the Berkeley College Republicans at one of the nation's most liberal campuses echoes some broader political trends. At Berkeley, while leftist students still dominate and outnumber conservatives, the liberal groups have splintered and are now spread across factions from the Cal Democrats to the International Socialist Organization to groups formed to oppose the war in Iraq. At the same time, several faculty members say, there are more conservative-leaning students than in the past, propelled by swells of patriotic feeling after events like Sept. 11 and an increase in the number of religious student groups.

The modus operandi of the Berkeley Republicans over the past few years has been to be provocative. In 2003, its members opposed affirmative action with an "Affirmative Action Bake Sale," where students paid for pastries on a sliding scale: White students were charged more, while Hispanics and African-Americans paid less. Under Mr. Prendergast's presidency, the group this year protested the People for the Ethical Treatment of Animals, or PETA, by giving away hot dogs and encouraging students to eat meat. Mr. Prendergast also held an "Anti Antiwar Rally" in nearby San Francisco, and staged a "Dunk a Republican" contest. The group gets several thousand dollars a year from the Berkeley student government. It also does its own fund raising and will sometimes get donations from local Republicans and others.

The story discusses the growth of the group, and closes with this cute anecdote from last year's annual student organization fair:

UC Berkeley Chancellor Robert Birgeneau walked by. When he saw President Reagan's cardboard figure, the chancellor chuckled and stopped to talk.

"I gave an interview to a British newspaper recently, and the journalist asked me about Berkeley's liberalism," said Mr. Birgeneau to the group. "I had to tell him that the largest student political group on campus is Republican. You should've seen him: He was so disappointed."

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Not Quite Invisible:

The NYT declares "Scientists Take a Step Toward Invisibility." Well, kinda. Some scientists have developed what could more accurately be described as a cloaking device in that it appears to deflect a given frequency of electromagnetic waves without generating distortions, shadows, etc. of the sort that could be detectable. In practical terms, as I understand the story, this could lead to a "cloaking" device that could make an object invisible to radar. Actual invisibility is still a long way off, however.

CNN Top Stories: I couldn't help but giggle at this list of the "top stories" at the top of CNN.com right now:

# CNNMoney: Dow closes on a high | Video Video
# CNN Exclusive: U.S. troops in snipers' line of fire Video
# 360° Blog: Why we aired sniper video; your reaction
# Priest admits fondling Foley | Video Video
# CNNMoney: Ex-NYSE chief ordered to repay millions
# McCartney vows vigorous divorce fight
# Stingray on boat stabs man in heart | Video Video
# Microsoft releases new Internet Explorer
# Funeral held for Anna Nicole Smith's son
# CNNU: Students learning to juggle school, politics
# Carmen Electra shows troupe how to lap dance Video

Congrats to CNN for managing to include Carmen Electra, Anna Nicole Smith, a celebrity divorce, fondling, violent videos, and animal attacks all on the same list. (Those CNNMoney stories sure seem kinda serious, though; are they really needed?)

Labor-management pop culture bleg:

Scenario: Workers are trying to do something collectively against their boss -- for example, get him to agree to some policy that benefits them -- but they have no union. They try to keep each other in line (prevent each other from working, induce each other to contribute money) by using informal sanctions, like ostracism or violence.

Is there some famous book or movie or other cultural text that deals with this?

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Looking Forward to a Republican Defeat?:

I don't blog about partisan politics that much, mostly because it doesn't interest me that much. I must say, however, that I'm not sorry the Republicans are poised to lose the House to the Democrats. The Republicans came in under a reformist platform in '94, and gradually lost their zeal for anything but reelection. By now, I can't think of a better advertisement for term limits than the Republican majority in the House, and I don't think I'll ever forgive Anthony Kennedy for his vote in U.S. Term Limits v. Thornton (declaring state-imposed term limits for federal office-holders unconstitutional), which was not only completely wrong on the merits, but allowed the culture of corruption (K Street, earmarks, etc.) and reelection-at-all-costs to transfer itself so quickly from the Democratic majority to the Republican majority, except that, by all indications, it has gotten worse. Twelve years of Republican control of the presidency from 1981 to 1993 led to a generation of lazy Republican sycophants who were more concerned about keeping their sinecures than in achieving any principled goals they had once believed in. The shock of defeat in '92 led directly to the Gingrich revolution, undone unfortunately because Gingrich was a much better revolutionary than leader (I still can't believe how he whined to the press about the seating arrangements on the airplane on the way back from Rabin's funeral, and I've never understood how he let Clinton get away with accusing the Republicans of "shutting down the government" when the Republicans actually passed a budget that Clinton vetoed!) Defeat for the Republicans in 2006 is even more richly deserved than in '92, and hopefully, if it does come, it will lead to a the emergence of a Repbulican presidential candidate in '08 and Congressional leaders who will restore some of the reformist fervor of the early Reagan and Gingrich years.

UPDATE: I should mention that I'm very disappointed that the Democrats haven't taken the opportunity to even remotely hint that they'll behave any better than the Republicans.

New York's Highest Court Adopts Mystery Scrutiny as the Test Under the State Constitution's Free Exercise Clause:

Catholic Charities v. Serio, decided today, rejects both Sherbert/Yoder strict scrutiny and Smith rational basis scrutiny in religious exemption cases, and instead says:

We now hold that substantial deference is due the Legislature, and that the party claiming an exemption bears the burden of showing that the challenged legislation, as applied to that party, is an unreasonable interference with religious freedom.... [T]he principle stated by the United States Supreme Court in Smith — that citizens are not excused by the Free Exercise Clause from complying with generally applicable and neutral laws, even ones offensive to their religious tenets — should be the usual, though not the invariable, rule....

[But] a rule that the Constitution never requires a religious exemption from generally applicable laws could lead to results plainly inconsistent with basic ideas of religious freedom: "Under the no-exemptions view . . . religious believers and institutions cannot challenge facially neutral legislation, no matter what effect it may have on their ability or freedom to practice their religious faith. Thus, a requirement that all witnesses must testify to facts within their knowledge bearing on a criminal prosecution . . . if applied without exception, could abrogate the confidentiality of the confessional. Similarly, a general prohibition of alcohol consumption could make the Christian sacrament of communion illegal, uniform regulation of meat preparation could put kosher slaughterhouses out of business, and prohibitions of discrimination on the basis of sex or marital status could end the male celibate priesthood." [Quoting then-Professor, now-Judge Michael McConnell.]

We find these hypothetical laws to be well beyond the bounds of constitutional acceptability. And we by no means exclude the possibility that, even in much less extreme cases, parties claiming an exemption from generally applicable and neutral laws will be able to show that the state has interfered unreasonably with their right to practice their religion.

The court then went on to conclude that in this case — which involved religious charities' objection to a law mandating that employers who provide prescription drug coverage include contraceptives — no exception was required, because of a mix of factors, including that "[though t]he burden the [law] places on plaintiffs' religious practices is a serious one, [the law] does not literally compel them to purchase contraceptive coverage for their employees, in violation of their religious beliefs; it only requires that policies that provide prescription drug coverage include coverage for contraceptives," that "[t]he employment relationship is a frequent subject of legislation, and when a religious organization chooses to hire non-believers it must, at least to some degree, be prepared to accept neutral regulations imposed to protect those employees' legitimate interests in doing what their own beliefs permit," and that "the State [has a] substantial interest in fostering equality between the sexes, and in providing women with better health care."

I generally think such a free-form, case-by-case decisionmaking process is indeed suitable — in fact, commonplace — when done as part of a common-law-making process, and would be proper for the legislature to authorize. Some state RFRAs could be read as effectively authorizing such a process (though, as I argue here, their use of the language of strict scrutiny poses some problems). Under the RFRAs, courts make decisions about exemptions considering (as with the making of the common law of torts, property, contracts, and the like) a wide range of factors; and then legislatures may revise those decisions if they think the various factors ultimately point in the other direction.

Where constitutional decisionmaking is considered, such a free-form approach strikes me as more troublesome; but it's hard to tell for sure until we get some better sense of how courts end up applying it. Sounds like New York is on the threshold of what could be an interesting religious accommodation experiment.

Thanks to How Appealing for the pointer.

Angelina Jolie as Dagny Taggart?

Variety reports that efforts to bring Atlas Shrugged to the big screen are underway. Randall Wallace ("Braveheart," "We Were Soldiers") is apparently at work on a script and Angelina Jolie has signed on to star in the film. (Link via AICN)

Republican Futures on the IEM:

A reader points me to the latest on the Iowa Electronic Market which shows things going downhill fast for Republicans in this fall's election. Chart on the expected probability that Republicans lose the House, for instance, is here.

A Different Take on the New Internet Gambling Law: I haven't followed the new Internet gambling legislation closely, but I did have a few thoughts in response to David's post below. I'm not sure if the law is a good idea or a bad idea, but I don't have the same reaction to it as David does. Let me respond to David's points in sequence, with David's points in italics and mine following:

  1. First, it will not work. It is already not that difficult to evade the law's restrictions . . . [and] I guarantee you that it will be a whole lot easier a year or two down the road.

  Isn't the question marginal impact, not absolute impact? Laws may still work even if they are easy to circumvent: partial compliance may make the law a success relative to the world without the law. For example, speeding laws "don't work" in the sense that people still speed, but they "do work" in the sense that people drive more slowly becase such laws exist. The question is whether this law will have the same sort of impact.

  2. [The new law] perpetuates a truly insidious form of State regulation that would be laughable if it were not so nasty. There's a very good reason that Jack Abramoff's client list consisted primarily of people in the gambling business — there are prodigious opportunities for monopoly rent-seeking in the current regulatory scheme.

  I agree that the gambling industry seems pretty nasty, and I think legalizing Internet gambling may indeed be preferable to trying to prohibit it. (Those are my instincts, at least.) At the same time, my understanding is that the real prohibitions here are the traditional state law prohibitions: the federal law harnesses state law, and the latest law tries to help enforce those state laws. So I would think the answer, if you want to gamble, is to lobby your state legislature to make it legal to gamble.

  3. [T]o the extent that there really are people for whom gambling is a real addiction that is destroying their lives, this will insure that they go underground (see point 1) and find ways (which will be readily at hand) to gamble in untraceable ways.

  I'm not sure I follow this argument. If you are gambling online one way or the other, what does it mean to gamble online "undergound"? Is there an "above ground" form of Internet gambling? I agree that the law may push people to use less reliable and traceable services, but I gather that's part of the point: some people will be deterred by having to use underground services that may not be reliable.

  4. It is incomprehensible gibberish. . . . When law becomes incomprehensible to those supposedly subject to it, it ceases to be law anymore, at least in my book.

   I agree that the law is complex, but is it more complex than most federal statutes? And while simple laws are good, what is the source of the principle that law must be comprehensible to a layperson before it can be recognized as law? I find the tax code pretty incomprehensible, but I still have to pay taxes.

  5. It discriminates, in a rather nasty way, against the poor — it doesn't stop anyone from going to Las Vegas to do all the gambling they wish, but if they want to do that without the expense of traveling, no go.

  Under that definition, don't most legal prohibitions discriminate against the poor? Consider speeding laws. If you want to drive 150mph, you need a fast car and either access to a private track or a trip to Germany. Does this mean that speeding laws discriminate against the poor?

  6. It is protectionist (and quite probably a violation of our international obligations under the GATT) — the whole purpose is to disadvantage overseas businesses and advantage domestic providers.

  I'm not so sure about the protectionist point, but the GATS question seems very much worth considering. See Christine Hurt's posts at the Conglomerate here.

  7. It is unconstitutional. . . . [I]t would clearly be an abridgement of my constitutional right to travel for Congress to pass a statute prohibiting me from going to the UK and participating in (legal) gambling while I was there. The Act, in practical effect, does the same thing. I know it's not really "travel" when one "goes" to an offshore website. But the rationale behind the constitutional right, it seems to me, is as applicable here as in the "physical travel" realm.

  I disagree. First, the Supreme Court has stressed that international travel is different from interstate travel. As Court stated in Haig v. Agee, 453 U.S. 280, 306-07 (1981):

[T]his court has often pointed out the crucial difference between the freedom to travel internationally and the right of interstate travel. The constitutional right of interstate travel is virtually unqualified. By contrast the "right" of international travel has been considered to be no more than an aspect of the "liberty" protected by the Due Process Clause of the Fifth Amendment. As such this "right," the Court has held, can be regulated within the bounds of due process.

The constitutional difference between interstate and international travel explains why there are lots of U.S laws that prohibit extraterroritorial conduct that is legal in the country where it occurs.

Second, I can't think of authority for the view that accessing a server is the functional equivalent of traveling to the physical location of the server. A gambling site is a service, not a place. Think of how this might work at a state level. Imagine state A has a broad gambling ban, which includes a ban on gambling from inside the state using servers in other states. Is this a violation of the constitutional right to travel of the citizens of A on the ground that this blocks them from "virtually traveling" to the other state to place their bets online? Presumably the answer is no, and this is the same idea just on a national scale instead of a state scale.

UPDATE: I see that David has updated his post with a new one while I was writing mine. Just a quick response: If one state allowed Internet gambling, I think it probably would still be illegal for people in other states to connect to that one state and then to the server abroad. The reason is that gambling laws generally regulate conduct in their home states, even conduct from home states that involve communication with other states. Thus, placing a bet using a server in another state is not placing a bet "in" that other state, where it is legal, but rather is placing a bet from the home state to the other state, which probably is still illegal under state law. See, e.g., United States v. Cohen, 260 F.3d 68 (2d Cir. 2001.)

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Reckoning with Rapanos:

I recently completed a short article summarizing my initial views on the implications of United States v. Rapanos. The article, "Reckoning with Rapanos: Revisiting “Waters of The United States” and the Limits of Federal Wetland Regulation," is largely based upon my Congressional testimony, and will be published later this fall in the Missouri Environmental Law and Policy Review (MELPR) (Vol. 14, No. 1, 2006). In the meantime, it is available on SSRN here, and I've reproduced the abstract below:

Rapanos v. United States is the latest episode in the serial effort to identify the precise meaning of “waters of the United States” under the Clean Water Act. Although no single opinion in Rapanos commanded a majority of the Court, the Court delivered a discernible holding. Specifically, the Court held that the CWA jurisdiction over private lands is limited, and reaffirmed that federal regulatory authority only extends to those wetlands that have a “significant nexus” to navigable waters of the United States. While there is a clear holding in Rapanos, the lack of majority opinion will ensure continued litigation and uncertainty over the precise scope of federal regulatory authority under the CWA. Already, lower courts are adopting variable interpretations of the decision. Whether Rapanos results in an erosion of environmental protection will be a function of how various institutions and entities respond. Under Rapanos federal regulatory officials retain substantial leeway to define “waters of the United States” in expansive terms. The decision may also spur state and local governments to enhance their conservation efforts and induce policymakers at all levels of government to pursue more non-regulatory conservation strategies.

I have nothing substantive to say

right now, but I just wanted to claim the post-Post post.

Hello, I'm David, and I'm an Internet Gambler:

I know there are more important things going on in the world, but the Internet Gambling Enforcement Act of 2006, recently signed into law, really has me steamed. And not only because it has caused one (but, fortunately, only one) of my internet gambling sites to close out my account.
There are many grounds upon which one might say that particular laws are "bad," and this one seems to have all of them in one package. Let's see, where to begin? ...
First, it will not work. It is already not that difficult to evade the law's restrictions — if you get some form of e-cash, you can transfer that to and from offshore gambling sites without restriction. It's not all that easy now to do that — but I guarantee you that it will be a whole lot easier a year or two down the road. Duh.
I'd gladly stake $100 on the following proposition:

"The total dollar volume of online offshore gambling originating in the U.S. will be substantially greater in 2011 than it is in 2006."

If there's anybody out there silly enough to want to take me up on that and to $100 on the other side, let me know.
Second, it perpetuates a truly insidious form of State regulation that would be laughable if it were not so nasty. There's a very good reason that Jack Abramoff's client list consisted primarily of people in the gambling business — there are prodigious opportunities for monopoly rent-seeking in the current regulatory scheme. Like: get yourself designated an Indian tribe, and you're on your way to riches. Third: to the extent that there really are people for whom gambling is a real addiction that is destroying their lives, this will insure that they go underground (see point 1) and find ways (which will be readily at hand) to gamble in untraceable ways.
Fourth: It is incomprehensible gibberish. Take a look at the law and try to read it and understand it. Really. This is your law, after all (at least, for those of you logging in from the US). Yet I suspect that there isn't one person in a thousand who could make sense of this document in a reasonable period of time. What does it mean? When law becomes incomprehensible to those supposedly subject to it, it ceases to be law anymore, at least in my book ...
Fifth: It discriminates, in a rather nasty way, against the poor — it doesn't stop anyone from going to Las Vegas to do all the gambling they wish, but if they want to do that without the expense of traveling, no go. Sixth: It is protectionist (and quite probably a violation of our international obligations under the GATT) — the whole purpose is to disadvantage overseas businesses and advantage domestic providers.
Seventh: it is unconstitutional. Well, I'm not so sure about this one, I admit. But here's my argument: it would clearly be an abridgement of my constitutional right to travel for Congress to pass a statute prohibiting me from going to the UK and participating in (legal) gambling while I was there. The Act, in practical effect, does the same thing. I know it's not really "travel" when one "goes" to an offshore website. But the rationale behind the constitutional right, it seems to me, is as applicable here as in the "physical travel" realm.

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The Message of the MCA:

In a WSJ op-ed, John Yoo argues that Congress sent a message to the Supreme Court with the passage of the Military Commissions Act: Mind your own business and leave the war on terror alone. In this regard, Yoo argues, the law was, above all else, a "stinging rebuke" to the Supreme Court, particularly insofar as it limited federal court jurisdiction over certain claims. "In the struggle for power between the three branches of government, it is not the presidency that 'won.' Instead, it is the judiciary that lost."

Marty Lederman comments on the Yoo op-ed here. Among other things, Lederman notes:

John unabashedly celebrates [the legislation's court-stripping provisions]. But he doesn't give much of a justification for it, except that he does not like the idea of the courts reviewing the legality of the Executive's actions in wartime. There is a certain irony in this, given the source: This is, after all, the lawyer who has most aggressively promoted the view that notwithstanding all of its war-related article I powers, Congress is entirely disabled from regulating the Executive's wartime decisions. And yet he not only thinks that Congress can strip the courts of their constitutional functions in wartime -- he positively revels in it.

Both the Yoo article and Lederman commentary are must reads for those interested in this subject.

More commentary from Ann Althouse here.

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DOJ Moves Quick with MCA:
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Too Much, Too Late:

As one of the two most recently tenured faculty members at Case, I've noticed that the volume of law porn has skyrocketed this year. Well, this is just a little note to let those who produce and mail these things that I sent in my U.S. News ballot last week, so you can stop sending me so much stuff.

UPDATE: Gordon Smith has more to say about law porn here, and Glenn Reynolds adds his two cents here.

Warming Practices Heat Up:

This story from The Recorder on Law.com notes that law firms are beginning to develop practice groups to specialize on the legal issues related to climate change.

While scientists ponder how quickly the polar ice cap will become a tropical resort -- and California turns the heat up on the auto industry -- law firms are starting to wave their green flags.

Soon after California Attorney General Bill Lockyer announced he was suing carmakers over vehicle pollution, and the state passed a new law to limit greenhouse gas emissions, Pillsbury Winthrop Shaw Pittman announced it was putting together a new climate change and sustainability practice group. And Morrison & Foerster announced an event to discuss the new Global Warming Solutions Act.

One consequence of this is that the number of professionals with a vested interest in complex and costly climate change policies will increase. Just as many tax lawyers and lobbyists are predisposed to oppose a dramatic simplification of the tax code, in my experience, few practicing environmental lawyers and lobbyists spend much effort trying to significantly simplify environmental regulation -- and this is true even (perhaps especially) if their clients are regulated firms.

Can Diesels Make It in America?

Diesel engines for passenger vehicles have been popular in Europe for a while, in part due to tax policies that encourage their use. At present diesels account for about half of passenger vehicles sold over there. In the U.S., however, the diesel share of the market registers in the low single digits.

One benefit of diesel engines is that they can deliver more miles per gallon. A downside is that diesel fuel tends to be dirtier, generating greater particulate emissions. This week, however, the EPA's new regulations requiring a dramatic reduction (97 percent) in the sulfur content of diesel fuel took effect. As the Washington Post reports today:

The change promises to significantly cut air pollution caused by diesel emissions. Regulators say high concentrations of sulfur in the old diesel fuel poison the engine systems that clean exhaust of harmful pollutants. The biggest concern is particulate matter, one of the byproducts of engine combustion, said Margo Oge, director of the EPA's office of transportation and air quality.

According to the story, automakers may respond by introducing more diesel models.

Detroit automakers have pledged to expand diesel offerings, particularly in pickup trucks. J.D. Power and Associates projects that the diesel share of light-vehicle sales is expected to increase to more than 10 percent by the middle of the next decade from 3.2 percent in 2005. Japanese automakers are also stepping up development of diesel technology.

It will be interesting to see how consumers respond, and gas prices may play a role. With gas prices having settled (at least for the moment), U.S. consumers may be less eager to give diesels another chance.

The Reconstruction of Professor Bainbridge:

Professor Bainbridge is doing a "major rethink" of his blog. Details here. Stay tuned.

The Spoils of November:

What if the Democrats take over Congress? It's no big deal, argues Bruce Bartlett in today's New York Times.

As a Republican, I have a message for those fearful of Democratic control: don’t worry. Nothing dreadful is going to happen. Liberals have much less to gain than they believe. . . . President Bush will still occupy the White House for the next two years. And although his veto pen may have been misplaced for most of the last six years, he found it again this summer.

For another thing, Democrats are unlikely to get more than a very thin majority in the House. If they get the Senate as well, it will not be with more than a one-vote margin. Consequently, effective control will be in the hands of moderates who often work with Republicans on specific issues. . . .

Democrats may have more success using Congressional committees to investigate accusations of wrongdoing by the Bush administration, but that will be much harder than they think. The Republicans cut thousands of committee staff positions when they took control, and it will take considerable time to find the money and staff to do any serious investigating. . . .

The only thing left to worry about is expiration of the Bush tax cuts, which Democrats will certainly not want to extend. But most of them don’t expire until 2010, so there is no urgency. Anyway, there is no certainty that continued Republican control of Congress would assure extension of the tax cuts. If party control were all that mattered, they would have been extended already.

Daniel Drezner adds some thoughts here.

When Will U.S. Troops Leave Iraq?: The U.S. invaded Iraq three and half years ago, in March 2003, and there has been a lot of discussion on when U.S. troops might leave Iraq. Some people think the troops should leave relatively soon; others say we need to wait until the situation has stabilized and democracy has taken root; and others have other approaches.

I wonder though: What is your best guess for when U.S. troops actually will leave? To be clear, I'm not asking when you think troops should leave, but rather when they will leave, whether rightly or wrongly. In particular, what year do you think that will be? Will U.S. troops leave in 2007? 2008? 2009? 2010? 2011? 2012? Some year after that?

UPDATE: Feel free to focus on when most troops will leave, not all.

Slavishly:

Republican Maryland Senate candidate Michael Steele, who's black, is taking umbrage at Maryland Congressman Steny Hoyer's comment that Steele has had "a career of slavishly supporting the Republican Party." The comment is "racist," Steele says.

This isn't quite L.A. County's demand that the terms "master" and "slave," used to refer to computer equipment, be expurgated from County-owned computers. It's at least possible that Hoyer was trying to make the "oreo" charge (which had been made by a staffer for Steele's opponent); such a charge is indeed racist, because it holds black candidates to a "loyalty to his race" standard that white candidates are not held to (and that nobody should be held to).

But that's all it is -- possible. Before you make an accusation of racism, it seems to me, you should have more evidence than just that someone had used the word "slavishly" (or "niggardly" or whatever else), coupled with the possibility that maybe he had bad intentions. That's true if you're someone on the Left who's trying to cast what is facially a perfectly legitimate, nonracist substantive argument as having racist motivations or being filled with supposed "racist code words." And it's true if you're someone on the Right who's trying to do the same.

Was Langdell a Formalist?: Following up on yesterday's post about Langdell's Contracts casebook, I wanted to point out a very interesting article I have come across that argues that Langdell wasn't much of a legal formalist. He was actually part of the move towards legal realism, the author argues, but is remembered as a formalist because he was caricatured by legal realists who needed to engage in the ritual slaying of the elders. The article is Marcia Speziale, Langdell's Concept of Law as Science: The Beginning of Anti-Formalism in American Legal Theory, 5 Vt. L. Rev. 1 (1980).

Here is the introduction:

  The caricature we have of Christopher Langdell shows him as an arid conceptualist, a "brilliant neurotic" whose spirit choked legal education; or not even that: "an essentially stupid man who, early in his life, hit on one great idea to which, thereafter, he clung with all the tenacity of genius." Having said that law should be studied by way of cases, piercing them for principles, Langdell was jokingly called a "legal theologian." Having said that the lawyer's library was his research laboratory and that the university was a proper place for legal study, Langdell came to be seen as a dry logician, "divorced from society and life." Such a Langdell was a wonderful formalist target for the skeptical Realists who sought to apply the behavioral sciences to law and for those who stressed the dynamism of the legal process in society. Not only has the memory of Christopher Columbus Langdell suffered from this distorted exaggeration, but so has our understanding of American legal thought.
  For the people who lived in the late nineteenth century, science was anything but a superstructure of absolute natural laws. In 1849 Darwin had declared that species originate by chance variation--evolution--and this idea was widely embraced by scientists and lay persons alike. Empiricism and the formulation of working hypotheses prevailed as the scientific method, replacing the monistic notion of a rationally connected universe.
  If we look at Langdell in this late-nineteenth-century context, the caricature of "Langdellianism" begins to crumble. In keeping with the spirit of his age, he entreated law students to go to the original sources of law and apply the scientific method. He refused to lecture (thereby implicitly rejecting the notion that a professor could impart knowledge of the law via fixed, true maxims), instead inviting students to journey with him through the sea of cases. The principal occupation in his classroom was the endeavor to extrac the essences of judicial opinions and to discern patterns among them. Nothing that he did or said was inconsistent with the positivist approach to law that sees rules as constructs of cases and predictions of future decisions. Langdell never directly said so, but he may have ascribed to organicism; Langdell may have been asserting that the law grows and develops by cases which we perceive in configurations, but which have nothing to do with an immutable absolute.
  The crystallized picture of Langdell as a formalist believer in true, discoverable legal order obscures the empirical Langdell, who threw over dry lectures and fixed maxims in favor of reading and discussing cases — a learning approach more akin to the everyday practice of law. If he was not the very first legal realist, Christopher Langdell must at least be seen as the bridge from formalism to what caime later in American legal theory.

I also came across a terrific historiography of Langdell, which discusses how scholars have imagined Langdell and is pretty dismissive of the legal realist's vision of Langdell as the super-formalist. See Bruce A. Kimball, The Langdell Problem: Historicizing the Century of Historiography, 1906-2000s, 22 Law & Hist. Rev. 277 (2004). Kimball wonders how the "common wisdom" on Landgell could be so far off of the reality, and how so many would caricature Langell without looking at what he actually said:

[H]ow and why has the century of scholarship on Langdell overlooked the majority of original sources that would normally be considered in a scholarly analysis of a historical figure and, instead, consulted a small and selective base of evidence? Many of the most influential statements in Langdell historiography have come from scholars who have studied or taught at Harvard or Yale. Yet, it seems that none, until very recently, has ever surveyed the archives in the most obvious and readily accessible place--Harvard Law School--for original writings by Langdell. Over the past fifty years, this kind of survey has been undertaken about Joseph Story, O. W. Holmes, Jr., Louis Brandeis, Learned Hand, Felix Frankfurter, Roscoe Pound, to name a few. Why has the received view of Langdell, founded upon a little selective evidence, gained such monumental authority?
This essay . . . [argues] that the neglect of sources has been obscured through a process of sedimentation in the published scholarship. This sedimentation occurred, I argue, because the received view of Langdell served various purposes of legal scholars at different points during the past century.

Fascinating.

Bangladeshi Editor Facing Attack by (Seemingly Government-Linked) Mob, Criminal Trial, and Possibly the Death Penalty for Advocating Ties With Israel:

The Jerusalem Post reports:

A Muslim journalist facing charges of sedition for advocating ties with Israel was recently attacked and beaten by a crowd in Bangladesh that allegedly included leading officials of the country's ruling party, The Jerusalem Post has learned.

Salah Uddin Shoaib Choudhury, editor of the Weekly Blitz newspaper, an English-language publication based in the Bangladeshi capital of Dhaka, was working in his office on October 5 when nearly 40 people stormed the premises.

The mob beat Choudhury, leaving him with a fractured ankle, and looted cash that was kept in the company safe.... According to a statement appearing on the Web site of the Weekly Blitz, the attackers were led by Helal Khan, international affairs secretary of Jasas, and included Babul Ahmed, Jasas's secretary-general. Jasas is the cultural wing of the ruling Bangladeshi National Party (BNP)....

In a photo taken shortly after the incident that was obtained exclusively by the Post, Choudhury can be seen hunched over a table wearing a torn shirt while a Bangladeshi policeman dressed in blue chats with two BNP officials. Both officials took part in the attack.

No arrests were made, and police refused to allow Choudhury to file charges against his attackers.

As the Post first reported last month, Bangladesh is moving forward with plans to try Choudhury on charges of blasphemy, sedition, treason and espionage in connection with his articles critical of Islamic extremism and favorable to Israel.... If convicted, Choudhury faces the death penalty....

Recall that Bangladesh, though not much in the news in the U.S., is the seventh most populous country in the world, has the fourth largest Muslim community, and is the third most populous Muslim-run country (after Indonesia and Pakistan). Thanks to lawprof Steve Lubet for the pointer.

Another religious accommodation controversy in Minneapolis:

Over the objections of the transit union, Minneapolis transit authorities have exempted a bus driver from operating a bus that carried a large external ad for a gay magazine. The full story is here. Excerpts:

A city bus driver who complained about a gay-themed ad got official permission not to drive any bus that carries that ad, according to an internal memo confirmed Tuesday by Metro Transit.

Transit authorities call it a reasonable accommodation to the driver's religious beliefs.

Amalgamated Transit Unit Local 1005 officials at the bus company say it condones intolerance; besides, drivers never have been excused from other buses carrying ads they found objectionable - from political candidates to pink bras.

Requests for religion-based considerations are increasingly in the news, as workplace observers say more Americans bring their faiths to their jobs. A bank in Otsego, Minn., declares itself to be a Christian bank, for example. Some pharmacists want the right to refuse to fill contraceptive prescriptions.

Also, many Muslim taxi drivers at the Minneapolis-St. Paul International Airport refuse to accept passengers who are carrying alcohol.

The ad at the center of the Metro Transit flap is for Lavender, a local magazine for a GLBT (gay, lesbian, bisexual and transgendered) audience. It runs periodically on 50 city buses and carries a photo of a young man with the slogan, ''Unleash Your Inner Gay.'' . . .

''Our diversity office determined that we could make a simple, reasonable accommodation on religious ground by not assigning her (the driver) to one of the 25 buses - out of 150 - at the Nicollet garage,'' Metro Transit spokesman Bob Gibbons said.

''The decision has nothing to do with the content of the advertisement,'' he said. ''It has everything to do with the employee's religious beliefs.''...

Gibbons has no slippery-slope worries. Future requests will follow the same civil-rights law applied in this case, which says employers must accommodate an employee's religious beliefs unless it brings ''undue business hardship,'' he said.

Michelle Sommers, Local 1005 president, isn't so sure.

''Our union tries to represent all diversity - whether it be religion, cultural, race, sexual orientation, any of that,'' she said. ''And if you start saying this or that ad is inappropriate, you're offending other people, and that can create a difficult environment for people to work in....

Driving a bus doesn't mean you endorse the ads that cover it, Sommers said.

''The company sells ads to make money, and we need that,'' said Sommers. ''But the union does not agree with the decision to allow drivers to pick which bus they drive based on an advertisement.''

As I've written here before, I generally support accommodations for sincere religious objectors, at least where the accommodation can be made at no more than trivial cost to other legitimate public interests. These other public interests include administrative burdens and hardship to the class of people protected by the law (e.g., an antidiscrimination law). I could support an exemption for Catholic Charities of Boston from Massachusetts' antidiscrimination law because nobody could demonstrate that the burden of the exemption on gay couples seeking adoption would be anything more than trivial. I don't count as a more-than-trivial cost the symbolic damage done to the public interest in having everyone comply with the state's command, regardless of their sincere religious objections. As the cost of accommodation rises, my willingness to grant them decreases.

In this case, the public interest would be largely administrative in nature and appears to be no more than trivial in magnitude. If half the force of bus drivers refused to drive these buses, it would be a different case. We have no reason to believe, on the facts we have, that the driver's religious objections are not sincere, or that they are part of an orchestrated campaign to drive gay-themed ads off the city's buses.

But for a generous policy of accommodations to work in a diverse society, we must have some reasonable self-restraint on the part of potential objectors. I have seen the ads in question on buses around Minneapolis. The picture of the young man is not lewd, or even suggestive. It's far less sexual in nature than other ads I've seen on the sides of buses. The gay magazine it advertises is not pornographic; it covers news, arts, and entertainment. Nobody believes that bus drivers endorse the messages or products in the ads on the buses they drive. I doubt that even most religions that condemn homosexual acts would really require that an adherent not drive the bus under these circumstances.

Of course, a driver's particular religious faith may call her not to facilitate or promote in any way behavior regarded as sinful by her religion. Something like that may have been the case here. But again, I think that would be an exceptional position. Potential religious objectors must search their consciences in good faith to ask whether compliance (in this case, driving the bus to which you're assigned) really would violate a religious command to the contrary or whether doing so would simply make them uncomfortable. A policy of accommodation cannot work if objectors insist on a right to be made comfortable. Our society is much too diverse, religiously and otherwise, for that.

Keeping the culture war at a manageable level of conflict requires both sides to make some sacrifices. The state should accommodate religious objectors where the cost of doing so is small. But religious objectors should accommodate state interests where doing so is permissible, and does little more than make them uncomfortable. I am not sure either side is capable of this sort of self-restraint. So many people seem to want to turn up the volume and temperature by using every confrontation as a chance to accuse the other side of prejudice and bad faith. It doesn't have to be that way.

Related Posts (on one page):

More on that Minneapolis bus driver:
Another religious accommodation controversy in Minneapolis:

Iceland to Resume Whaling:

The New York Times reports that Iceland will resume commercial whaling, perhaps as early as this week. Iceland's Ministry of Fisheries maintains that the limited harvest of minke and fin whales will be sustainable.

The Iraq Casualty Numbers:

Daniel Davies is impressed with the Lancet study estimating 655,000 "excess" Iraqi casualties since the U.S.-led invasion. Based on his experience conducting surveys in Iraq, Steve E. Moore is not.

Of Moore's criticisms, the most significant seem to be 1) the relatively small number of cluster points used for the survey (which, he claims, is more important than the number of actual interviews in the sample); and 2) the failure to obtain demographic data on those interviewed so as to verify the representativeness of the survey sample.

the key to the validity of cluster sampling is to use enough cluster points. In their 2006 report, "Mortality after the 2003 invasion of Iraq: a cross-sectional sample survey," the Johns Hopkins team says it used 47 cluster points for their sample of 1,849 interviews. This is astonishing: I wouldn't survey a junior high school, no less an entire country, using only 47 cluster points.

Neither would anyone else. For its 2004 survey of Iraq, the United Nations Development Program (UNDP) used 2,200 cluster points of 10 interviews each for a total sample of 21,688. True, interviews are expensive and not everyone has the U.N.'s bank account. However, even for a similarly sized sample, that is an extraordinarily small number of cluster points. A 2005 survey conducted by ABC News, Time magazine, the BBC, NHK and Der Spiegel used 135 cluster points with a sample size of 1,711--almost three times that of the Johns Hopkins team for 93% of the sample size. . . .

With so few cluster points, it is highly unlikely the Johns Hopkins survey is representative of the population in Iraq. However, there is a definitive method of establishing if it is. Recording the gender, age, education and other demographic characteristics of the respondents allows a researcher to compare his survey results to a known demographic instrument, such as a census. . . .

while the gender and the age of the deceased were recorded in the 2006 Johns Hopkins study, nobody, according to Dr. Roberts, recorded demographic information for the living survey respondents. . . .

Without demographic information to assure a representative sample, there is no way anyone can prove--or disprove--that the Johns Hopkins estimate of Iraqi civilian deaths is accurate.

These are also criticisms that I have not seen responses to elsewhere (e.g. here). No charges of fraud here, just poor methodology.

I do not mean to diminish the tragedy of civilian Iraqi deaths. I agree with Moore that "there have been far too many deaths in Iraq by anyone's measure," and I certainly believe that the Bush Administration's poor policy decisions and execution bear a significant portion of the blame. Nonetheless, Moore seems to mount a serious challenge to the validity of the Lancet estimates.

UPDATE: Many commentators note that the realtively small number of clusters is accounted for in the study by providing a confidence interval — this is true, and it accounts for the huge range of estimates presented (plus-or-minus 40-some percent of the point estimate). So, while the study is evidence that mortality rates in Iraq have gone up post-invasion — a point I did not think was in dispute — it does not provide a particularly reliable estimate of excess deaths. Of course, as Frank Cross notes here, Iraq is not exactly the easiest place to perform this sort of study these days.

Tim Lambert offers additional responses to Moore's critique here.

Can You Tell a Sunni from a Shiite?: Tuesday's New York Times had this rather remarkable essay on the Opinions page.

Global Gun Prohibition Lobby: Ban Arms Sales to Israel

This summer, the United Nations review conference for the 2001 Programme of Action on Small Arms failed to reach an agreement for new global gun control rules. Although stymied on one front, the gun prohibition movement is moving forward elsewhere, pushing for a binding Arms Trade Treaty. The proposed treaty is currently being discussed at the United Nations by the First Committee (Disarmament and International Security) of the General Assembly.

The leading NGO lobbying for the Arms Trade Treaty is Control Arms, an organization created and directed by IANSA, Amnesty International, and Oxfam. Earlier this month, Control Arms released a major new report, Arms without Borders, which makes the case for the Arms Trade Treaty.

The report offers examples of arms transfers which, according to Control Arms, would be stopped by a global Arms Trade Treaty. Among the examples cited is the sale of Apache AH-64 helicopters to Israel (page 12). Control Arms notes an incident in which an Apache helicopter shot an automobile in Tyre, and that, according to Human Rights Watch, there was no evidence of Hezbollah activity in the vicinity. In response, Prof. Gerald Steinberg of Bar-Ilan University states that the HRW/Control Arms claims "contradict clear evidence of heavy Hizbullah presence and use of vehicles for transporting missiles and armed personnel."

Page 25 of the Control Arms report states:

Helicopters, combat aircraft and air-to-surface missiles supplied to Israel primarily by the USA, but often incorporating components supplied by other countries, have been used in the Occupied Territories resulting in hundreds of deaths and thousands of injuries, in apparent violation of international humanitarian law. According to Amnesty International, many of the 190 Palestinians killed in 2005 were 'killed unlawfully', including as a result of deliberate and reckless shooting, or attacks in densely populated residential areas. At the same time, Palestinian armed groups have used rockets, explosive belts and other bombs to kill and injure hundreds of Israelis.

Page 4 of the report includes a half-sentence criticizing Hezbollah for firing rockets at civilian targets in Israel. The Control Arms paper does not mention any problem about the international flow of arms to Syria. Iran is criticized for its arms sales to Sudan, but not for its supplying of arms to Hezbollah and to terrorist organizations in Iraq and Afghanistan.

The Control Arms paper presents, at best, a moral equivalence between Israel, Hezbollah, and Palestinian terrorists--all three of whom would, under the Arms Trade Treaty, theoretically be prevented from acquiring arms.

In future discussions of the Arms Trade Treaty, everyone should acknowledge that the Treaty is intended, according to its leading NGO sponsor, to create an arms embargo against Israel. A person who wants arms sales to Israel to remain legal under international law would be foolish to support the Arms Trade Treaty.

The General Assembly's First Committee meeting also covered other issues. Several delegates urged the First Committee to "stop the arms race in space," which is tantamount to asking for a ban on America's Strategic Defense Initiative.

UPDATE: Several commentators make the point that Israel has a robust domestic military industry, and therefore could survive an arms import embargo. The Control Arms folks are one step ahead; their paper emphasizes that the Arms Trade Treaty must include control of components as well as finished products. Control Arms is also very clear on requiring that the trade in dual-use materials (e.g., titanium which could be used for civilian products, or for arms) be banned, unless there are strong safeguards that the material will not be used for human rights violations (such as, in the view of Control Arms, Israel's current tactics in its wars against Hezbollah, Hamas, Islamic Jihad, al Aqsa, etc.).

The Control Arms report notes that Israel, like India, South Korea, and South Africa, among others, is an emerging arms exporter. The report offers no evidence that Israel has exported arms to any human rights violator. However, the report suggests that Israel and EU should both exert greater controls of the ultimate sale of Israeli or EU arms which are co-produced in India.

Rich Species, Poor Species:

From an official description of a University of New Mexico Law School class, Environmental Global Warming: "Global climate change is the major environmental threat of our era. Its effects are felt by all species, but especially on those who are poor..." I didn't realize that interspecies distribution of wealth is such a hot (no pun intended) issue! (Hat tip: Christina Hoff Sommers, who was too busy criticizing political bias at UNM Law to notice the humor in the line she quoted.)

The First Law School Casebook: The first law school casebook was Christopher Columbus Langdell's 1871 book, A Selection of Cases on the Law of Contracts, "Prepared for Use as a Text-Book in Harvard Law School," and published by Little, Brown (since bought by Aspen) in Boston. Although Langdell is often classified today as the archetypal formalist, for whom every question had a pure and doctrinally correct answer, it's actually hard to see that in his casebook. Langdell's contracts casebook was just that -- a selection of cases, without any commentary at all. The only commentary on his goals appears in the preface, in which Langdell explained why he thought the case method might work and why he thought it was helpful for law professors to teach from casebooks instead of treatises.

Most law school casebooks today are combinations of pre-Langdell treatises and post-Langdell selections of cases. Still, it's pretty interesting to read the preface to Langdell's book to get a feel for his thinking:

  I CANNOT better explain the design of this volume than by stating the circumstances which led me to undertake its preparation.
  I entered upon the duties of my present position, a year and a half ago, with a settled conviction that law could only be taught or learned effectively by means of cases in some form. I had entertained such an opinion ever since I knew any thing of the nature of law or of legal study; but it was chiefly through my experience as a learner that it was first formed, as well as subsequently strengthened and confirmed. Of teaching indeed, as a business, I was entirely without experience; nor had I given much consideration to that subject, except so far as proper methods of teaching are involved in proper methods of study.
  Now, however, I was called upon to consider directly the subject of teaching, not theoretically but practically, in connection with a large school, with its more or less complicated organization, its daily routine, and daily duties. I was expected to take a large class of pupils, meet them regularly from day to day, and give them systematic instruction in such branches of law as had been assigned to me. To accomplish this successfully, it was necessary, first, that the efforts of the pupils should go hand in hand with mine, that is, that they should study with direct reference to my instruction; secondly, that the study thus required of them should be of the kind from which they might reap the greatest and most lasting benefit; thirdly, that the instruction should be of such a character that the pupils might at least derive a greater advantage from attending it than from devoting the same time to private study.
  How could this threefold object be accomplished ? Only one mode occurred to me which seemed to hold out any reasonable prospect of success; and that was, to make a series of cases, carefully selected from the books of reports, the subject alike of study and instruction. But here I was met by what seemed at first to be an insuperable practical difficulty, namely, the want of books; for though it might be practicable, in case of private pupils having free access to a complete library, to refer them directly to the books of reports, such a course was quite out of the question with a large class, all of whom would want the same books at the same time. Nor would such a course be without great drawbacks and inconveniences, even in the case of a single pupil. As he would always have to go where the books were, and could only have access to them there during certain prescribed hours, it would be impossible for him to economize his time or work to the best advantage; and he would be liable to be constantly haunted by the apprehension that he was spending time, labor, and money in studying cases which would be inaccessible to him in after life.
  It was with a view to removing these obstacles, that I was first led to inquire into the feasibility of preparing and publishing such a selection of cases as would be adapted to my purpose as a teacher. The most important element in that inquiry was the great and rapidly increasing number of reported cases in every department of law. In view of this fact, was there any satisfactory principle upon which such a selection could be made?
  It seemed to me that there was. Law, considered as a science, consists of certain principles or doctrines. To have such a mastery of these as to be able to apply them with constant facility and certainty to the ever-tangled skein of human affairs, is what constitutes a true lawyer; and hence to acquire that mastery should be the business of every earnest student of law. Each of these doctrines has arrived at its present state by slow degrees; in other words, it is a growth, extending in many cases through centuries. This growth is to be traced in the main through a series of cases; and much the shortest and best, if not the only way of mastering the doctrine effectually is by studying the cases in which it is embodied. But the cases which are useful and necessary for this purpose at the present day bear an exceedingly small proportion to all that have been reported. The vast majority are useless and worse than useless for any purpose of systematic study. Moreover, the number of fundamental legal doctrines is much less than is commonly supposed; the many different guises in which the same doctrine is constantly making its appearance, and the great extent to which legal treatises are a repetition of each other, being the cause of much misapprehension. If these doctrines could be so classified and arranged that each should be found in its proper place, and nowhere else, they would cease to be formidable from their number. It seemed to me, therefore, to be possible to take such a branch of the law as Contracts, for example, and, without exceeding comparatively moderate limits, to select, classify, and arrange all the cases which had contributed in any important degree to the growth, development, or establishment of any of its essential doctrines; and that such a work could not fail to be of material service to all who desire to study that branch of law systematically and in its original sources.
  It is upon this principle that the present volume has been prepared. It begins the subject of Contracts, and embraces the important topics of Mutual Consent, Consideration, and Conditional Contracts. Though complete in itself, it is my expectation that it will be followed by other volumes upon the same plan; but I have as yet formed go definite opinion as to how far the design will be carried. A volume upon Sales of Personal Property is more than half completed, and will be published within a few months.
   C. C. LANGDELL.
   CAMBRIDGE, Oct. 1, 1871.

Marquette:

I'm nearing the end of a very pleasant two-day visit to Marquette Law School; I gave two of my favorite talks yesterday -- my Academic Legal Writing talk to the local law review students over lunch and my Slippery Slopes talk as the Boden Lecture in the early evening. I'll be presenting my new Medical Self-Defense piece at a faculty workshop over lunch, and then heading home. Many thanks to Marquette for their very kind invitation.

Irving = Isaiah?

Talking about Isaiah Berlin the other day, I almost said Irving Berlin. But has anyone ever seen them together?

For instance, consider the lost first draft of the lyrics to the American standard "Let Yourself Go" from Follow the Fleet. (Note: Before doing this, you may want to read the comments to this post.)

Man's
Crooked timber
Means that all things built are limber
Nichts Gerades wird gezimmer'
Let yourself go

I'm just saying, is all.

Related Posts (on one page):

Law School Podcasts: The California Western School of Law in San Diego recently started a series of short podcasts on legal developments, Law in 10. As explained in an article in the San Diego Business Journal, a major goal of the podcasts is to appeal to today's college-age students:

David Bowers, Cal Western’s assistant dean for external affairs, said although a handful of other law schools use podcasts for lectures and speaking events, it is one of the first law schools to offer a weekly news commentary.

The college anticipates appealing to a new generation of prospective students who are fully immersed in technology and to "news junkie" legal professionals at the national and international levels.

"Our purpose in launching this effort is to introduce our faculty members to 'Gen iPod,' the 19- to 24-year-old college student with an interest in legal issues," said Bowers. "We believe others will develop an interest as well."

Can any 19- to 24-year-old students who are members of "Gen iPod" comment on whether something like this is indeed appealing? I suspect more schools are going to offer services like this, and it would be interesting to know how receptive the intended audience is.

Hat tip: JD2B.

U.S. Casualties in Iraq: I check in from time to time with icasualties.org, one of several sites that keeps tabs on the number of casualties in the war in Iraq. As you may have realized from news stories, the last few weeks have been very tough for U.S. troops: In just the last two weeks, we've lost 59 soldiers and 776 have been wounded, about double the rate typical over the last year or so.

You can see a chart of monthly deaths of U.S. troops here. As the chart shows, 2,772 U.S. troops have been killed in Iraq since the beginning of the war. A chart of the number of U.S. troops wounded by month is here. According to the site, over 20,000 American soldiers have been wounded in the war.

All of the figures are based on information provided by the Defense Department.

French Public Ready to Crack Down on Criminals:

A pair of articles from the Sept. 30-Oct. 6 issue of France-Amerique (Le Figaro's American weekly) offer some cause for hope that France is getting ready to pull itself out of its downward spiral. Last November, Interior Minister Nicolas Sarkozy referred to the young rioters in the French housing projects as "racaille" ("scum" or "rabble"). At time, the chattering classes were outraged, in part because the racaille that Sarkozy was talking about were almost all immigrants (or children of immigrants) from North Africa or West Africa. But the racaille remark turned out not to be a mega-gaffe, as the intelligentsia had predicted. To the contrary, Sarkozy's tough talk about youthful criminals has proved to be enormously popular. A new poll shows that 77% of the French public (including 74% of persons aged 18-24) agree that the French system is too lenient on juvenile delinquents. The agreements cuts across all demographics and party lines.

Le Figaro suggests that the racaille comment was a brilliant, deliberate political move by Sarkozy: while many French citizens realize that France's statist economic system needs to liberalize, they are reluctant to confront the issue publicly. By proposing crack-downs on young criminals, Sarkozy has made himself the leader on a topic of national near-consensus, and thereby shifted the focus away from his economic ideas. Le Figaro credits Sarkozy for realizing that if the French want a their next president to be a mommy who will protect them from the outside world, Sarkozy will never be able to out-mommy Segolene Royal, the leading Socialist candidate (who, within the French Socialist Party context, leans to the right). Accordingly, Sarkozy is running as the daddy candidate, who will take control of the housing projects and suburbs which have been turned into criminal havens, beyond the reach of French law.

Sources: Alexis Brezet, "Sarkozy: le pari du peuple" & Judith Waintraub, "La justice n'est pas assez severe selon 77% des Francais."

Washington on the Connecticut:

Voting on the Dartmouth constitution referendum runs until the end of the month. I haven't posted much on this but have received many emails from both Dartmouth and non-Dartmouth readers who have expressed ongoing interest in the issue. For those interested in what has been going on the past few weeks, here's a quick rundown:

Joe Malchow describes the extraordinary political efforts being expended by those campaigning in favor of the constitution, including repeated telemarketing calls, push-polling, and negative campaigning. Quite interesting.

TJ Rodgers responded to the substance of the negative charges in an op-ed "Intolerance of Difference" and another set of baseless charges in another op-ed.

Peter Robinson recounts the remarkable events surrounding this video posted on You Tube about the debate. And I see that a new video with a similar "Vote No" theme has gone up on You Tube. The new video is especially catchy.

Finally, in a poll of student opinion at Dartmouth, 63% of those students expressing an opinion on the alumni constitution opposed it, and a recent letter signed by 120 undergraduates and recent alumni also expressed opposition to it.

For those who still haven't voted, about 2 weeks remain before the deadline. To answer a common question that I have received--in order for the new constitution to be ratified in will have to receive 2/3 vote. For those still making up your mind, I would urge you to vote "No" and have expressed my reasons why here and here.

Bleg for Constitutional Law Searches:

Tom Smith at The Right Coast is testing a new search engine and is asking constitutional lawyers and scholars to help him out by suggesting search strings:

I am testing a new kind of legal search engine, and I need lists of ideal search results to help. So, if you were searching for US Supreme Court cases on a given topic of law, using a search engine as you would if Google worked on case law, you would use a search consisting of a number of terms, and you would get back a list of cases.

The formatting seems to be a bit askew in the linked post, so make sure to scroll down to read the whole post.

Alliance for Justice Video: Via my cousin Nan Aron, I see that the left/liberal Alliance for Justice has released a 22-minute documentary film that takes on the conservative legal movement, Quiet Revolution (.wmv file). The video is kind of a mix between Cass Sunstein's Radicals in Robes and Herman Schwartz's Right Wing Justice with a bit of Article II sprinkled on at the end for seasoning. It features lots of prominent figures that many VC readers will recognize, including Harold Koh, Cass Sunstein, Drew Days, Barack Obama, and Dahlia Lithwick.

Perhaps the most interesting aspect of the video is that its left critique of the legal right is so similar to the traditional right critique of the legal left. You know the arguments: the other side wants to overturn precedent; they are judicial activists; they have a radical agenda; they want to depart from the Framers' vision of the Constitution; they are trying to get their unpopular political preferences enacted through the courts instead of the people, etc. Of course, readers will disagree on which side has it right, or whether either or both of them do, or even whether these criticisms make any sense at all. But the similar rhetoric is interesting.

My vote for the most over-the-top commenter probably goes to Slate/WaPo/NPR analyst Dahlia Lithwick, for her remarks delivered around the 3:30 mark:

What would happen if Clarence Thomas and Antonin Scalia got their way? What is their vision for America? And if you say to people what their vision is: Say goodbye to worker's rights. Say goodbye to environmental protection. Say goodbye to women's rights. Say goodbye to the rights of the disabled. Say goodbye to all the progress we've made in terms of race and gender in this country, and privacy.

I guess you could say this. I mean, it wouldn't be accurate, but hey, you could still say it.

UPDATE: A few commenters suggest that Lithwick's claim isn't entirely false, so let me explain a bit more. Lithwick is confusing two claims: (1) Right A would be different in some ways if a particular Justice had a majority, and (2) Right A wouldn't exist at all if that particular Justice had a majority. Justices Thomas and Scalia have stated their views as to the constitutional need for changes in the institutional choices as to which parts of government should provide certain important rights: In some cases, the issue has been state vs. federal, and in others, the issue has been legislatures vs. courts. But as far as I know, all of their views have related to institutional choice, not substantive rights. Thus (1) may be true but (2) is clearly false. I assume Lithwick knows this, and is simply exaggerating her claim to make it seem more powerful: If you want people to rally in opposition to a position, you want to make that position seem as dangerous as possible. But doing so often comes at a cost of accuracy, and I think it did so here.

Which popular musician do lawyers and judges quote the most?

The answer is here, along with a listing of the top ten.

Ch-ch-changes:

YouTube on British Conservative Party leader David Cameron and Prime Minister Tony Blair. Hat tip: Tom Palmer.

Foley and the Homophobic Mind:

Here's my take on one aspect of the scandal involving former Rep. Mark Foley. It's an excerpt from a somewhat longer column:

The Foley mess reaffirms some things we have long known about the nature and characteristics of anti-gay prejudice.

William Eskridge, a Yale law professor, has written that anti-gay prejudice has been marked historically by three characteristics. These are: (1) “hysterical demonization of gay people as dirty sexualized subhumans”; (2) “obsessional fears of gay people as conspiratorial and sexually predatory”; and (3) “narcissistic desires to reinforce stable heterosexual identity . . . by bashing gay people.” The primary historical traits of homophobia are thus hysteria, obsession, and narcissism.

We can see the first of these characteristics, hysteria, in some of the reactions to the Foley scandal. “While pro-homosexual activists like to claim that pedophilia is a completely distinct orientation from homosexuality, evidence shows a disproportionate overlap between the two,” declared Tony Perkins of the Family Research Council.

There is no good evidence of a link between homosexual orientation and pedophilia. Professional anti-homosexuals, like Perkins, often cite junk science to support their hysterical views of dangerous and hypersexualized homosexuals.

Ken Lucas, a Democrat running for Congress from Kentucky, said that Republican leaders should have closely monitored Foley simply because he’s gay. There was no more reason to watch over Foley because he’s gay than there was to supervise the other 530 or so members of Congress because they’re straight, but hysteria sees no inconsistency.

The second characteristic of anti-gay prejudice, obsession, has been on full display. Some Republicans in Congress and religious conservatives told reporters that they suspect a “gay subculture” has infiltrated the party. This “Velvet Mafia”—as some have called it—allegedly consists of a number of gay Republican congressional staffers and other personnel. A conservative website asserted that the gay conspiracy includes nine chiefs of staff, two press secretaries, and two directors of communications for prominent congressional Republicans.

The conspirators, the story went, included several gay Republican staff members who personally handled the Foley case. An especially irresponsible report by CBS News’s Gloria Borger recounted how the scandal had “caused a firestorm among GOP conservatives.” Without any rebuttal or fact-checking, Borger reported that conservatives “charge that a group of high-level gay Republican staffers were protecting a gay Republican congressman.” There is no evidence for this charge, and some pretty good evidence against it, but anti-gay websites quickly praised Borger for breaking the “PC barrier.”

This baseless fear of a gay mafia wielding enormous power undetected has a certain obsessional quality. It is deeply conspiratorial, fed by fantasies of gays as sexual predators.

Others—including Perkins, Newt Gingrich, Patrick Buchanan, and even the Wall Street Journal editorial page—suggested that Republican leaders were paralyzed from acting against Foley early on by fear of a pro-gay backlash. To believe this of GOP leaders—who have opposed every measure for gay equality—requires obsessional and conspiratorial delusion about the power and influence of the gay civil rights movement in America.

Finally, the Foley mess has demonstrated the third characteristic of anti-gay prejudice, narcissism. If the GOP loses one or both houses of Congress in November, one supposed lesson will be that the party was too lenient on homosexuals—turning off the party’s base of religious conservatives. Some thus see the scandal as a chance to cleanse the GOP of the impurity of homosexuality, to reassert the party’s stable, pro-family heterosexual identity.

Chances are that most Americans, including most Republicans, will reject the hysteria, obsession, and narcissism of anti-gay prejudice this mess has loosed upon us. Most GOP leaders have been careful to avoid drawing any of the “larger lessons” about gay people that professional anti-homosexuals would like us to learn.

The Foley scandal doesn’t say anything very important about America’s gays. But it says a lot about America’s anti-gays.

UPDATE: I had hoped it would go without saying that I do not believe that opposition to any gay-rights proposal is necessarily "homophobic," just as I do not believe that opposition to affirmative action is necessarily racist. Some opponents of gay marriage, for example, do so for essentially homophobic reasons (e.g., because of irrational fears and deep loathing of homosexuals), but many oppose it for non-homophobic reasons (e.g., because they presume strongly against all important change in an essential social institution). I have serious reservations about hate-crimes laws, for example, but not for homophobic reasons. Others oppose employment non-discrimination laws for libertarian reasons, which are not homophobic.

I agree with the commenters that "pedophilia" is not even an issue in the Foley case. That Perkins and others have used the Foley episode to resuscitate this old canard is another manifestation of homophobic hysteria in the reaction. If you're interested in further reading about the junk-science claims of the Family Research Council and others about a link between homosexual orientation and pedophilia, see Mark Pietrzyk's fine essay, "Homosexuality and Child Sexual Abuse: Science, Religion, and the Slippery Slope." See especially the section entitled, "Scientific Research on Pedophilia."

Fifth Circuit Decides Post-Kelo Eminent Domain Case:

The U.S. Court of Appeals for the Fifth Circuit Court has handed down its decision, in Western Seafood Co. v. City of Freeport, a noteworthy post-Kelo eminent domain case that I blogged about back in June (hat tip to Wright Gore, President of the Western Seafood Company). Western Seafood involves the condemnation of part of a property owner's lot for transfer to a neighboring business so that the latter can build a marina for the asserted purpose of promoting "economic development" in the area. As I expected, the court rejected the property owner's claim that this condemnation violates the Takings Clause of federal Constitution.

The Court's opinion on the federal issue is a fairly straightforward application of Kelo. In Kelo, the Supreme Court of course of course held that "economic development" is sufficient justification to allow condemnation of private property for transfer to a new private owner. Moreover, as I explained in detail in my previous post on Western Seafood, Kelo virtually immunizes from challenge any economic development condemnation that is undertaken pursuant to an "integrated redevelopment plan." Virtually all economic development takings - including that in Western Seafood - are undertaken as part of some sort of plan.

The Fifth Circuit did, however, remand the case to the District Court for further consideration of Western Seafood's claim that the taking violates the Texas state constitution. The opinion notes that Texas state courts use state legislation as a guide to interpretation of the state constitution's Takings Clause, and that Texas enacted a post-Kelo reform law after the District Court reached its initial decision rejecting Western Seafood's claim. It will be interesting to see how the District Court resolves the state constitutional issue. However, I am not terribly optimistic about Western Seafood's prospects. To the extent that state constitutional issue turns on the impact of the new Texas post-Kelo statute, it is likely to cut in favor of the government, since that statute does very little to constrain economic development takings (see my analysis of the Texas law in this paper, pp. 73-75).

Dangers of Moneyball Hiring in Academia:

Political scientist Daniel Drezner has responded to my post praising the use of Moneyball hiring methods in academia. As I noted in the earlier post, Moneyball academic hiring uses statistical and other scientific methods to identify undervalued scholars who are likely to be more productive than the rest of the market (which may rely on impressionistic hiring criteria) expects. In the same way, Oakland A's general manager Billy Beane has used statistical methods to identify undervalued baseball players and build a team that routinely outperforms competitors with much higher payrolls. My own school, George Mason University, has been one of the leaders in applying moneyball-like methods to hiring, and their use has been one of the causes of the school's rapid rise in the law school rankings over the last few years.

Drezner sees some merit in the Moneyball approach to academic hiring, but also posits two dangers:

1) In the end, you get poached. All approaches and areas of inquiry become fashionable at some point--even military historians. Once a department has attained a flush of prominence, the old standbys will come with their deep pockets to make lucrative free agent signings. The cream of a department's crop gets poached, leading to a slow decline.

The gain of a short-term boost might be worth the price of long-term backsliding, were it not for the second hazard of a Moneyball approach:

2) The risks of overspecialization. When a department hires a lot in a specialty or methodology that is currently unappreciated, they are essentially letting these scholars run the show. A history department dominated by military historians, a political science department dominated by postmodernists, or a law faculty dominated by critical legal theorists risks appearing unfriendly to good scholars from other traditions.

If departments overspecialize, they risk falling into a trap: they can only successfully recruit people from a particular scholarly tradition, but the best of those people will eventually be lured away to premier institutions. Because the social sciences tend to see cutting-edge scholarship emerge from different approaches over time, a department that specializes in one approach risks acquiring blinders about where the rest of the field is going.

I think that Drezner's points have some validity, but not as much as he suggests. There is most definitely a risk that a school with good scholars will be "poached" by higher-ranking institutions. But that is far better than the alternative of having scholars that higher-ranking institutions don't want to hire. As GMU Law School Dean Dan Polsby once put it: "Nobody wants a faculty that nobody wants!" A school that consistently applies Moneyball methods in its hiring processes should be able to find undervalued younger scholars as replacements for more senior faculty who get poached by higher-ranking schools. In the same way, Billy Beane found good replacements for numerous free agents whom the A's lost to teams with higher payrolls (e.g. - Jason Giambi, Johnny Damon, Keith Foulke, etc.). In fact, GMU Law School has itself lost quite a few faculty to higher-ranked law schools in recent years, but this has not (at least so far) prevented the school from continuing to improve. And the more a school rises in the rankings thanks to Moneyball methods, the lower the number of remaining higher-ranking schools that can hire its scholars away.

The danger of overspecialization is also a real one. However, the way to combat it is by applying the Moneyball approach more rigorously, not by giving up on it. A Moneyball-oriented school should be on the lookout for undervalued scholars who use a wide variety of methodologies, not just one or two. But if worse comes to worst and a Moneyball school does fall back in the rankings because it becomes overspecialized after an initial meteoric rise, that may still be better than the alternative of never having risen at all in the first place. As retired baseball players can attest, it's better to be a has-been than a never was.

Related Posts (on one page):

Dangers of Moneyball Hiring in Academia:
Some truly great moments in baseball history:
A Moneyball Victory:

Saturday, October 21, 2006

Friday, October 20, 2006

Thursday, October 19, 2006

Wednesday, October 18, 2006

Tuesday, October 17, 2006

Monday, October 16, 2006

Sunday, October 15, 2006