Republican leaders left behind just enough spending authority to keep the government operating through mid-February, less than halfway through the 2007 fiscal year that began Oct. 1. Democrats have signaled that when they take control of Congress in January they will extend that funding authority for the remainder of the year based largely on the previous year's spending levels, which will result in many cuts in programs.
"A lot of people will be left short," Rep. David R. Obey said.
The Democrats also will do something that is certain to anger many lawmakers but cheer critics of excessive government spending: They will wipe out thousands of lawmakers' pet projects, or earmarks, that have been a source of great controversy on Capitol Hill. In the past, lawmakers have peppered individual spending bills with earmarks benefiting special interests. But the funding resolution the Democrats intend to pass in lieu of spending bills will be devoid of earmarks.
Saturday, December 16, 2006
Julian Sanchez and Heather debate the important question of whether most DC men are "vanilla pansies that are scared to approach a woman in a bar." Some DC men might take offense at the mere mention of the possibility that most of us are "vanilla pansies." I, on the other hand, very much hope that it's true. The higher the percentage of vanilla pansies among my male competitors on the DC dating scene, the better the market outlook for me! I am much more concerned about news items such as the fact that this guy is back on the dating market, since he would be an extremely tough customer to beat out. Fortunately, he doesn't spend much time in DC (I hope). The more general point here is that anything that reduces the real or imagined average quality of men in a dating market actually benefits single men in that area and harms the women.
On a slightly more serious note, I doubt that "vanilla pansies" are really a major problem on the DC dating scene. At least in the middle and upper classes, a high percentage of DC residents are involved in politics. Politics is very much a "people business" that rewards outgoing personalities with strong social skills. Pansies (and also shrinking violets:)) are unlikely to be attracted to politics in disproportionate numbers and if they do enter the field, generally don't survive in it for very long. The women of DC are far more likely to be suffer from the attentions of overly aggressive political types than from an excess of pansies.
My latest media column for the Rocky Mountain News/Denver Post criticizes Colorado media for failing to cover Colorado Representative Tom Tancredo's exemplary work in support of a strong U.S. policy in defense of Taiwan's democracy and independence.
Those of us who write for the VC blog got an interesting offer the other day from the folks setting up a new online karaoke site at singshot.com the other day: If we recorded and posted one of our own karaoke performances, they'd donate $500 bucks to a charity of our choice. What a deal! My fellow conspirators seems to have let their pride and good taste get in the way, but not me! Here's my song -- a not-as-inspired-as-the-original-but not altogether-terrible version of the great Dusty Springfield hit I Only Want to Be with You.
And wait, there's more! If any VC readers go to the site and record something of their own, Singshot will add another $1 to their contribution. [To get the credit, pu "VC Blog" in the tag attached to your recording before you save it on the site]. Come on folks! It's really easy, takes a few minutes, it actually is fun, and it's a good cause [my designated charity being the Kinhaven Music School, PO Box 585, Bethlehem PA 18016 - a truly wonderful music-making institution for young kids].
In 1996, US Court of Appeals for the Fifth Circuit held, in Hopwood v. Texas, that the use of racial preferences to achieve "diversity" in college admissions is unconstitutional. In response, the Texas state legislature adopted the "Ten Percent Plan," a "race-neutral" way to achieve the desired proportion of minority students Texas' state universities without resorting to explicit consideration of race in admissions. The ten percent plan gives any high school student who is in the top 10% in his high school class automatic admission to any Texas state university, regardless of standardized test scores, the content of the classes he took, the strength of his high school, extracurricular activities, and other considerations.
The Ten percent plan was endorsed by then-Texas governor George W. Bush and has since been touted by the Bush Administration and others as a superior alternative to traditional affirmative action plans that rely open racial preferences; similar plans were later enacted in California and Florida. As this recent New York Times article points out, the ten percent plan succeeded in returning the percentages of African-American and Hispanic students in Texas state universities to roughly their pre-Hopwood levels - largely because many minority students attend schools where blacks or Hispanics are in the overwhelming majority. Unfortunately, however, the ten percent plan has negative side-effects and perverse incentives that are considerably worse than those of traditional affirmative action, including racial quotas.
First, it often leads universities to admit students that are probably inferior to those they would have chosen otherwise:
But the formula has also had unintended consequences . . .; it has become the tail that wagged the dog, university officials suggest. Seventy-one percent of the 6,864 Texans in the [UT Austin flagship campus] freshman class are top 10 percenters, compared with 41 percent in the first year the formula was used. That steady growth has frustrated college officials who have seen their flexibility to admit high school class presidents, high SAT scorers, science fair winners, immigrant strivers, artists and the like narrow.
“At some point you have to ask yourself, do you really want to admit your whole class on a single criteria,” said Bruce Walker, the admissions director at Austin. “It doesn’t give you the opportunity to recognize other kinds of merit.”
To be sure, this result could happen with traditional racial preferences as well. However, the ten percent plan affects a great many more admissions decisions than even the most rigid old-style affirmative action systems do. Rarely, if ever, do traditional affirmative action plans determine the admission of more than 15-20% of a school's student body. By contrast, at the University of Texas at Austin, over 70% of the student body was admitted under the ten percent plan. While some of these students would surely have gotten in anyway, it is highly likely that the ten percent plan leads to much larger sacrifices of academic merit than do racial preferences similar to those used at most other academic institutions.
Second, and probably much worse, the article notes that the formula creates perverse incentives for students to try to game the system by transferring to weaker schools or taking easier classes. While neither the article nor other evidence I have seen provides precise data on the numbers of students who do this, the effect may well be large. When I lived in Texas in 2001-2002, I met quite a few people with high school-age children who had switched to weaker schools in order to take advantage of the plan, or were considering doing so. Obviously, there is no similar perverse incentive created by traditional affirmative action. With a system of racial quotas or "plus factors," both white and minority high school students still have incentives to go to strong schools, in order to maximize their college admissions chances.
Third, the tradeoffs inherent in the ten percent plan are less transparent to both students and the general public than those involved in racial quotas. As a result, it is more likely that harmful effects will remain unmonitored and undetected. If public universities are going to strive for racial diversity, the costs and benefits of doing so should be as transparent as possible.
Finally, the ten percent plan also has the effect of disadvantaging high-achieving minority students who go to strong schools and - in part for that reason - fall short of the top ten percent in their class. Not only are these students disfavored relative to minority students attending weaker schools, they are also disfavored compared to whites in weaker schools as well:
[T]he formula has meant that the university may neglect desirable black and Hispanic students, as well as white students, who attend lustrous high schools but may not finish in the top 10. Marcus Price, a black finance major, for example, graduated from the High School for Engineering Professions in Houston, a competitive magnet school, with a 3.4 grade point average that included three A.P. courses. But with so many college-bound students to compete with, he ranked only in the top 20th percentile.“I thought it was funny that you could go to a less competitive school, score a total of 800 or 900 on your SATs and get into U.T. at Austin as long as you were in the top 10 percent,” said Mr. Price, who scored 1200 on his SATs.
Some, perhaps including President Bush, would argue that the ten percent plan is still preferable to traditional affirmative action because racial preferences are intrinsically wrong, regardless of consequences. Perhaps they are. But if it is morally wrong to aim for a given racial balance in a state university student body by using explicit racial preferences, why is it not equally wrong to intentionally try to achieve the same effect through indirect, facially "neutral" means? In the days of Jim Crow, southern states often used facially neutral policies such as literacy tests, poll taxes, and peonage laws to disadvantage blacks. Few today would argue that these policies were somehow morally superior to those Jim Crow laws that discriminated against blacks through explicit racial classifications. If, as critics of affirmative action claim, explicit affirmative action preferences are morally wrong for the same reason that Jim Crow laws were wrong, then "facially neutral" affirmative action systems such as the Texas ten percent are wrong for the same reasons that the facially neutral means of propping up Jim Crow were.
If we want to ensure that some set percentage of university admissions slots go to particular minority groups, far better to do so through traditional affirmative action, than by means of the Texas ten percent plan.
UPDATE: I would like to briefly respond to three points raised by commenters. First, many claim that it's not possible for high school students in Texas to game the system by switching to weaker schools because of the distances involved. Texas is indeed a large state, but much of the population lives in several large cities (Houston, Dallas, San Antonio, etc.) where there are many high schools close together, and gaming the system more than possible.
Second, some claim (in contrast to the first group) that this kind of gaming would be a good thing because it might move good students to weak schools and thereby improve education for students trapped in the latter. This argument would be more compelling if it were not for the extensive empirical evidence against it. For example, numerous studies such as David Armor's Forced Justice (1992) show that efforts to bus in stronger students to poorly performing inner city schools had little or no impact on education quality. Merely introducing a relatively small percentage of superior students into a poorly performing students is unlikely to have a significant impact on those students already there. There are many better ways to improve education for those students trapped in the worst public schools, most notably school choice.
Third, several people claim that it is contradictory that I argue that the negative impact of the ten percent plan might go "undetected" yet simultaneously note several negative effects that clearly have been detected. I was guilty of a loose use of terminology. Because the ten percent plan is more opaque than traditional affirmative action, the general public (which lacks the time and incentive to follow policy issues closely) is less likely to notice its perverse effects than those of old-fashioned AA. That doesn't prevent their being noticed by experts.
NOTE: in 2001-2002, I clerked for Judge Jerry E. Smith, the Fifth Circuit judge who wrote the court's opinion in Hopwood five years earlier. I don't think this has any real connection to the merits of the ten percent plan, but I mention it to forestall the likely claim that my criticism of the ten percent plan is somehow inappropriate because I am "hiding" this fact.
Friday, December 15, 2006
The Seattle airport rabbi and Christmas tree story raises the question: Would it violate the Establishment Clause for the government to put up a Christmas tree alone, with no accompanying menorah or similar gesture towards ecumenicalism? A Slate piece suggests (though perhaps somewhat ambiguously) that allowing such stand-alone Christmas trees would involve "overturn[ing] the status quo" set by the Supreme Court's Allegheny County v. Greater Pittsburgh ACLU decision:
Consider, for example, the latest brouhaha: the Seattle-Tacoma airport's decision to take down Christmas trees rather than put up a menorah as well. After a Lubavitcher rabbi pointed out that the public display of Christian symbols violated the First Amendment, the right-wing Christmas Warriors flooded him with "hundreds of hate mail messages" that were part of "a surge of anti-Semitism," according to the Anti-Defamation League. Pressured, the rabbi relented and the trees were put back, foregoing any parallel acknowledgment of Hanukkah.
The Christmas extremists can claim a yarmulke for their wall. But let the record show that they, not the rabbi, were seeking to overturn the status quo. For more than 17 years, the law of the land -- i.e., the Constitution as interpreted by the Supreme Court -- has held that public holiday displays must be fundamentally secular. To erect nativity scenes in public places, the high court held in County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter (1989), is to impermissibly endorse Christianity. Yet the Court also held that governments may "celebrate the season" through joint displays of Christmas trees and menorahs, since doing so acknowledges, as Justice Harry Blackmun wrote, that "Christmas and Chanukah are part of the same winter holiday season, which has attained a secular status in our society." Far from a victory for hard-line secularism, the 1989 ruling struck a moderate compromise between the ACLU's desire that no religious displays be permitted and the Christianists' belief that a city government can proclaim glory to the Christ child.
But Justice Blackmun's and O'Connor's controlling opinions in Allegheny expressly said that "when the city's tree stands alone in front of the City-County Building, it is not considered an endorsement of Christian faith" (Blackmun) and "[a] Christmas tree displayed in front of city hall, in my view, cannot fairly be understood as conveying government endorsement of Christianity" (O'Connor), because the Christmas tree was "not itself a religious symbol." Add to that the votes of Chief Justice Rehnquist and Justices White, Scalia, and Kennedy, who would have no problem with public display of religious symbols, and you get a Court majority for the proposition that public displays of Christmas trees don't violate the Establishment Clause (at least unless there's accompanied with something else that's more overtly religious). The six Justices also went further and said that the Christmas tree is permissible even when accompanied by a menorah; but under their reasoning, a Christmas tree standing alone would be fine, too.
I think that's right. The Christmas tree does not itself have religious meaning (as opposed to a creche, which does); and while it is associated with Christmas, so are lights on trees and eggnog, and so the Easter Bunny and egg hunts are associated with Easter. Such association does not make the tree send a message of endorsement of Christianity, just as putting lights on other trees during the Christmas seasoning or having the Easter Bunny appear at a government-run event doesn't send such a message.
But even if the Court's judgment on this was wrong, it was still a judgment of the majority of the Court the last time the Court visited the question. As a legal matter, then, government display of Christmas trees does not "impermissibly endorse Christianity," and allowing such displays preserves, rather than overturning, the legal status quo.
This issue presumably is headed for the Supreme Court eventually, and it looks like Judge Fogel's case may be the one that gets there with the most complete record. Stay tuned. Hat tip: Howard.
Thank you for the very interesting comments.
I stand corrected on political art being mostly on the left. I object to ALL political art.
My claim is not that political art is socially worthless. Rather, it is this: political art cannot count as evidence for the political position it tries to advance. I happen to believe that political positions should be supported by argument, not by force, deceit, or emotion. (Some have blasted me for this, but it is my view...) A work of art is not an argument.
And the issue is not merely theoretical. I have seen many young people in my own native country, Argentina, join political violence, their revolutionary conviction greatly strengthened and fueled by protest songs and other politically committed art. They were not only wrong on the merits. They are, sadly, dead.
A noteworthy case of discourse failure is political art. Many people regard art as a legitimate vehicle for political views. Indeed, many have insisted that artists ought to be politically committed. The aesthetic experience may raise people’s political awareness. And, if one believes in moral-political truths, it seems natural to recommend that artists convey those truths in a way people can readily understand. Thanks to the emotional power of beauty, art can, at least sometimes, help noble ideals reach the general public. Many of these works have great artistic value (Picasso's Guernica, for example), and some of them have surely contributed to worthy causes.
However, political art is a special form of discourse failure. Art is a type of concrete imagery, and as such it evokes a “fact” that may activate default theories in the audience. Those willing to challenge the political stances represented by the artifact have to overcome the suggestive power of beauty. Political paintings (say, Diego Rivera’s murals) often suggest causal connections that, for the reasons I indicated in my previous posts, permeate theories that people hold by default. Political art’s appeal to emotion usurps reasoned political argument. If you think big oil is responsible for the evils in the world, make an argument. The movie Syriana will not do. (A related puzzle: why is all political art of the left? We have answers to this too.)
Political satire is an interesting case. One reason it is particularly effective is that it generates an additional cost for those willing to challenge its purported message, for in that case the challenger becomes the “party pooper” who spoils the fun by taking the satire seriously. So comedians like Jon Stewart not only ridicule political figures or views. Whether intentionally or not, they also preempt objections to the intended political message (“Give me a break! Where is your sense of humor?”).
Many people see political art as a healthy form of social criticism. For them, consuming and appreciating political art epitomizes the critical attitude. I disagree. political art hinders critical thinking. It reinforces people’s fundamental default beliefs, and sometimes it does so by questioning their superficial beliefs. Thus, a novel may convince readers that their prior belief in the kindness of the police is wrong, and that in reality the police are henchmen of the ruling class. No doubt these readers may regard this novel as having transformed their beliefs on the matter, and in that sense political art may be seen as challenging their beliefs. At a deeper level, however, the novel may well have appealed to the reader’s default theories, for example by showing the role of the police in making some people rich at the poor’s expense – a zero-sum explanation that is inferior to explanations derived from reliable social science.
Orin Kerr seems troubled by Carrington and apparently thinks the Supreme Court will be, too. But why? Carrington does not declare Booker retroactive (even though perhaps Booker should be), and it is not clearly unlawful.I think Doug and I agree that the key question is whether Carrington is "permissible under the law." If Doug is right that the decision is permissible under the law, then Carrington is a fine decision and should remain on the books. On the other hand, if Carrington is impermissible under the law, it's a bad decision and should be overturned. So the key question becomes, is Judge Pregerson's decision legally correct?
What is unlawful are the constitutionally problematic sentences still being served by the defendants involved in Carrington. The dissenter in Carrington and Orin and others may not be troubled by defendants still serving unconstitutional prison sentences, but what's so wrong with the Ninth Circuit seeking to provide a remedy that is permissible under the law?
Of course, finality is an important value, but this value is always balanced against other values. If the Ninth Circuit panel in Carrington decides to strike the finality-fairness balance this way after Booker, why should the Supreme Court really care much?
In my view, the answer is clearly "no." First, Congress has enacted a statute that sharply limits when judges can modify sentences: 18 U.S.C. 3582(c) states that "[t]he court may not modify a term of imprisonment once it has been imposed" unless one of two exceptions applies. Judge Pregerson's Carrington opinion held, and as far as I can tell no one disputes, that these exceptions don't apply here. That's why Judge Bryan couldn't resentence the defendants himself: Congress has pretty directly said that he lacks that authority.
Given this statutory ban on resentencing, the only way for Judge Pregerson to allow the resentencing was to use whatever authority the Ninth Circuit has to "recall the mandate" of its prior decision sua sponte (on its own). Recalling the mandate is kind of like calling a do-over, and there is some authority for the view that a federal court of appeals has an inherent power (albeit a limited one) to recall the mandate even after a case has been made final under statutory law. However, it turns out that there's a history between the Ninth Circuit and the Supreme Court over the scope of this power to recall a mandate. That history explains why I think Judge Pregerson's decision is incorrect, and why the Supreme Court is likely to be interested in reviewing Carrington.
The history begins with a 1997 Ninth Circuit decision, Thompson v. Calderon, 120 F.3d 1045 (9th Cir. 1997) (en banc). In Thompson, the en banc Ninth Circuit recalled the mandate in a capital habeas case involving a conviction for murder and rape. After a 3-judge panel of the Ninth Circuit had denied the habeas petition and the Supreme Court had denied cert, a majority of active judges on the Ninth Circuit sua sponte "recalled the mandate," found that the petitioner had been denied his Sixth Amendment right to counsel, and granted the habeas petition.
The en banc opinion by Judge Fletcher (joined by Judge Pregerson) ruled that the circumstances of the case were "extraordinary," permitting the Ninth Circuit to recall its mandate. First, there had been a procedural mix-up among the Ninth Circuit judges that had accidentally blocked a vote on whether to hear the case en banc. Second, the original panel "made fundamental errors of law that, if not corrected, would lead to a miscarriage of justice."
The Supreme Court granted certiorari and reversed in an opinion by Justice Kennedy. Calderon v. Thompson, 523 U.S. 538 (1998). Justice Kennedy characterized the Ninth Circuit's recalling of its mandate as "a grave abuse of discretion." According to the Supreme Court, this authority was much more limited than the Ninth Circuit believed in light of the tremendous interest in the finality of sentences:
[T]he State’s interests in finality are all but paramount, without regard to whether the court of appeals predicates the recall on a procedural misunderstanding or some other irregularity occurring prior to its decision. The prisoner has already had extensive review of his claims in federal and state courts. In the absence of a strong showing of "actua[l] innocen[ce]," Murray v. Carrier, supra, at 496, the State’s interests in actual finality outweigh the prisoner’s interest in obtaining yet another opportunity for review.Now we can finally come back to Carrington. In my view, the Supreme Court would be likely to grant in Carrington because it seems like a replay of Thompson. It seems difficult to square the Ninth Circuit's vision of its power to recall the mandate articulated in Carrington with the Supreme Court's vision of that power in Calderon v. Thompson. If there is an argument for how Carrington is consistent with Thompson, I am certainly open to it, but it's hard to see what it might be (the federal/state difference might help, but it's not clear how far that can go). Judge Pregerson cites Thompson in passing, but doesn't discuss it or make an attempt to square his decision with the Supreme Court's instructions in that case. Given that, the answer to Doug's fair question — "If the Ninth Circuit panel in Carrington decides to strike the finality-fairness balance this way after Booker, why should the Supreme Court really care much?" — is that the Supreme Court has already set this balance in Thompson, and the Justices probably won't take too kindly to Judge Pregerson's ignoring their prior decision.
Based on these considerations, we hold the general rule to be that, where a federal court of appeals sua sponte recalls its mandate to revisit the merits of an earlier decision denying habeas corpus relief to a state prisoner, the court abuses its discretion unless it acts to avoid a miscarriage of justice as defined by our habeas corpus jurisprudence. The rule accommodates the need to allow courts to remedy actual injustice while recognizing that, at some point, the State must be allowed to exercise its "sovereign power to punish offenders." . . .
"[T]he miscarriage of justice exception is concerned with actual as compared to legal innocence." Sawyer, 505 U.S., at 339. We have often emphasized "the narrow scope" of the exception. Id., at 340; accord, Harris v. Reed, 489 U.S. 255, 271 (1989) (O’Connor, J., concurring) ("narrow exception" for the "'extraordinary case'"). "To be credible," a claim of actual innocence must be based on reliable evidence not presented at trial. Schlup v. Delo, 513 U.S. 298, 324 (1995). Given the rarity of such evidence, "'in virtually every case, the allegation of actual innocence has been summarily rejected.'" Ibid.
One last thought. It is true, as Doug mentions, that the Ninth Circuit had some arguably creative readings of its power to recall the mandate in United States v. Crawford, a one-page order issued last year in the wake of Booker. However, my understanding is that the Justice Department chose not to file a petition for certiorari in Crawford. We don't know why, of course, but it may just be that amidst the post-Booker fallout the narrow decision in Crawford wasn't worth pursuing. If no petition was filed, then of course the Supreme Court couldn't act. I would guess that the SG's office will take a different view of Carrington: Carrington is much broader than Crawford; it's a full opinion rather than a short order; and more time has passed since Booker was handed down. Given that, I would guess that Judge Pregerson's opinion won't be the last word in the Carrington case.
Related Posts (on one page):
- More on Judge Pregerson's Opinion in Carrington v. United States:
- Carrington v. United States:
Earlier this week the Israeli High Court of Justice held that the practice of "targeted killing" of terrorists by the Israeli military is not prohibited by customary international law. As Julian Ku explains on Opinio Juris, the opinion held that international law "does not prohibit all targeted killings of Palestinian terrorists, but that it might prohibit some such killings," and it asserts the right of Israeli courts to review the legality of such actions in the future.
It appears that the Israeli court adopted a position generally in line with that advocated by my colleague Amos Guiora, a veteran of the Israeli Defense Forces and Director of the Case Institute for Global Security Law & Policy. Amos has contended that targeted killings are permissible in certain lmited circumstances as a form of "active self-defense." Specifically, preventative strikes against known terrorists who are preparing for additional attacks, is permissible, provided that such actions are proportional, do not needlessly endanger civilians, and are the result of a process designed to limit the likelihood of mistaken identification of terrorists. This is a controversial view in international law, not least because it rejects the "law enforcement" paradigm for counter-terrorism measures.
It is important to reiterate, however, that the opinion did not give the Israeli military a blank check. Rather, it held that targeted killings as such are not, in and of themselves, contrary to international law, while leaving open the possibility that specific attacks, particularly those that are disproportionate, would violate international law. The LA Times has more on the opinion here.
Related Posts (on one page):
- A Moral Code for Counterterrorism:
- Israeli Court Allows "Targeted Killings":
I wonder if the technologically sophisticated VC readership could answer the following questions about the Sony Reader, which I'm thinking of buying for a non-English speaking relative:
1. Does the Sony Reader have the capacity to download non-English language books? Particularly Russian-language ones.
2. If the answer to 1 is "Yes," is there in fact a significant number of Russian-language books available in a form that is compatible with the reader?
3. With respect even to English-language books, how broad is the range of available titles that can be accessed through the reader? Can, you, for example, get everything that is available through Amazon.com or other similar sites? This question is in case I want to buy one for myself too.
Thanks in advance for your help!
Thursday, December 14, 2006
On Saturday and Monday, C-Span's BookTV will be broadcasting a gun control debate in which I participated. Here are the details:
On Saturday, December 16 at 8:00 am and at 2:30 pm and Monday, December 18 at 1:00 am Gun Control Debate with Arnold Grossman, "One Nation Under Guns" and David Kopel, "Gun Control and Gun Rights"I also wrote a lengthy review of a book, in which I argued that it was riddled with factual and legal errors, and that the book unintentionally reveals why the gun control movement in the United States has become such a failure in recent years.
Description: The Denver Press Club hosts a debate on the issue of gun control. Arnold Grossman, author of "One Nation Under Guns - An Essay on An American Epidemic," argues the pro-gun control case while David Kopel, co-editor of "Gun Control and Gun Rights: A Reader and Guide" speaks for the opposing side. The debate is moderated by Cnythia Hessin, executive producer of Rocky Mountain PBS.
Author Bio: David Kopel is Research Director at the Independence Institute in Golden, Colorado. Arnold Grossman co-founded SAFE Colorado, a bipartisan anti-gun violence group, in 2000, following the Columbine school shootings. Mr. Grossman co-authored "1998" with former Colorado governor Richard Lamm.
This piece by Boston Globe columnist Jeff Jacoby (whose work I generally like) is an excellent illustration of what is probably the most common fallacy in discussions about atheism - the belief that atheism necessarily leads to moral relativism:
What society loses when it discards Judeo-Christian faith and belief in G-d is something far more difficult to replace: the value system most likely to promote ethical behavior and sustain a decent society. That is because without G-d, the difference between good and evil becomes purely subjective. What makes murder inherently wrong is not that it feels wrong,but that a transcendent Creator to whom we are answerable commands: "Thou shalt not murder...."
Obviously this doesn't mean that religious people are always good, or that religion itself cannot lead to cruelty. Nor does it mean that atheists cannot be beautiful, ethical human beings. Belief in G-d alone does not guarantee goodness. But belief tethered to clear ethical values — Judeo-Christian monotheism — is society's best bet for restraining our worst moral impulses and encouraging our best ones.
The atheist alternative is a world in which right and wrong are ultimately matters of opinion, and in which we are finally accountable to no one but ourselves.
Jacoby's claim that atheism is antithetical to morality is far from unusual. As I note here, survey data shows that 51% of Americans believe that "“[i]t is necessary to believe in God in order to be moral and have good values” (thereby going even farther than Jacoby, who concedes that atheists can be "ethical human beings").
While some atheists are moral relativists, there is no necessary connection between the two beliefs. Atheists, like theists, can have strong commitments to objective views of morality based on reason, tradition, communitarianism, and so on. There is absolutely no reason why atheists can't have "clear ethical values" just as much as theists do. Indeed, most prominent atheist thinkers (consider, for example, Karl Marx or Ayn Rand) argue for very strong non-relativist views of morality. The standard form of the argument that atheism=moral relativism implicitly assumes that belief in a deity is the only possible source of moral values; but that assumption is simply wrong.
In the last paragraph of his column, Jacoby hints at a more moderate defense of the atheism=relativism equation. Perhaps atheists can have nonrelativist views of morality, but the lack of a single divine authority for moral principles leads to disagreement and a reduction in the certainty with which people hold their moral beliefs - thereby causing a widespead perception that "right and wrong are just matters of opinion." Maybe so (though I am skeptical), but theists have exactly the same problem. After all, they disagree amongst themselves about 1) what kind of God or gods exist, and 2) what the relevant deity or deities want us to do. Disagreement over moral issues between different groups of theists is every bit as deep as that between divergent secular views of morality. If the latter could persuade people that right and wrong are matters of opinion, so too could the former. Even if we limit our focus to the "Judeo-Christian" tradition to which Jacoby refers, there is still tremendous disagreement between different groups within the Christian tradition (to say nothing of the deep disagreement between Christians and Jews that the term "Judeo-Christian" is often used to elide).
Finally, it is possible to argue that, even absent any logical connection between atheism and relativism, atheists in fact are empirically more likely to be moral relativists than theists. I have not seen evidence definitely settling this issue either way. But even if the empirical claim is true, it doesn't follow that atheism is dangerous.
This is so for three reasons. First, it could be that the causation runs from moral relativism to atheism rather than the other way around. People attracted to moral relativism may become atheists as a result rather than vice versa. Second, even if the causation runs in the direction that critics of atheism posit, the harm caused by an increasing prevalence of moral relativism must be weighed against the harm caused by non-relativist, but deeply flawed views of morality. I would rather live in a society dominated by selfish moral relativists than one dominated by nonrelativist believers in Nazism, Communism, or radical Islamism. Whether increasing moral relativism is harmful depends on what values people give up to become relativist.
Finally, even if increasing moral relativism is indeed socially dangerous, there may be ways of persuading atheist moral relativists to give up moral relativism without also giving up atheism. Just as religious groups often successfully persuade theists to convert from one religion to another, it may be that some moral relativist atheists can be persuaded to become moral objectivists. Indeed, to the extent that becoming an atheist does cause people to become moral relativists, it may be because of the widespread prevalence of views of like Jacoby's. Some who conclude that God does not exist may also come to believe that there is no objective morality because they (like Jacoby) wrongly assume that the latter is a necessary implication of the former.
Thus, those who worry about the alleged trend towards moral relativism might be better advised to oppose it by emphasizing that moral objectivism is compatible with a wide range of views on religion, including atheism.
The state assembly opted to give gay couples civil unions, rather than marriage. Expect another round of litigation in the state courts arguing that the bill does not go far enough.
Yet another case, O.T. v. Frenchtown Elementary School Dist. Bd. of Ed., 2006 WL 3579215 (D.N.J. Dec. 11), finds that the government acted unconstitutionally in excluding a private religious speaker from a government-run program. Here, the school district was running an after-school talent show, which wasn't part of the school curriculum. The show was apparently open to all "G-rated" acts, and the context strongly suggests that the acts were seen by the audience as the performer's act, not the school's. Yet the school excluded O.T. from singing Awesome God (which I take is this song) on the grounds that the lyrics constituted religious proselytizing, and that allowing the lyrics would violate the Establishment Clause.
The court disagreed. The program, the court said, was a designated public forum for student expression; and excluding a song because it conveyed a message of advocacy for the singer's religious beliefs was viewpoint-based, and thus presumptively unconstitutional. And the court rejected the school's argument that this presumption was rebutted because allowing the song would have violated the Establishment Clause: The song would have been seen as the student's own speech, not the school's speech, and thus wouldn't be an unconstitutional endorsement of religion by the government.
It seems to me the court got it quite right. I suspect it also seems this way to the Department of Justice and to the New Jersey ACLU, both of which filed amicus briefs on behalf of the plaintiff (here's the ACLU brief).
Thanks to Allen Asch (here, in his capacity as operator of ACLU Fights for Christians) for the pointer.
My former boss, Judge Kozinski, dissented from denial of rehearing en banc in this case (U.S. v. Afshari), and I found his dissent quite persuasive; one of the defendants has petitioned for certiorari (Rahmani v. U.S. is the name of that matter), and I hope the Court agrees to hear the case.
For those who want a sense of what's going on, here's an excerpt from Judge Kozinski's dissent (some paragraph breaks added); I don't know why I didn't blog about it at the time, but better late than never.
It goes without saying that the United States government may prohibit donations to terrorist organizations.... [M]oney is fungible; if an organization engages in terrorism, it can channel money donated to it for humanitarian and advocacy purposes to promote its grisly agenda. At the same time, however, giving money to a political organization that is not engaged in terrorist activities is constitutionally protected. The determination of whether or not an organization is engaged in terrorism is therefore crucial, because it distinguishes activities that can be criminalized from those that are protected by the First Amendment.
This case concerns the manner in which this distinction is drawn. Because designating an organization as terrorist cuts off the First Amendment rights of individuals wishing to donate to that organization, the designation must meet certain constitutional standards. The Supreme Court has twice spoken to the question of how the government may go about turning what would otherwise be protected First Amendment speech into criminal conduct, the first time in Freedman v. Maryland, 380 U.S. 51 (1965), and the second time in McKinney v. Alabama, 424 U.S. 669 (1976). In both cases, the Court laid out strict rules that the government must follow, yet the designation in this case complies neither with Freedman nor with McKinney.
The net result is that Rahmani is being criminally prosecuted, and almost certainly will be convicted, for contributing to an organization that has been designated as terrorist with none of the protections that are constitutionally required for such a designation. Worse, Rahmani will in all likelihood spend many years in prison for contributing to an organization whose designation the D.C. Circuit has held does not even meet the requirements of due process. Because I believe that the prosecution in this case runs contrary to two of our defining traditions — that of free and open expression, and that of justice and fair play — I respectfully dissent from the court’s failure to correct the panel’s errors by taking this case en banc....
It is firmly established that monetary contributions to political organizations are a form of “speech” protected by the First Amendment ..... [G]iving money to a designated terrorist organization is not protected speech. But if the organization is not a designated terrorist organization, then monetary contributions to it are protected by the First Amendment — maybe not to the same degree as pure speech, but protected nonetheless. A terrorist designation is thus a type of prior restraint on speech, because it criminalizes monetary contributions that would otherwise be protected by the First Amendment.
The panel dismisses Rahmani’s First Amendment arguments with conclusory statements that the money here is being given to a terrorist organization, and is therefore a completely unprotected form of expression.... But this begs the question. The crux of the case — the issue the panel has elided in each iteration of its opinion — is the process by which the designation was made.
If the designation process does not comply with constitutional standards, then the designation is invalid and Rahmani’s donations are protected by the First Amendment. In order to determine whether that process was constitutional, we must rely on the guidance of Freedman v. Maryland, 380 U.S. 51 (1965), and McKinney v. Alabama, 424 U.S. 669 (1976).
1. “[A]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Freedman, 380 U.S. at 57. In Freedman, the Supreme Court detailed the “procedural safeguards” that must accompany prior restraints on speech, setting a high hurdle for the government to clear before a restraint can be held constitutional. Freedman concluded that “only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, [thus] only a procedure requiring a judicial determination suffices to impose a valid final restraint.” Id. (emphasis added). The panel ignores Freedman entirely, upholding a prior restraint on speech that contains not a single one of Freedman’s procedural safeguards....
For more, see the rest of Judge Kozinski's dissent, or the petition for certiorari, the government's brief in opposition, or the petitioners' reply, all available on Rahmani's lawyer's site. The site also includes amicus briefs in support of the petition from The Constitution Project (cofiled by Bruce Fein), and from Congressmen Bob Filner and Tom Tancredo on behalf of the Iran Human Rights and Democracy Caucus of the U.S. House of Representatives.
Several comments on the veiled witness thread suggested that the judge should have let the Muslim woman plaintiff testify velied, but discounted her testimony given his (and the other litigant's) inability to judge her demeanor. This alternative, the argument would go, does indeed put the woman at a disadvantage -- but it puts her at less of a disadvantage than dismissing her whole case would, and so it is the less restrictive means of serving the government interest in accurate factfinding. (I assume here, together with the legal system, that looking at a witness's face does advance accurate factfinding; that is certainly contestable as a factual matter, but it is a fundamental assumption of our legal system, and not one that I think the judge can disregard here.)
I at first thought that this wouldn't be feasible, and I'm still not sure that it would be, because it's not quite clear to me how the judge would implement this discounting of her testimony. I take it that he shouldn't just assume that she's lying about everything. Should he assume that she's lying -- or at least uncertain or evasive (demeanor evidence is supposed to be a cue not just to outright lies, but to these matters as well) -- about all those facts that are controverted by the other side? Only about some of those facts? If so, which ones? (To give some more concrete details, one news account reports that Muhammad "was contesting a $2,750 (£1,470) charge from a car hire company for damage to a vehicle she said was caused by thieves," so I take it the issue is whether the damage was indeed caused by thieves, assuming that the contract with the car rental company made her not liable for such damage.)
On the other hand, perhaps this isn't really that far different from a judge's dealing with a person whose face is naturally hard to read (perhaps because the person suffers from some neurological condition that gives him a flat affect). Presumably a judge would try to do as best he can in trying to figure out whether the person was telling the truth; couldn't he do the same here? (Would this suggest that the judge actually shouldn't discount the veiled witness's testimony at all?)
In any case, this struck me as an interesting matter, so I thought I'd put up a post about it and see what others have to say. Naturally, if the case were litigated solely on the testimony of others, or on documentary evidence, the matter wouldn't come up; but I assume that this issue arose chiefly because this small claims case, like other small claims cases, did rely heavily on the plaintiff's own testimony.
Related Posts (on one page):
- Letting Witness Testify Veiled But Discounting the Testimony:
- Second-Guessing a Claimant's Religious Beliefs:
- Female Judges for Female Muslim Litigants?
- Transcript in Case That Was Dismissed Because Plaintiff Muslim Woman Refused to Unveil To Testify:
Then I had an idea for a gadget I wish someone would invent. Suppose we had a "wireless" Ipod-type device that would be programed by someone who knew music. You wouldn't know what they were going to play in advanced and would rely on their expertise to find the right mix. Maybe the device could have different streams or "channels" with different styles of music or even comedy. We could call this device something cool like "radio." How would you pay for it? Commercials would completely destroy the concept, so it would have to be by subscription. $10-12 per month seems about right but only if the sound is CD quality.
But there is still a problem. With this "radio" device you don't know what is playing unless there is an announcer to tell you and that destroys the enjoyment of the music. Maybe there could be a read out of song and artist, just like on my Ipod. But there is even a bigger problem. Unlike the Ipod, you don't get to "save" the new music to make into a favorites. Suppose you could save the stream to memory? Better yet, suppose you could save a song after you start listening to it if you like it, like my Tivo? Alternatively you could record a stream for a period of time for when you cannot receive the wireless signal and when you play it back, saving only the songs you like to your playlists. Maybe you could add your own MP3s from your PC to your favorites and mix them with the music you downloaded from the wireless stream. Wouldn't this be awesome?
But wait! This amazing device and service had already been invented. It is the XM Pioneer Inno, and it is smaller and lighter than my 15GB IPOD or my new Treo 680. It's marketing slogan is "hear it, click it, save it." It also works with music bought on a PC from Napster but I won't be using that feature. Because it is a satellite radio, it does not work indoors without an external antenna (which I have connected to the included home base station attached to my home stereo). But I discovered that in DC (where XM is based) there are lots of ground repeaters so it works inside my pocket when I am outside, as well as inside some airports (e.g. Logan). Plus my subscription gives me free access to XM Radio Online so I can easily listen in my office or home on my PC. The price I paid for all this goodness? $199 after rebate from Amazon.com (now it is $225) + a subscription of course & the cost of a car kit. When in the car dock it has a built-in FM modulator to play through the car audio system.
Check out the on-line demo. It is a great gift for the boomer in your life who likes new music but is too busy to follow the music scene, who does not want to go through the hassle of locating and downloading music, or who resents paying $.99 per song. It's a whole new paradigm.
(civil comments only please. Feel free to post recommendations of other really cool gift ideas that people might not have heard about yet.)
A commenter noted that the judge in the veiled litigant-witness case seemed to be second-guessing the claimant's religious beliefs in some measure. A judge can't reject a claimant's religious objection to some law because he thinks the claimant's objection is irrational, not broadly held by her coreligionists, or an unsound interpretation of her scriptures. The judge could hold that, as a matter of law, no religious exemptions are available (either because the state takes a general no exemptions view, or because denying the exemption is the least restrictive way of serving a compelling government interest). The judge could also find as a matter of fact that the claimant is insincere in her claimed religious belief; that's often a troublesome form of inquiry, but necessary for any religious exemptions regime to work. But he can't say, for instance, that this Muslim claimant should lose because most Muslims don't hold the views that this claimant says she holds.
On the other hand, I think that a judge may probe the claimant's beliefs by bringing up attitudes that the claimant's coreligionists hold, and to see if the claimant might ultimately acknowledge that she too would go along with those views. (I say "I think" because I've seen no caselaw on the subject, so this is my sense of where the broader precedents tend to point.) The line between cultural traditions and religious mandates is often unclear, and even some religious believers might at first confuse the two. Occasionally, some probing will lead the believer to sincerely acknowledge that something that she at first thought was religiously forbidden is not actually forbidden, but just unfamiliar or distasteful.
If the believer sincerely comes around to this view -- which is to say expresses a willingness to accommodate the government's interests -- the result could be a win-win situation: In this case, the court could decide the case on the merits, and the woman could testify without feeling that she's violating her religious obligations. Conversely, I don't think that a judge has an obligation to just stop questioning the moment the religious claimant raises a religious objection, and make a decision based on the claimant's initial formulation of her objection (which may be the broadest possible formulation, and broader than what the objector herself would come to after some conversation and reflection). It's true that this sort of discussion might sometimes lead to the claimant feel unduly pressured, or might lead to the judge impermissibly rejecting an objection because he finds it irrational or uncommon. But on balance, it seems that this sort of probing of the witness's beliefs is permissible.
Of course, if the believer continues to assert that she has a religious objection, because she doesn't share other Muslims' less restrictive views about the veil, then the judge has to take her beliefs as she sincerely describes them to be (unless the judge concludes that she's lying). That's what I read the judge to have done here. He tried to persuade her to accommodate the legal system's position, by explaining the rationale for the position and by pointing out that other Muslims are willing to accommodate it. But when she insisted that her religion forbade her from removing her veil, he denied the exemption request on the grounds that granting it would unduly undermine the factfinding process.
Related Posts (on one page):
Earlier this week, Reuters reported on David Duke's participation in the Holocaust revisionism conference in Tehran. Particularly curious about Reuter's report was it's description of Duke as: "U.S. academic David Duke, a former Louisiana Republican Representative." Yet, as Jonah Goldberg observed, "it's not like he was in the U.S. Congress and it ain't like he has tenure somewhere." So what gives?
I perused Duke's website (not something I recommend) and found no mention of any "academic" pursuits, let alone employment in an academic field, other than a vague claim that he "teaches in Eastern Europe." (Teaches what? Holocaust revisionism?) Duke does have a Ph.D in History from the Ukrainian Interregional Academy of Personnel Management (MAUP), but I thought it took more than an advanced degree to make one an "academic."
Some commenters on the veils in court thread asked what I thought about the veiled Muslim woman's suggestion that the case be tried in from of a woman judge. I'm pretty sure that this won't work as a general matter: In many cases, witnesses have to testify before juries, and there are obvious problems with insisting on all-woman juries as well as woman judges. But even if this proposal is limited to trials before judges, it still won't work.
First, the litigants and lawyers also generally have a right (at least setting aside cases where the witness's life may be in danger) to see the witness's demeanor; and often the litigants and lawyers will be men. And, second, I think the court system has an independent and sufficiently strong interest in treating all judges (and jurors) equally without regard to sex. I realize that some sex-based accommodations are justified under exceptions to antidiscrimination rules, for instance when a woman guard or police officer is used to do pat-down searches and especially body cavity searches of women, and a male guard or officer is used for searches of men. But it seems to me that imposing similar sex classifications for the judges -- who actually preside over cases, and who in nonjury trials decide the facts -- would pose more serious (albeit chiefly symbolic) problems for the legal system, problems that the system can and should resist acquiring.
Related Posts (on one page):
First, best wishes for a speedy and complete recovery to Sen. Johnson (D-SD).
Second, I've heard someone ask whether — if Sen. Johnson unfortunately proves to be incapacitated — the current Senate majority could remove him from office under the Constitution's provision that "[e]ach House shall be the Judge of the Elections, Returns and Qualifications of its own Members" (art. I, cl. 5, § 1). The answer is no, under Powell v. McCormack, 395 U.S. 486 (1969): "[I]n judging the qualifications of its members Congress is limited to the standing qualifications prescribed in the Constitution," namely "age, citizenship, and residence." In judging the elections and returns each House is of course also allowed to decide whether the person got a majority of the vote. But the clause does not authorize exclusion for misconduct (the next clause, which provides that "Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member," does so, though it requires a 2/3 vote rather than a majority) or for perceived incapacity.
(Thanks to Hugh Brady for pointing this out.)
This case was in the news in mid-October, but I just got a scanned version of the transcript, and I think it's much worth reading. I have a PDF here, but I thought I'd include the full text:
Ginnah Muhammad d/b/a Sisters of Second Chance v. Enterprise Rent-A-Car, Small Claims Hearing before Judge Paul J. Paruk, Hamtramck, Michigan, Oct. 11, 2006:
THE COURT: Hi, good morning, everybody. I am going to handle a small claims matter first and then I'll do a couple of landlord-tenant cases. Is it Ginnnah Muhammad and Enterprise Rent-A-Car? Who is who? I need one person from Enterprise. Come on up and stand over here on the right-hand side, please, for me.
Are you Ginnnah Muhammad?
[MUHAMMAD]: Yes, sir.
THE COURT: You need to stand over there. Ms. Muhammad, did my court officer talk with you about taking your veil off?
[MUHAMMAD]: Yes, sir.
THE COURT: Okay, and what is your suggestion or what are your thoughts on that?
[MUHAMMAD]: I said, "No, I can't."
THE COURT: Well, let me explain to you why I think you have to do it and then you tell me why you don't have to do it and then we'll try and make a decision as to how to proceed.
[MUHAMMAD]: Yes, sir.
THE COURT: One of the things that I need to do as I am listening to testimony is I need to see your face and I need to see what's going on and unless you take that off, I can't see your face and I can't tell whether you're telling me the truth or not and I can't see certain things about your demeanor and temperament that I need to see in a court of law, okay, so you tell me why is it that you don't want to take your veil off.
[MUHAMMAD]: Well, first of all, I'm a practicing Muslim and this is my way of life and I believe in the Holy Koran and God is first in my life. I don't have a problem with taking my veil off if it's a female judge, so I want to know do you have a female that I could be in front of then I have no problem but otherwise, I can't follow that order.
THE COURT: Okay. Well, no, I don't have a female judge. I'm the Judge that's here, okay, and second of all and I mean no disrespect to your religion, but wearing a veil I don't think is a religious thing -
[MUHAMMAD]: Well, that's your preference, sir.
THE COURT: — I think it's a custom thing and –
[MUHAMMAD]: That's your preference.
THE COURT: First of all, hold on. Hold on. It's not my preference. I have no clue about any of this information, okay --
[MUHAMMAD]: That's what I'm saying.
THE COURT: — but this has come up in my courtroom before, and in my courtroom before I have asked practicing Muslims and the practicing Muslims have told me that, "No, Judge, what I wear on top of my head is a religious thing and what I wear across my face is a non-religious thing. It's a custom thing."
[MUHAMMAD]: Well, that's not correct.
THE COURT: Well, this is what they have told me and so that's the way that I am running my courtroom and that's how I have to proceed.
[MUHAMMAD]: And I respect you, Your Honor, and --
THE COURT: Fantastic.
[MUHAMMAD]: — I would like to ask for a change of venue.
THE COURT: Well, you can't have a change of venue. You're the one who decided to file the lawsuit, okay --
[MUHAMMAD]: Yes, sir.
THE COURT: — and so that's where we are today. So you have a couple of options today as far as I am concerned. You can either take it off and you can give me the testimony and after the hearing is all done and over with and if you want to put it back on, I don't have any problems with that but if, in fact, you do not wish to do it, then I cannot go forward with your case and I have to dismiss your case.
[MUHAMMAD]: Thank you, sir. You have a great day.
THE COURT: Okay. Well, first of all tell me what you wish to do.
[MUHAMMAD]: I wish to respect my religion and so I will not take off my clothes.
THE COURT: Well, it's not taking off your clothes. All I am trying to do is ask you to take off the part that's covering your face so I can see your face and I can hear you and listen to you when you testify, and then you can put the veil back on. That's all I am asking to do, ma'am.
[MUHAMMAD]: Well, Your Honor, with all due respect, this is part of my clothes, so I can't remove my clothing when I'm in court.
THE COURT: Okay.
[MUHAMMAD]: Thank you.
THE COURT: You're welcome, ma'am.
Okay. Enterprise, case is dismissed.
My sense is that the judge reached the right result, and reached it the right way. Being unable to testify in court without violating one's religious beliefs is indeed a very serious burden on religious believers: If this situation became widespread, members of that religious group would be easy marks for a variety of predators.
At the same time, the factfinder's ability to observe a witness's face when she is testifying is generally seen by our legal system as important to assessing the witness's candor. Perhaps people overestimate their ability to judge truthfulness based on facial expressions. But our legal system largely rests on the assumption that factfinders are indeed able to helpfully evaluate the witness's demeanor. So long as that's true, then it seems to me unfair to the other side to carve out an exemption from the witness's duty to show her face in court.
Note that Michigan courts have interpreted the state constitution as mandating religious exemptions from generally applicable laws when (1) the law substantially burdens a religious observer's practice, unless (2) the law is the least restrictive means of serving a compelling government interest. My view is that there is a substantial burden here, but that requiring testimony with the witness's face exposed is indeed the least restrictive means of serving a compelling interest.
Related Posts (on one page):
- Letting Witness Testify Veiled But Discounting the Testimony:
- Second-Guessing a Claimant's Religious Beliefs:
- Female Judges for Female Muslim Litigants?
- Transcript in Case That Was Dismissed Because Plaintiff Muslim Woman Refused to Unveil To Testify:
The new Washington & Lee Law School Journals Ranking is out and I'm pleased to note that the Supreme Court Economic Review ranks second among law and economics journals according to their methodology (the rankings use a citation-based methodology, as I understand it). We trail only JLS and are ranked ahead of, among others, JLE, ALER, and JLEO.
Submission and other information are available here. Ilya and I are now the editors of the journal so SCER's ranking is sure to decline precipitously in coming years, but in the meantime, if you have a peer-review worthy law and economics paper we hope you will consider submitting it to us.
I couldn't get a direct link to the ratings output to work--if you want to see the whole list it appears you need to run the search under the "Subjects Box" and then click the dates you want.
Wednesday, December 13, 2006
But this year's debate over the merits of the BCS has exposed a more basic flaw, the faulty premise that underlies the entire system. The BCS was created in 1998 with the stated goal of of pitting the nation's top two football teams against each other in a championship game. Michigan partisans, then, are outraged that their team isn't getting another chance to take on Ohio State. The Wolverines are the second-best team in the country, they say. Shouldn't that guarantee them a spot in the title game?(civil comments only, including those by Michigan fans.)
No. The fact that the Wolverines are probably the second-best team in the country doesn't mean they've earned the right to play in the national championship game. In fact, it means the exact opposite: Michigan's No. 2 status is why they shouldn't be playing for the title.
Playoff systems are designed to determine, in a fair manner, which is the single best team in a particular sport. Their purpose is not to pit the two finest teams against each other in a season-ending game. The Yankees and Red Sox do not play annually in the World Series. The Indianapolis Colts will never be given a chance to play the New England Patriots in the Super Bowl. When the two best college basketball teams in the country face off, as they routinely do, in a Final Four semifinal or even in the round of eight, does anyone think that the loser deserves a rematch?
Take this example: Does anyone think the Seattle Seahawks were the No. 2 team in the NFL last year? No. Likewise, will anyone think the NFC champion who makes it to this year's Super Bowl is the second-best team in football? Of course not. Will the best team in the NFL still win the Super Bowl? Yes. Even if it's an NFC team! . . .
Do we know if Florida is the second-best team in the country? Of course not. Here's what we do know: Michigan is not the best. How do we know that? By the traditional criterion: They scored fewer points in a football game than Ohio State did. The only team that has the "right" to play in the BCS championship game is the best team, Ohio State. And the only teams that should be scratched without question are teams that have already been determined to be "not the best," like Michigan.
Ohio's statewide smoking ban took effect this week. Now, the Cleveland Plain Dealer reports, the Cleveland City Council is endorsing a ban on trans-fats.
Related Posts (on one page):
- Universal Cuts the Trans-Fats:
- Crisco Cops in Cleveland:
- No Trans-Fats in NYC:
This consolidated case involves two defendants, Carrington and Tillitz. Carrington was sentenced in 1990, and Tillitz in 1998, both by Judge Robert Bryan, a district court judge in Seattle who, like many trial judges, really didn't like the federal Sentencing Guidelines that at the time were binding law. At the sentencing hearings for both defendants, Judge Bryan expressed the view that the Guidelines were bad. In 1990, he said that they were "bad law" because they diminished his "authority" to sentence as he saw fit, and in the 1998 hearing he added that he thought the Guidelines were unconstitutional (for reasons not explicit).
After the Supreme Court ruled in Booker that the Guidelines were not mandatory, each defendant filed a motion before Judge Bryan requesting a new sentencing hearing without the binding effect of the Guidelines. Judge Bryan denied relief, but then sent the cases to the Ninth Circuit with an unusually personal opinion asking the Ninth Circuit to let him resentence these two defendants. Judge Bryan wrote to the Ninth Circuit:
Trial judges, more than anything, want to do the right thing. We understand our obligation to follow the law, but deeply—and even desperately—hope that the law will lead to justice. If we are part of an injustice, we want to set it right, even if it involves a great deal of extra work. To quote Gerry Spence: "[S]ometimes a judge doesn't know how to get justice. . . . [T]he judge has to just sit up there and watch justice fail right in front of him, right in his own courtroom, and he doesn't know what to do about it, and it makes him feel sad. . . . Sometimes he even gets angry about it." Gerry H. Spence, Of Murder and Madness: A True Story, 490 (1983). This judge, sad and a little angry, would welcome an opportunity to resentence these defendants to a constitutional and legal sentence.In the decision handed down today, Judges Pregerson and Noonan (with Callahan dissenting) ruled that Judge Bryan's feelings about these cases created "extraordinary circumstances" that should allow Judge Bryan to reopen the cases and resentence the defendants without the sentencing guidelines. Specifically, Judge Bryan had expressed "frustration" at the guidelines at the original sentencing, and also had made an "impassioned plea" — even quoting famed trial lawyer Gerry Spence! — to be able to resentence the defendants in his 2005 opinion. According to Judge Pregerson, this combination was sufficient to reopen the old cases and permit resentencing:
These two cases have weighed on Judge Bryan’s conscience eight years and sixteen years, respectively, after the original sentences were imposed. They compelled him to the point that he would sua sponte request that this court recall its mandates and that he would voluntarily assume the additional responsibility involved in re-sentencing these defendants. We believe that the number of cases in which a district court will feel so strongly about the need to resentence is small, making these cases truly extraordinary.I can understand why Judge Bryan wants to resentence these defendants, and I can understand why Judge Pregerson would want to let him do so. But there are lots and lots of cases like this in the pipeline, and whether they should be reopened would seem to a question of whether Booker is retroactive rather than whether a trial judge's opinions are strongly-enough expressed to make that particular sentencing "extraordinary." Surely it can't be the law that a defendant is entitled to resentencing decades later if the trial judge really wants to resentence him.
Our interest in the finality of judgment is not so strong that we would not allow a district court judge the opportunity to remedy what the judge considers to be an "injustice" and to re-sentence a defendant to a sentence that is just and proper.
George Will recently commented that "[t]here should be two Supreme Courts, one to reverse the 9th U.S. Circuit Court of Appeals, the other to hear all other cases." With the one Supreme Court running low on business these days, I'm sure they will appreciate the chance to take a closer look at this one (assuming the full Ninth Circuit doesn't get there first).
Thanks to Howard for the link. (Update: I have fiddled with the end of the post a bit in response to comments.)
Related Posts (on one page):
- More on Judge Pregerson's Opinion in Carrington v. United States:
- Carrington v. United States:
I had an op-ed on this little scandalette in yesterday's Wall Street Journal, and the Journal people were kind enough to let me post it here:
Two nurses, both aspiring novelists, helped tend British soldiers during World War II. Briony, the protagonist of Ian McEwan’s award-winning novel “Atonement,” is fictional. The late Lucilla Andrews is real: She became an author, pioneering romantic “hospital fiction,” and also wrote a memoir of her war years.
Therein lies the latest plagiarism scandalette to hit the news, sparked by an article in the British press. To be a credible character in a historical novel, Briony had to do the things wartime nurses did, and see the things they saw. It is thus no surprise that Mr. McEwan read Andrews’s book when researching his own; and several passages from his book strongly resemble passages from Andrews’s memoir.
“Our ‘nursing’ seldom involved more than dabbing gentian violet on ringworm, aquaflavine emulsion on cuts and scratches, lead lotion on bruises and sprains,” wrote Andrews (to give one example). “In the way of medical treatments, she had already dabbed gentian violet on ringworm, aquaflavine emulsion on a cut, and painted lead lotion on a bruise. But mostly she was a maid,” wrote Mr. McEwan.
Plagiarism? Legally actionable? Ethically reprehensible? Bad manners? Or good research, needed to produce accurate historical fiction?
Plagiarism is easy to condemn but often hard to define. This is partly because the legal rules differ sharply from the ethical ones, and the ethical rules in scholarship, journalism and fiction differ from each other. And it is partly because the rules for using the facts uncovered by writers of history—whether memoirists, historians or contemporaneous journalists—must be different from the rules for using the original phrases that the writers created.
Let’s start with the law. It generally bans not plagiarism as such, but rather copyright infringement. (Trademark law might play a role in extreme plagiarism cases, but not in the typical ones.) And copyright infringement is both broader and narrower than what most people see as “plagiarism.”
For instance, an author can be held liable under copyright law even when he credits the original source from which he copies. The law concerns itself more with protecting authors’ ability to profit from their works than with ensuring credit where credit is due. So if I translate Mr. McEwan’s novel into Russian without his permission, trumpeting Mr. McEwan’s authorship and saying that I am merely the translator, I am a copyright infringer, though not a plagiarist.
On the other hand, an author is not liable for copying the facts that others have discovered, regardless of whether he gives credit. Copyright law doesn’t give authors exclusive rights to facts, because such a monopoly would undermine debate, scholarship and literature. If I write a scholarly legal article that uses without attribution historical facts uncovered by another scholar, my failure to attribute is a serious ethical breach—but not copyright infringement.
So on to professional ethics, which