University of Chicago law profesor Cass Sunstein blogs in defense of libertarian paternalism:

Becker and Posner make some nice points against those who like government bans and mandates (though Posner, interestingly, defends the ban on trans fats in New York City restaurants; libertarian paternalists would disapprove of any such ban). But libertarian paternalists do not mean to allow government to forbid the triumph of the supposed "weaker" self over the supposedly stronger one. If people want to eat a lot of candy and ice cream, or refuse to save for their retirement, that is their right. Far from neglecting the bounded rationality of government officials, libertarian paternalists emphasize government error as a strong reason for respecting freedom of choice.

What libertarian paternalists add is that the opposition between "individual choice" and "government" is confusing and unhelpful when government is inevitably establishing default rules that govern outcomes if choices haven't been specifically made -- and that influence people's choices in any case. A key point, then, is that private and public institutions can't possibly avoid a form of paternalism, so long as they establish default rules and starting points. (For some reason, economists in particular seem not to understand this point.) The question is how to make those starting points as good as possible, while also preserving free choice.

For more on this subject, see Sunstein's paper with Richard Thaler, "Libertarian Paternalism Is Not an Oxymoron," and Gregory Mithcell's response, "Libertarian Paternalism Is an Oxymoron."

ABC News' Jan Crawford Greenburg haws launched her new blog, "Legalities," just in time to promote her new book on the Supreme Court. (LvHB) Maybe she'll blog about the precise date Justice Stevens plans to retire.

Public Employees for Environmental Responsibility (PEER) is "a national non-profit alliance of local, state and federal scientists, law enforcement officers, land managers and other professionals dedicated to upholding environmental laws and values." Among other things, PEER serves as the voice of government employees who object to "anti-environmental" policies and practices within government agencies.

One of PEER's campaigns is challenging "Faith-based Parks." Specifically, PEER is concerned that the Bush Administration has pushed the National Park Service to reject scientific analysis and explanations in an effort to cater to religious fundamentalists. Among other things, PEER claimed that the Bush Administration was pressuring NPS employees to accomodate creationist explanations of the Grand Canyon's history, and tell the public that the canyon in thousands, rather than millions, of years old. PEER claimed in a press release that:

Grand Canyon National Park is not permitted to give an official estimate of the geologic age of its principal feature, due to pressure from Bush administration appointees.

After extensively researching PEER's claims -- and forcing a partial retraction -- Shermer is understandably distraught (in part because he initially cited PEER's charge uncritically). Perhaps the NPS shouldn't sell the offending book in its book stores, but this is hardly proves PEER's initial claims. As Shermer explains, the controversy over selling creationist books "is an old one now, and completely irrelevant to the claim that NPS employees are withholding information about the age of the canyon, and/or are being pressured to do so by Bush administration appointees." PEER's claims to the contrary -- and protracted efforts to defend the charge and deflect Shermer's inquiries -- were an "egregious display of poor judgment and unethical behavior," Shermer concludes. In the end, it seems that PEER's hostility to the Bush Administration caused it to overstate the facts. There are enough examples of political manipulation of scientific claims without the need for PEER or others to invent new ones.

An Ohio court found that Brayton Purcell, a California plaintiffs' firm, submitted fraudulent asbestos claims and that partner Christopher Andreas, among other things, made statements to the court that "were patently false and could only have been designed to deceive this court and [defendant] Lorillard." As a consequence, Judge Harry Hanna has revoked their pro hac vice privileges in Cuyahoga County.

Federal employees apparently owe some $2.8 billion in federal income taxes. Paul Caron at TaxProf reports that, measured in terms of the percentage of employees who are tax scofflaws, the worst agencies are the U.S. Commission on Civil Rights (9.43%), the Government Printing Office (7.41%), and the Smithsonian (5.56%). Also worth noting, apparently 4.85 percent of Tax Court employees are tax scofflaws as well.

Here's a long-belated link to Blawg Review. Why haven't any of us linked to it before? I dunno. (Another relevant question, why hasn't the VC ever hosted the Blawgreview?)

The Wall $treet Journal has an interesting subscribers-only op-ed by Jyllands-Posten culture editor Fleming Rose and Bjorn Lomborg on Al Gore's unwillingness to debate or take tough interview questions on his movie and book, An Inconvenient Truth. As Rose and Lomborg tell it, Jyllands-Posten, the Denmark's largest newspaper, had an interview scheduled with Gore to conicide with his visit to the country. The paper also planned to include Lomborg as a counterpoint in the interview, but it was not to be.

The interview had been scheduled for months. Mr. Gore's agent yesterday thought Gore-meets-Lomborg would be great. Yet an hour later, he came back to tell us that Bjorn Lomborg should be excluded from the interview because he's been very critical of Mr. Gore's message about global warming and has questioned Mr. Gore's evenhandedness. According to the agent, Mr. Gore only wanted to have questions about his book and documentary, and only asked by a reporter. These conditions were immediately accepted by Jyllands-Posten. Yet an hour later we received an email from the agent saying that the interview was now cancelled. What happened?

One can only speculate. But if we are to follow Mr. Gore's suggestions of radically changing our way of life, the costs are not trivial. If we slowly change our greenhouse gas emissions over the coming century, the U.N. actually estimates that we will live in a warmer but immensely richer world. However, the U.N. Climate Panel suggests that if we follow Al Gore's path down toward an environmentally obsessed society, it will have big consequences for the world, not least its poor. In the year 2100, Mr. Gore will have left the average person 30% poorer, and thus less able to handle many of the problems we will face, climate change or no climate change.

Al Gore is on a mission. If he has his way, we could end up choosing a future, based on dubious claims, that could cost us, according to a U.N. estimate, $553 trillion over this century. Getting answers to hard questions is not an unreasonable expectation before we take his project seriously. It is crucial that we make the right decisions posed by the challenge of global warming. These are best achieved through open debate, and we invite him to take the time to answer our questions: We are ready to interview you any time, Mr. Gore — and anywhere.

I should also add that those who claim that there is no "proof" of global warming are also engaged in a bit of sleight of hand. Of course there are uncertainties — but that hardly makes climate change different than other environmental concerns (or other subjects of scientific inquiry).

As regular VC readers already know, I believe the preponderance of scientific evidence supports the theory that human activities are producing an enhanced greenhouse effect that is altering the earth's climate, and is likely to produce significant (albeit not catastrophic) warming over the next century. In other words, I accept the basic scientific findings of the U.N. Intergovernental Panel on Climate, but remain dubious of some of the model projections, particularly those based on highly questionable assumptions about future trends in population, economic growth, and energy use.

The fact is that the vast majority of the available evidence conforms with our general understanding of the how the climate system works and how it is likely to respnd to increases in greenhouse gas concentrations. There are debates and disputes about specific questions, ranging from the extent and nature of various feedback mechanisms, the relative contribution of certain exogenous factors, and how climate changes will affect other global trends such as sea-level rise, but this does not mean climate change is a made up concern. Uncertainty is a fact of life. It is one thing to note uncertainties when the stakes are high — as they certainly are on all sides of the climate policy debate — quite another to exaggerate uncertainties when politically convenient. I genuinely fear many of the governmental policies climate fears may be used to justify, but it would be disingenuous for me to respond by denying the real threats posed by climate change. I wish more of my political or ideological "allies" felt the same way.

The issue to me is not whether human activities are affecting the climate system (it is almost certain they are). Nor is it whether there should be a policy response — I think there should be, even if it means measures that are otherwise in tension with my fairly libertarian views of government. Rather, the issues are how we assess a risk of this magnitude and how we develop policy responses when the costs of climate policy rival those of climate change itself. Neither apocalyptic environental claims, such as those put forward by Gore, nor ideologically convenient denial of the evidence, does much to advance this debate.

The American Cancer Society reports that total cancer deaths in the United States have declined for the second straight year. This is singificant because, while cancer death rates have been declining for some time, the number of cancer deaths had continued to climb. No more. As the New York Times reports:

The number of cancer deaths in the United States has dropped for the second year in a row, the American Cancer Society reported yesterday. The finding suggests that the small drop reported last year — the first in more than 70 years — was real, possibly the start of a continuing decrease and not merely a statistical fluke, researchers said.

Much of the decrease is due to smoking cessation and improved detection and treatment of colorectal, breast and prostate cancers. . . .

The death rate from cancer has been falling by slightly less than 1 percent a year since 1991, but until 2003 the actual number of deaths kept rising because the population was growing and aging. Then, in 2003, the cumulative drop in death rates finally became large enough to outpace aging and population growth.

“The decline in the cancer death rates, which has ultimately resulted in a decline in the total number of deaths, really reflects the years of effort and investment in tobacco control, programs for early detection and screening, and programs in clinical and basic research,” Dr. Ward said. “We’ve made a great deal of progress, but we still have a long way to go.”

One great concern, Dr. Ward said, is that African-Americans have markedly higher death rates than whites from nearly every type of cancer. Researchers do not fully understand why. Having less income, education and access to health care account for much of the difference, but not all of it, researchers say.

In potentially unrelated news, a new study concludes that the average nicotine level in cigarettes increased from 1997 to 2005.

UPDATE: A commenter wonders why the average cigarette level is potentially relevant to this story given the lag between smoking. Simple. Insofar as cancer incidence and mortality trends are influenced by trends in tobacco use -- and they clearly are -- a change in cigarette nicotine levels could influence smoking rates, and this could affect future trends in cancer incidence and mortality, and have an effect on whether the current positive trends continue.

The Cato Institute's Jerry Taylor and Peter Van Doren are all in favor of eliminating energy subsidies. By that measure, they find the House Democrats' 100-hour energy legislation -- H.R. 6, the Creating Long-Term Energy Alternatives for the Nation Act (aka the "CLEAN Energy Act") -- to be quite a disappointment.

The Republican abandonment of economic principle and subsequent love affair with K Street lobbyists gave the Democrats a wonderful opportunity to launch a politically winning total war on corporate welfare. Pity that they don’t seem interested in taking advantage of it.

It appears that some viewers were upset with a Fox cameraman's focus on a particular t-shirt during the Philadelphia Eagles-New Orleans Saints game last week -- and not because they were Eagles fans. The American Family Association is asking its members to file complaints with the FCC. Stay tuned.

I don't follow other circuit courts of appeal closely enough to know for sure whether the U. S. Court of Appeals for the Sixth Circuit is particularly divided over the handling of habeas corpus petitions, but it sure seems that way. The latest evidence is two opinions issued by two different divided panels yesterday.

In Van v. Jones, a panel addressed the question of first impression whether a Michigan defendant's consolidation hearing is a "critical stage" of the criminal proceedings against him, such that the absence of counsel requires the issuance of a writ of habeas corpus. Chief Judge Danny Boggs, writing for the majority, answered the question in the negative, after an extensive review of the "critical stage doctrine" and how it could apply to a consolidation hearing.

It is settled that a complete absence of counsel at a critical stage of a criminal proceeding is a per se Sixth Amendment violation warranting reversal of a conviction, a sentence, or both, as applicable, without analysis for prejudice for harmless error. . . . But what is a critical stage?

If the consolidation hearing was a critical stage because Van's counsel was entirely absent, there is no need to make a showing of prejudice. Whether it was a critical stage depends on whether there was a reasonable probability that Van's case could suffer significant consequences from his total denial of counsel at this stage Perhaps the best way of reaching an answer to that query is to ask whether Van had any opportunity, subsequent to the consolidation hearing, to recover or exercise whatever privilege he lost at the hearing.

Here, it seems that the balance tips on the side of this being a procedural step where counsel's absence would, as a structural matter, be unlikely to be necessary to prevent incurable prejudice. This is not to say, however that counsel's action in not appearing for a noticed hearing on the motion to consolidate was professional or excusable, nor that, in an appropriate case, a claim for ineffective assistance of counsel might succeed. However, Van's claim here is not couched in terms of ineffective assistance of counsel, nor, on this record, is it likely that he could demonstrate prejudice.

Judge Moore dissented, arguing that "a defendant who is unrepresented by counsel at a consolidation hearing is exposed to a serious risk of prejudice." Judge Moore noted that, because "joint trials are often favored at law," counsel is necessary to counterbalance a trial judge's potential tendency to favor consolidation. Thus, Moore would have held that a consolidation hearing is always a critical stage of the pretrial process, and the absence of counsel at such a hearing is per se reversible error.

In Benge v. Johnson, the court considered Michael Benge's habeas petition challenging his conviction and death sentence for aggravated murder and aggravated robbery. The panel easily disposed of six of Benge's claims, but divided on the seventh, "whether a jury instruction incorrectly precluded the jury from considering the affirmative defense of voluntary manslaughter."

Judge Gilman, joined by Judge Rogers, rejected Benge's claim.

In attempting to excuse his procedural default, Benge must demonstrate “that there was cause for the default and prejudice resulting from the default, or that a miscarriage of justice will result from enforcing the procedural default in the petitioner’s case.” [citation omitted]. Because we conclude that Benge has failed to show the actual prejudice necessary to excuse his procedural default, we will assume without deciding that the district court correctly determined that the first prong of Strickland was satisfied. . . .

The dissent correctly notes that the erroneous jury instruction effectively foreclosed the possibility that the jury could have found Benge guilty of the robbery but not guilty of the murder. We also recognize, as the dissent emphasizes and as the district court itself acknowledged, that “[a] conviction for aggravated robbery does not as a matter of law preclude an affirmative defense of provocation with regard to a related murder charge.” . . But the dissent fails to persuade us that there is a reasonable probability that a properly instructed jury would have concluded that Benge met this affirmative burden. . . .

What Benge could have done, however, is irrelevant at this stage in the proceedings. We must be able to say that a reasonable probability exists that a properly instructed jury would have concluded that Benge had shown provocation by a preponderance of the evidence. Given that Benge’s provocation defense rested almost exclusively on his own extremely dubious and at times inconsistent testimony, we are unable to so conclude.

Although I agree with the bulk of the majority’s analysis, I believe that Benge has presented one meritorious claim that should entitle him to a writ of habeas corpus. When Benge’s attorney failed to object to the jury instructions regarding the lesser included offense of voluntary manslaughter, resulting in a jury charge that the Ohio Supreme Court later acknowledged was erroneous, he failed to provide Benge effective assistance of counsel. Because I believe a habeas writ should issue regarding that claim under Strickland v. Washington, 466 U.S. 668 (1984), I respectfully dissent.

UPDATE: Decision of the Day also profiles these two cases here. (Also note that DotD has a new address.)

GMU law professor Joshua Wright takes sides in the Posner-Becker dialogue over libertarian paternalism.

It is not enough to justify paternalistic intervention (soft, hard, libertarian, or otherwise) simply to show that consumers make mistakes. The burden of proof is to demonstrate that the government can make better choices for the individual than can the individual. In accounting for the long run costs of paternalism, we must also be mindful of dynamic effects that are likely to follow from paternalistic decision-making before intervening.

According to this story, some Texas lawmaker is trying to rewrite the history of the hamburger. Texas State Represenative Betty Brown is offering a resolution claiming the hamburger was invented in Athens, Texas. In reality, however, the hamburger was invented around 1900 in New Haven, Connecticut, at Louis' Lunch. How do I know? Because the guy at Louis' Lunch told me.

In a letter to the editor, published in today's Washington Post, Deputy Assistant Secretary of Defense for Detainee Affairs Cully Stimon aplogizes for his remarks last week:

During a radio interview last week, I brought up the topic of pro bono work and habeas corpus representation of detainees in Guantanamo Bay, Cuba. Regrettably, my comments left the impression that I question the integrity of those engaged in the zealous defense of detainees in Guantanamo. I do not.

I believe firmly that a foundational principle of our legal system is that the system works best when both sides are represented by competent legal counsel. I support pro bono work, as I said in the interview. I was a criminal defense attorney in two of my three tours in the Navy Judge Advocate General's Corps. I zealously represented unpopular clients -- people charged with crimes that did not make them, or their attorneys, popular in the military. I believe that our justice system requires vigorous representation.

I apologize for what I said and to those lawyers and law firms who are representing clients at Guantanamo. I hope that my record of public service makes clear that those comments do not reflect my core beliefs.

For news coverage of the apology, see these stories from Reuters and the Post.

Eric Muller has an interesting post on Is that Legal? on the representation of Japanese detainees in World War II. It provides some interesting historical perspective on the Stimson flap. Notes Muller, "In World War II, the federal government and the American Bar Association explicitly called on American attorneys to undertake the legal representation of internees of Japanese ancestry -- citizens and aliens alike."

Harvard Law Professor and former U.S. solicitor general Charles Fried has an op-ed in today's Wall Street Journal (available here) on Cully Stimson's comments. Here's a taste:

Defense Department official Charles Stimson showed ignorance and malice in deploring the pro bono representation of Guantanamo detainees by lawyers in some of the nation's leading law firms, and in calling on their corporate clients to punish them for this work. . . .

It is the pride of a nation built on the rule of law that it affords to every man a zealous advocate to defend his rights in court, and of a liberal profession in such a nation that not only is the representation of the dishonorable honorable (and any lawyer is free to represent any person he chooses), but that it is the duty of the profession to make sure that every man has that representation. . . .

All that can be said in explanation, if not mitigation, of Mr. Stimson's egregious statements is that he may have been led on by the extravagant rhetoric of ideologues at the other end of the spectrum, who regularly inveigh against law firms which make their living by defending corporate interests accused of abusing employees, consumers and the environment.

Read the whole thing.

At the Becker-Posner blog,, Becker and Posner discuss "libertarian paternalism" (albeit in reverse order. Here is Judge Posner's take, and here is Becker's critique.

Not many government officials are known to blog — at least not under their own names. That is what makes John Bellinger's guest-blogging stint at Opinio Juris so interesting. Bellinger is is the State Department Legal Adviser, i.e. the top lawyer at the Department of State. His posts to date are chained here.

In reviewing the comment threads, I think many have lost sight of what caused me and many others (including, at last count, over fifty law deans) to react so strongly -- and so negatively -- to Cully Stimson's comments about law firms representing detainees. The issue is not what legal process Guantanamo detainees should or shold not receive; nor is it whether major law firms should devote their resources to these cases or some other cause. Rather, it is whether it is appropriate and ethical for a government official with legal training to discourage private attorneys from representing unsavory clients in legal proceedings.

The best defense of Stimson's remarks probably comes from Michael Abramowicz at Concurring Opinions. Michael is inclined to give Stimson the benefit of the doubt, and interpret his remarks very charitably. I understand Michael's point, but I don't buy it. Listening to the interview, I did not -- and still do not -- judge Stimson's intent so innocently, particularly in light of the quotes in the WSJ indicating that Stimson, or someone else, was seeking to discourage firms from defending detainees. While I would agree that Stimson's comments are not sancitonable, they are still objectionable, particularly coming from someone with legal training in his position.

It is well established that prosecutors have greater ethical obligation than private attorneys and, in particular, have an obligation to ensure the fairness of judicial proceedings – even where this may undermine the government’s ability to secure a conviction. Stimson is not a prosecutor in his current position, but he is a former JAG and U.S. attorney, so he knows the rules. More important in this instance, he is an official involved with the detention and prosecution of detainees. He is, after all, Deputy Assistant Secretary of Defense of Detainee Affairs. Insofar as detainees are entitled to judicial process, whether habeas proceedings to challenge their detention or trials for alleged violations of the law of war, they are entitled to the defense counsel of their choice, not the government’s. Deliberate action by a government attorney to interfere with that choice is unethical, and contrary to the spirit, if not the letter, of the relevant rules of legal ethics.

Last month, the city of Berkeley became the first local jurisdiction to regulate nanotechnology as such. The New York Times reports that businesses within Berkeley that use nanoparticles measuring 100 nanometers or less in any dimension are required to file reports with local regulators. Interestingly enough, the regulation exempts the University of California and Lawrence Berkeley National Laboratory.

UPDATE: As initially drafted, I misakenly referred to the Lawrence Livermore Laboratory instead of the Lawrence Berkeley National Laboratory.

Ronald Cass, Dean Emeritus of the Boston University School of Law, is still looking for answers about Sandy Berger's burgaling. As he points out, the only assurance that Berger did not destroy unique documents is Berger's word — and given what transpired in this episode, that is hardly reassuring.