Saturday, February 10, 2007Branson's Climate Prize:
Richard Branson is offering a $25 million prize for the development of a technology capable of removing carbon dioxide from the atmosphere. Related Posts (on one page):
Salmon Baked in a Sea Salt Crust:
Reader Ethan Hahn reports: I used your salt-encrusted salmon recipe over the summer for a big 8-person meal we were having ... — your recipe was absolutely perfect! It made a lot of food, tasted wonderful, and was extremely impressive looking too! And I just realized today that I never thanked you for posting it — Instapundit's post about the blog recipe book reminded me.I take no credit for the recipe — I just pass along what I was given — but I thought it might be worth passing along again. My Finger Is Well Off the Pulse of the Blogosphere:
I've been quite pleased by the mainstream media reception of my Parent-Child Jihadist Speech op-ed; it ran originally in the L.A. Times, but it's been reprinted in the Atlanta and St. Petersburg newspapers, as well as a couple of others (including this one); NPR Weekend Edition and a local NPR affiliate did something on this, too, as did a Philadelphia radio station and the conservative syndicated Lars Larson radio show. On the other hand, I had expected there'd be more attention from various blogs and radio programs that often cover radical Islam and the law. I figured the case that my story had uncovered had it all: The First Amendment; jihadism; parental rights; child welfare. Yet I've had much less original posts yield much more interest among blogs and radio programs, especially conservative ones. I'm not trying either to brag or to complain here; I'm pleased with the attention the story has gotten, and while I think it's interesting, I never expected it to cause a huge stir. Still, I wonder: Did I misjudge the likely interest? Did I just not publicize the story enough? Should I have taken heroic measures to keep Anna Nicole Smith alive for several more days? What can I do in the future to try to draw more attention to such matters? I'd love to hear any speculation or advice that people might have. Related Posts (on one page):
The Peninsula On-line:
My op-ed on the jihadist father gag order was rerun in "The Peninsula On-line." Question (no fair googling): Which peninsula? Hint below. Climate report too quickly embraced by journalists:
So says my latest media analysis column in the Rocky Mountain News, which criticizes the press for its overly credulous reporting of the latest output from the UN's Intergovernmental Panel on Climate Change. The column also looks at media coverage of a bill to mandate HPV vaccines for 6th grade girls; the factoid that only 2% of rape accusations are false; and the lingering influence of Michael Bellesiles on "The Mini Page." NPR Weekend Edition on the Jihadist Father Gag Order Case:
Hear Scott Simon's mellifluous voice, plus my voice, here. It's about 4.5 minutes, which is an eternity in national radio time; I was delighted that NPR was interested in the story. Related Posts (on one page):
"Scenes from the Climate Inquisition":
AEI's Steven Hayward and Kenneth Green defend their climate policy projects in the Weekly Standard. Here's a taste:
Of interest to those who have been following this story, Hayward and Green provide some backstory on their letter to Professors Schroeder and North at Texas A&M, and how this became a major story.
They further seek to place the episode in the context of a broader cliamte "inquisition":
Related Posts (on one page):
Errors in the Baltimore Sun's Coverage of the Maryland "Quick Take" Case:
Today's Baltimore Sun has a generally informative article about Mayor of Baltimore v. Valsamaki, the Maryland Court of Appeals decision limiting the power of local governments to engage in "quick take" condemnations. Unfortunately, the article also contains at least three serious errors. Sun reporter Jill Rosen writes that Valsamaki "runs counter to the [US] Supreme Court's 2005 decision giving governments broad powers to take properties for private development." Presumably, Rosen is referring to Kelo v. City of New London. Unfortunately, her statement actually contains two separate errors. First, Kelo only addressed the constitutionality "economic development" takings under the federal Constitution. It decided nothing about their permissibility under state constitutional or statutory law. As I explained in this post, Valsamaki was in fact decided on the basis of Maryland statutory law. Perhaps Rosen meant to say that Kelo, although not binding on state courts interpreting state law, still encourages them to interpret eminent domain power broadly. But even this conjecture is contradicted by the text of the Kelo decision. In his majority opinion for the Court, Justice John Paul Stevens wrote:
Second, even if Kelo could be interpreted as applying to state law, Valsamaki still wouldn't "run counter" to it. Kelo addressed the question of the purposes of condemnation, holding that takings for the purpose of promoting "economic development" are permissible. By contrast, Valsamaki addressed only the procedural device of "quick take" condemnations. It is perfectly consistent for the Maryland high court to hold (as indeed it has) that takings for "economic development" are permissible, but that they and other takings cannot - in most cases - be implemented through the quick take procedure. Wrong, in my view (because I disagree with the Court's 1975 decision holding that "economic development" condemnations are permissible), but not inconsistent. In addition, Valsamaki, unlike Kelo, turned on statutory issues, not constitutional ones. Another important error in Rosen's article is her statement that the quick take procedure was "a tactic hardly tested in the legal system." In reality, numerous state and local governments have routinely used quick take condemnations for years, and courts have generally accepted the practice. As Institute for Justice attorney Dana Berliner stated in a quote elsewhere in the article, the decision will mark "a big change for a city [Baltimore] which basically has used quick take for all of its acquisitions." And Baltimore was certainly not alone. A quick (and by no means exhaustive) Westlaw search reveals dozens of state cases addressing various aspects of "quick take" condemnations, many of them endorsing the permissibility of the procedure. For example, the Rhode Island Supreme Court upheld the constitutionality of its state's "quick take" law just last year in Rhode Island Economic Development Corp. v. Parking Company, 892 A.2d 87 (R.I. 2006)(a decision that also to some extent tightened Rhode Island's constitutional standards limiting the purposes of condemnation). I realize that nonspecialist reporters working against short deadlines will necessarily make some mistakes. However, it seems to me that these particular errors - which might have been prevented simply by a cursory reading of Kelo and a quick Lexis-Nexis search - could have been avoided without great difficulty. If nonexpert journalists cannot be expected to do even this much, then the Post and other major papers should hire specialist reporters who focus on covering legal issues. Jan Crawford Greenburg is an excellent example of a specialist legal reporter who really knows her stuff. NOTE: I do not mean to deny the possibility that U.S. Supreme Court decisions interpreting the federal Constitution can sometimes influence state court decisions interpreting similar provisions in state constitutions. That has certainly often happened in the past. In the case of Kelo, however, any such influence is likely to be diminished by Justice Stevens' explicit statement that Kelo's federal holding does not constrain state decisions. In any event, this possible effect of Kelo does nothing to validate Rosen's statement that Valsamaki (which did not even address a constitutional issue) "runs counter" to Kelo. Related Posts (on one page):
Friday, February 9, 2007Our First Citation in Voir Dire?
Or at least it's the first one known to us. From Pachacutec (Huffington Post), blogging last month about the examination of potential jurors in the Libby trial, and quoting "one of the day's last potential jurors[,] a young defense attorney from one of the law firms in town":
"Want, Take, Have" - Buffy the Vampire Slayer and "Quick Take" Condemnations:
The philosophy behind "quick take" condemnations, a particularly pernicious type of taking discussed in my last post, is well summarized in this classic dialogue from Buffy the Vampire Slayer. Faith, an unscrupulous fellow slayer, tries to persuade Buffy to adopt her amoral philosophy of life:
Because of a seemingly pressing immediate need, Buffy and Faith take the property of others without going through the usual procedures and without getting the consent of the owner. The rationale for "quick take" condemnations is exactly the same. Yes, unlike Buffy and Faith, governments that use quick take pay compensation; but that compensation is generally well below the true value of the property to the owner, and the latter still ends up losing his land, and often loses the structures built on the land even if it turns out that the condemnation was illegal. The two slayers eventually learned the error of their ways. Not so with most of the state and local governments that use quick take. UPDATE: Later on in the same episode, Faith argues that vampire slayers have the right to take things they need without paying for them because of all the benefits they provide to society by protecting the world from vampires and demons. This argument is very similar to Justice Brandeis' dissenting opinion in the famous takings case of Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922), where he claimed that the government had the constitutional right to engage in uncompensated regulatory takings in part because it provides property owners with "the advantage of living and doing business in a civilized society." Perhaps we Property professors should teach takings law by having the class watch BTVS episodes:)! UPDATE #2: Somewhat surprisingly, several commenters have argued that Buffy and Faith wre actually justified in trying to steal the weapons. Maybe they would have been in if they were in imminent danger of being attacked by the vampires. In fact, however, it was the slayers who were planning to attack the vampires (who didn't know that B and F were there), not vice versa. Private citizens - and even police - have no legal or moral right to steal weapons in order to catch criminals unless they really are in immediate danger from them. A bounty hunter or private detective can't steal your gun and then claim that he was justified because it helped him track down and neutralize a fugitive criminal. Even if there were an immediate danger, the "necessity" defense would only allow the slayers to use the weapons to defend themselves in that particular encounter, not keep them permanently. Finally, I think it's pretty clear that Faith's "Want, Take, Have" philosophy is not limited to the facts of this particular case. It applies to any situation where the slayers need something quickly - or even just think they do. It was that general principle - which is remarkably reminiscent of the way quick take condemnations are used in Baltimore and elsewhere - that I meant to criticize. Related Posts (on one page):
Utah Legislature Passes (Near-)Universal School Choice,
though with a scholarship amount that is likely to pay only for part of the tuition, and an amount that declines dramatically with the parents' income. The governor is apparently expected to sign it; here's a summary of the bill:
I generally — though tentatively, given that my view is based mostly on general principles rather than serious review of the research — support school choice, so I think this is a good plan, even if less ambitious than I would have liked. But more importantly it should prove an important experiment that may give some guidance for future plans (though I recognize that the results of such experiments are often hard to measure). Related Posts (on one page):
Lesson #1 About the Law -- What You Did Was Against It;
Title #2 — "Ayn Rand Would Not Have Approved": PhillyBurbs.com reports:
The story also reports that "Siangchin is charged with potential to change the world," but I'm pretty sure that this is because a block of text was inadvertently repeated. (By the time you read this, the glitch might have been fixed.) Thanks to Sebastian (Snowflakes In Hell) for the pointer. Maryland Supreme Court limits "Quick Take" Condemnations:
In Mayor of Baltimore v. Valsamaki an important decision issued yesterday, the Maryland Court of Appeals (that state's supreme court), ruled that cities can only condemn property through "quick take" procedures if they prove that there is an "immediate necessity" for doing so. As Tim Sandefur of the Pacific Legal Foundation explains in his post on the case, "quick take" procedures essentially enable the government to take your property first and ask questions later:
The decision is important because "quick take" condemnations often enable government to get away with legally dubious condemnations. Once whatever buildings originally existed on the property are destroyed, the owner has little incentive to continue to pay the costs of litigating the case instead of settling for the "fair market value" compensation provided by the government. Valsamaki is based on state statutory law rather than the Maryland state Constitution, so it can potentially be reversed by the state legislature. The relevant law (as quoted in the decision) permits quick take condemnations only if the government has filed "a Petition under oath stating that it is necessary for the City to have immediate possession of, or immediate title to and possession of, said property, andthe reasons therefore," and "[i]f it appears from a Petition for Immediate Possession, with or without supporting affidavits or sworn testimony, that the public interest requires the City to have immediate possession of said property." Md. Code Public Local Laws of Baltimore City, Section 21-16. As the Court's opinion shows this language, combined with standard canons of interpretation provides strong justification for placing the burden of proof on the government rather than the property owner. This is a strictly limited ruling. In addition to being based on statutory rather than constitutional law, it does not constrain the purposes for which government can condemn property, but merely requires it to prove that there is an "immediate necessity" for circumventing the usual procedural rules for takings (which include allowing the owner to challenge in court the government's claim that the taking is for a legitimate "public purpose" as required by the state constitution). Maryland courts define "public purpose" extremely broadly, having upheld the condemnation of property for "economic development" purposes in a 1975 decision, Prince George’s County v. Collington Crossroads, 339 A.2d 278, 287 (Md. 1975). This case is, of course, Maryland's state constitutional equivalent of Kelo v. City of New London, which held that takings for economic development are permissible under the federal Constitution. As I have explained in numerous articles (e.g. - here), such condemnations provide tremendous scope for abuse, and rarely if ever succeed in fostering additional development that is worth its costs and is greater than what would have occurred through ordinary market transactions. Since Kelo, Maryland is one of fourteen states that have failed to enact any reform legislation at all, despite (or perhaps because of) the fact that the state is notorious for its dubious condemnations. In a forthcoming paper that I hope to post soon on SSRN, I include tentative data suggesting that Maryland makes greater use of condemnations that transfer property from one private owner to another then all but three or four other states. There is, therefore, still much work to be done to protect property rights in Maryland. But Valsamaki is a step in the right direction, though it remains to be seen whether the Maryland legislature will allow the decision to stand. Related Posts (on one page):
Where Are All the Nigels?
So here's one thing that has long puzzled me — the U.S. was founded mainly by English immigrants, which is why we speak English and use many of the same names that are used in England. But some names that seem not uncommon in England are very rare in the U.S. Nigel is the one that I notice whenever I hear it (almost invariably in reference to someone from England), but Sebastian, Clive, and Simon also qualify, and I'm sure others do as well. Simon is also a pretty common name in Russia, and I'd guess in other places as well; but not in the U.S., where its frequency (1990 data) is only 0.026%, roughly at the level of Roosevelt and Forrest. What happened? Why did those names stop at the water? Am I exaggerating their popularity in England? Were they unpopular even in England at the time the main migrations to the U.S. took place? Is there something just plain un-American about them? Bonus question: Sergey is a common name in Russian, and I believe Sergio is in Spanish and Serge in French; all stem from a Latin gens name. Why isn't there a not uncommon English equivalent, much as Claude, Julius, Anthony, and the like are English cognates of other Latin gens names? UPDATE: Thanks to commenter Cornellian for pointing out that Clive, which I had originally omitted, fits the same pattern. The Senatorial Inquisition of AEI:
Spurred by the allegations that the American Enterprise Institute sought to "buy scientists" to challenge the IPCC report, four Democratic Senators wrote to AEI President Chris DeMuth to challenge AEI's actions and demand an apology. In their letter, Senators Bernie Sanders, Patrick Leahy, Dianne Feinstein, and John Kerry, alleged that if the published reports that AEI sought to "bribe" scientists were accurate, "it would be both disappointing and inexcusable." The Senators further proclaimed that they "would not stand silently by while organizations attempt to undermine science through offers of significant amounts of money." The letter concludes:
In the meantime, it is clear that the Senators were not reserving judgement about AEI's alleged conduct. In a press release about the letter, Senator Sanders declared:
AEI President Chris DeMuth did not take this lying down. His strongly worded response (complete with attachments) is posted on AEI's website here. Writes DeMuth:
The Wall Street Journal editorializes on the exchange here. Related Posts (on one page): Adler v. Mooney -- One Last Time:
Continuing the discussion over the alleged GOP "War on Science," Chris Mooney offers a surreply to my reply here. As I think we've both said most of what we have to say, I will only make a three quick, final points. First, if Mooney's ultimate claim about the Bush Administration and embryonic stem cells is nothing more than Administration officials spun the science in their talking poitns to support the decision, then I don't see the big deal. Indeed, it reduces the difference between Bush abuses and those of others on this issue (e.g. John Edwards) to be little more than who was in power at the time. And on this count, it's very difficult to argue the Clinton Adminsitration was not just as guilty (as were prior Administrations). Carol Browner, for instance, used to exaggerate scientific claims related to the asthma-air pollution connection (and other things) all the time as EPA Administrator. I (and others who have reviewed the book) took Mooney to be making a stronger claim about the nature of the Bush Administration's actions in his book. If I was mistaken, I think the example loses much of its force. Second, on the DQA, I agree that it creates opportunities for industry groups and others to challenge the scientific basis for government regulations. My point is that More precautionary alternatives make it easier for activist groups (and industry, which often seeks regulation as an anti-competitive measure), to spur government regulation when a sound scientific predicate is lacking. The ESA is a good example here. I believe the Act's use of the "best available" science is the right standard, but it certainly allows for the listing of species based upon preliminary evidence that may be subsequently shown to be erroneous. Third, on whether precautionary principle adovcates seek to don the mantle of science, the first blurb promoting the book I cited proclaims the principle is "a rational, practical, fair-minded, powerful, science-based approach for making the world a safer, more livable place." The quote is from ecologist Sandra Steingraber, who has her own book advocating the precuationary principle. Other examples in the literature are equally easy to come by. Related Posts (on one page): DC Circuit Upholds Injunction in Iraqi Transfer Case:
Today the D.C. Circuit handed down a divided opinion in Omar v. Harvey, a case involving a planned transfer of a detainee in Iraq from U.S. forces to Iraqi officials. The case rests on some hypertechnical questions, but we may be hearing more about it in the future: it not only touches on the role of the courts in wartime, but it also features a dissent by Judge Janice Rogers Brown that is sure to draw attention if another vacancy arises at the Supreme Court.
Shawqi Ahmad Omar was captured by U.S. forces during a raid on associates of Abu Musab al-Zarqawi. The two sides to the litigation present different stores of what Omar was doing when captured. The government believes Omar was an insurgent who is part of Zarqawi’s network, and states that weapons and IED-making materials were found in his Baghdad home. Omar contends this is wrong, and that he came to Iraq after the invasion simply to seek work and was about to leave the country before he was arrested by U.S. forces. Both sides seem to agree that Omar has dual American/Jordanian citizenship; he received U.S. citizenship after marrying a U.S. citizen, the former Sandra Kay Sulzle. Omar's family brought a habeas corpus action in the U.S. District Court asking the Court to order Omar's release from detention, or in the alternative to order Omar to be brought before a U.S. Court and not transfered out of U.S. custody to try to evade habeas corpus. Meanwhile, a military review panel in Iraq concluded that Omar was an enemy combatant, and the miltary decided to transfer him to the Central Criminal Court of Iraq, a Baghdad-based Iraqi criminal court. Omar's family sought a TRO and later a preliminary injunction ordering the military not to transfer Omar out of U.S. custody while the case was before the U.S. Courts. The district court agreed, entering a preliminary injunction stating that the government "shall not remove [Omar] from United States or MNF-I custody, or take any other action inconsistent with this court’s memorandum opinion." Today's decision is the appeal from the injunction and addressed two issues: first, was the injunction procedurally improper because detention of enemy combatants in wartime is a political question, and second, was the district court's preliminary injunction an abuse of discretion on the merits? All three Judges on the panel — Tatel, Edwards, and Brown — agreed that the legality of the detention was not a political question. However, they divided on whether the injunction was an abuse of discretion on the merits. Much of the decision is hypertechnical, for example, on what just what the District Court meant when it ordered that Omar could not be "removed." Did that mean that he could not be transfered out of U.S. custody, or did it actually mean that the Court was ordering that Omar could not be transfered or released?. Judge Tatel's majority opinion concludes that it meant only the former, and that the injunction is proper. Judge Brown dissented on the propriety of the injunction. Given that Brown is often mentioned as a future pick if the Bush Administration has another Supreme Court vacancy to fill, and that the President presumably is very interested in Judge Brown's views of Executive power — and that Judge Brown knows all of this — her dissent is particularly worth reading. As far as I know, this is the first opinion on a hot-button question that she has written as a federal Judge. Here are some excerpts that you can be sure will be read closely by the White House if another vacancy occurs: In addressing the propriety of this injunction, I note first that we heard arguments in this case on the portentous date of September 11, 2006, precisely five years after the terrorist attacks that so fundamentally altered this country’s attitude toward security. No longer could we sit back and consider ourselves safe from foreign enemies so long as no other nation wished us harm. The Founders envisioned wars in the paradigm of the time, with official declarations from heads of states announcing the beginning and end of hostilities. In today’s world, by contrast, global alliances of non-state actors can visit death and destruction on the American homeland without warning, on a scale equal to that seen in conventional wars. In such an environment, it would be dangerous folly to deny what this case involves: the capture of an alleged enemy combatant by American military personnel operating in a war zone.Thanks to How Appealing for the link. Dabney Friedrich To Be Nominated to District Court in DC:
Via Confirm Them, I recently learned the terrific news that Dabney Friedrich is expected to be nominated to a seat on the United States District Court for the District of Columbia. I worked with Dabney when she was an Assistant U.S. Attorney in the Eastern District of Virginia, and she was top-notch; fair, thoughtful, and extremely sharp. She will make an outstanding judge, and I'm delighted that she is expected to be nominated.
Thursday, February 8, 2007The New Anti-Blasphemy Laws:
Debra Saunders, an S.F. Chronicle columnist, writes: This story starts with an "anti-terrorism rally" held last October on campus by the College Republicans. To emphasize their point, students stomped on Hezbollah and Hamas flags. According to the college paper, the Golden Gate (X)Press, members of Students Against War and the International Socialist Organization showed up to call the Republicans "racists," while the president of the General Union of Palestinian Students accused the Repubs of spreading false information about Muslims.As to the disciplinary action contemplated by SFSU, and FIRE's reaction to it: The university's response [to FIRE]? Spokesperson Ellen Griffin told me, "The university stands behind this process."Sounds to me like SFSU is acknowledging that under SFSU rules, desecrating Allah — or, to be precise, desecrating religious symbols — is indeed prohibited. Everything old (here, blasphemy bans) is new again. All Related Posts (on one page) | Some Related Posts:
Christmas in February!
In the mail -- a review copy of John Scalzi's The Last Colony, his sequel to Old Man's War and The Ghost Brigades (both of which I liked very much). Boy oh boy oh boy. Expressive Conduct:
I often hear people say that the First Amendment doesn't protect flagburning, because it's conduct rather than speech. My view is that burning a flag, like waving a flag, is a conventionally understood form of communication, and both should thus be treated as "speech" no less than, say, handwritten materials (which are literally neither "speech" nor "press"), elephant or donkey pins worn around campaign season, paintings that have no words, and the like. Of course such conduct may often be restricted because it causes certain harms through its noncommunicative component -- an ordinance prohibiting fires in a brush zone could be used against flagburning. But this just reflects the analogy to literal "speech"; an ordinance prohibiting loud noises at night in a residential area could be used against the use of loudspeakers at 11 p.m. (even when the loudspeakers are used in the process of literal "speech"). When, however, either the loudspeaker use or the flag waving or the flag burning is banned because of its communicative effects, for instance because they convey offensive messages or supposedly diminish the emotional force of certain symbols, that is a speech restriction that should be evaluated under the First Amendment. But for those who disagree, let me ask: SFSU is investigating (with the threat of administrative punishment) the College Republicans for, among other things, supposedly being "incivil" and creating a "hostile environment" by stepping on butcher-paper representations of Hamas and Hezbollah flags (which also contained the name of Allah in Arabic script). If you think that there's no First Amendment problem with banning flagburning, on the theory that it's not speech, I take it that you think there's no First Amendment problems with punishing (even criminalizing) the Republicans' actions, right? Likewise, if SFSU tried to punish a student for waving a Confederate flag (assume no special circumstances such as the flag's being stolen, or the waving been intended and understood as a personal insult and invitation to fight addressed to one particular person), I take it you'd say "Sure, no First Amendment problem," right? Or is there a distinction here I'm missing? All Related Posts (on one page) | Some Related Posts:
State University Considering Discipline of Students for Walking on the Word "Allah":
The calls for suppression of speech that offends religion (see here and here) don't seem to be limited to purely academic arguments. Here's an e-mail from the San Francisco State University to the College Republicans: I am writing to you as President of the College Republicans to follow-up with you regarding the letter of complaint that was received by the Office of Student Programs and Leadership Development on Thursday, October 26, 2006, notifying the office of alleged violations of University policy. The complaint is in regards to alleged actions at a College Republican sponsored event, "Anti Terrorism Rally," that occurred in Malcolm X Plaza from 12-2 PM on October 17, 2006. The complaint describes alleged actions of walking on a banner with the word "Allah" written in Arabic script. I am writing to inform you that the Office of Student Programs and Leadership Development has concluded its investigation into the events that occurred on October, 17, 2006 in Malcolm X Plaza. The investigation was put in place to review the following alleged violations of University Policy as were addressed in the written complaint: FIRE (The Foundation for Individual Rights in Education) has more: The College Republicans “offense” took place on October 17, 2006, when they held an anti-terrorism protest in SFSU’s Malcolm X Plaza. During the protest, several members of the group stepped on butcher paper they had painted to resemble the flags of Hamas and Hezbollah. Unbeknownst to the protestors, the flags they had copied contain the word “Allah” written in Arabic script.As FIRE points out, burning the American flag, and stepping on it, "is without question a constitutionally protected act of political protest"; stepping on flags of Hamas and Hezbollah, even when they contain religious symbols on them — or for that matter deliberately stepping on religious symbols — is equally protected. Note also that the university is not simply trying to prevent violence here (which it in any event should do by preventing and punishing the violent responses to offensive student speech, not by punishing the speech itself, at least unless it fits within the narrow category of individually addressed insulting "fighting words," which doesn't apply here). The university is expressly investigating (with the threat of formal sanctions behind the investigation) the possibility that the students' speech is ideologically offensive — creates a "hostile environment" and is "incivil[]." A clear First Amendment violation, it seems to me. UPDATE: Here's a story about the rally in the campus newspaper. All Related Posts (on one page) | Some Related Posts:
Tenure Denial at MIT Leads to Hunger Strike:
Associate Professor James Sherley is the only African-American faculty member ever appointed in the Biological Engineering Department at the Massachusetts Institute of Technology. Much of his research focuses on adult stem cells. Last year he received a $2.5 million Pioneer Award from the National Institutes of Health for his work on the production of adult stem cells. More controversially, he opposes research on embryonic stem cells insofar as this requires the destruction of human emryos. In 2005, MIT denied Sherley's application for tenure. Sherley appealed the result without success, and is now embarking on a hunger strike to protest the decision. His primary claim is not that the decision was political, but that it was racially biased and tainted by a conflict of interest among those involved in the tenure process. A conservative activist group has rallied to Sherley's defense. At the same time, a number of MIT professors from other departments, including the anything-but-conservative Noam Chomsky, have signed a letters detailing alleged irregularities and other problems with the review of Sherley's tenure application. If the allegations are true, some of the irregularities and conflicts of interest are quite troubling. The allegations also suggest that MIT's efforts to recruit African-American faculty have been unserious and tokenistic. I should stress, however, that I do not know whether the allegations are true and whether there is more to the story. Those involved in the tenure review issued this statement claiming Sherley was treated fairly and denying race played any role in the decision. From the news accoutns I've seen, it seems that MIT is standing firm. Chilling Climate Dissent:
Roger Pielke Jr. suggests comparing allegations against the Bush Administration made by James Hansen and other cliamte scientists who work in the Bush Administration with moves by state governors to oust state climatologists for expressing heterodox views on climate change. UPDATE: The above link discusses the controversy in Orgeon. For information on the brewing controversy in Delaware, see here and here. Related Posts (on one page): Many 1967-72 Spitting Incidents Are Documented in the Press.
Hundreds of Vietnam-era veterans have publicly claimed in recent decades that they were spat on by citizens or anti-war protesters because of their military status, either before they went to Vietnam, when they were on leave, or after their returned from overseas. Yet several journalists and at least one scholar, sociologist Jerry Lembcke of Holy Cross, think that such things never happened, that they are an “urban legend.” Lembcke claims: “Stories of spat-upon Vietnam veterans are bogus.” In a 1998 NYU Press book, The Spitting Image; a 1999 scholarly conference paper of the same name; and two op-eds, Lembcke spins an elaborate tale to support his view. In this post I’ll take up just a few of Lembcke’s arguments (I’ll have much more on spitting over the next week): I have been looking into these and other claims by Lembcke and they appear to hold about as much water as do his notions about a primal (wet) unconscious. It is surprising that, without his having done an exhaustive review of published sources in the late 1960s and early 1970s, Lembcke would manufacture such a speculative argument, essentially treating hundreds of eyewitnesses as victims of “false memory” (at best). +++++++ EVIDENCE: Contrary to Lembcke’s claims, I quite easily found many accounts published in the 1967-1972 period claiming spitting on servicemen. UPDATE: I just saw that Jerry Lembcke was kind enough to respond here. Next week I should have time to answer (if an answer is needed), though on a quick read, there appears to be nothing earth-shattering in his response.Related Posts (on one page):
Wednesday, February 7, 2007Is Resistance to International Law Futile?
Over at Opinio Juris, prominent international law scholar Peter Spiro criticizes Eugene Volokh's and (by implication) my claim that U.S. should try to block the overriding of domestic law by international law norms. He argues that such resistance is futile, and that we should instead work to improve the substantive content of international law norms themselves:
I think that Spiro's conclusion is, at the very least, overdrawn. At most, he shows that we cannot stop all overriding of domestic law by international law. That doesn't mean that we can't stop at least some of it, perhaps even succeed in the vast majority of cases. Over the last several decades, the US has successfully resisted the domestic imposition of numerous international law norms, including "hate speech" laws, the 1977 Protocols to the Geneva Convention [which I originally mislabeled as the "Third Protocol"], the New World Information Order (mentioned in my last post), the Law of the Sea Treaty (which was eventually revamped as a result of US objections and the Reagan Administration's refusal to sign and follow the original version) and others. Furthermore, Spiro's examples conflate two very different modes of incorporation of international law into domestic law: what John McGinnis and I call "raw international law" and the domestic incorporation of international law through ordinary domestic legislative processes. Raw international law consists of international law norms (e.g. - customary international law) that we have not ratified through congressional or state legislation or through the treaty ratification process. It is this kind of international law that McGinnis and I argue is likely to be systematically inferior to domestic law. By contrast, international law that has passed through the domestic lawmaking process is likely to be no worse, on average, than other domestic legislation. It is only the domestic incorporation of raw international law that should be categorically rejected. There is as yet no reason to believe that we can't resist successfully, and indeed we have done so on numerous past occasions. Finally, I agree with Spiro that we should use our leverage to improve the substance of international law norms. Indeed, in my last post I suggested one possible strategy for doing so: denying funding to the UN Human Rights Council and other international organizations that promote international law norms that violate civil liberties. However, the two strategies are not mutually exclusive. The United States should work to improve the content of international law, while simultaneously doing all we can to prevent the overriding of domestic law by harmful international law norms that may be enacted by others over our opposition. The two strategies may even be mutually reinforcing: international organizations and foreign powers may be less likely to try to create harmful new international law norms if they know that the US will refuse to follow them. Our chances of succeeding in both endeavors will, of course, increase if other liberal democracies adopt similar policies. UPDATE: Peter Spiro briefly replies to this post here. He writes:
Just to clarify, John McGinnis and I have no process objection to state legislatures incorporating international law norms into statutes, except in cases where doing so violates the US Constitution; such legislation is, on average, likely to be no worse than other state legislation. Our critique is directed at the claim that raw international law should override domestic law even in cases where no domestic legislation has been passed incorporating it and (as Professor Spiro has argued) even where the international law in question violates the US Constitution. Also, I do not agree that "formal incorporation" is just a "mopping-up exercise or . . . an afterthought." Passing legislation is costly and difficult and requires the support of key political actors and (often) of the general public. Ratifying a treaty or passing a constitutional amendment requires even broader support. Raw international law, by contrast, is often created with the support of only a coalition of relatively unaccountable international elites and authoritarian rulers of foreign states. All Related Posts (on one page) | Some Related Posts:
[David Bernstein,
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