Fourth Amendment Doesn't Protect Spit on the Sidewalk:
Facts: Rape suspect walking on a street spits on the sidewalk. An investigator is following the suspect, and he collects the spit; a DNA test proves a match. Holding: No Fourth Amendment violation. Analysis:
[A]lthough the defendant had a reasonable expectation of privacy in his saliva (and other bodily fluids), see Matter of Lavigne, 418 Mass. 831, 835-836, 641 N.E.2d 1328 (1994); Jansen, petitioner, 444 Mass. 112, 120-121, 826 N.E.2d 186 (2005), when he expectorated on to a public street and did not retrieve the fluid, he voluntarily abandoned that protection; he assumed the risk of the public witnessing his action and thereafter taking possession of his bodily fluids. See Commonwealth v. Ewing, 67 Mass.App.Ct. 531, 540, 854 N.E.2d 993 (no expectation of privacy in cigarette butts abandoned as trash in interview room), further appellate review granted, 447 Mass. 1113, 857 N.E.2d 1094 (2006). See also Commonwealth v. Pratt, 407 Mass. 647, 660-661, 555 N.E.2d 559 (1990) (observations and inspections occurring after items deposited in public places generally fail to intrude upon reasonable expectation of privacy); Commonwealth v. Nutile, 31 Mass.App.Ct. 614, 619, 582 N.E.2d 547 (1991) (no reasonable expectation of privacy in drugs voluntarily thrown from vehicle); Commonwealth v. Wedderburn, 36 Mass.App.Ct. 558, 564, 633 N.E.2d 1058 (1994) (no reasonable expectation of privacy in drugs dropped on ground during police surveillance).
Here, the motion judge found that the location where the defendant spat was a public street, a place freely accessible to others. See Krisco Corp., 421 Mass. at 42-44, 653 N.E.2d 579. See also Commonwealth v. Pratt, supra (no reasonable expectation of privacy in trash left on curb); Commonwealth v. Bloom, 18 Mass.App.Ct. 951, 952, 468 N.E.2d 667 (1984) (defendant had no reasonable expectation of privacy in open area of public restroom). Moreover, there is no indication that the defendant took affirmative action to recover the saliva once it had left his mouth. In Bly, supra at 490-491, 862 N.E.2d 341, the defendant did not attempt to retrieve the cigarette butts when leaving the interview room, nor did he request to go back and collect them. The court held that Bly's “wholesale failure to manifest any expectation of privacy in the items whatsoever” compelled the “conclusion that [he] had no subjective expectation of privacy.” Id. at 491, 862 N.E.2d 341. See Ewing, supra (defendant made no attempt to take cigarette butts when leaving interview room). Contrast Krisco Corp., supra at 45, 653 N.E.2d 579 (discussing affirmative steps taken by defendant to protect dumpster from public access). Thus, where the defendant here voluntarily abandoned his saliva onto a public street, the investigator (whether deemed to be functioning in a private capacity or as a State actor) did not infringe on any reasonable expectation of privacy when he recovered the spittle from the street.
Commonwealth v. Cabral, 69 Mass.App.Ct. 68, 2007 WL 1413143 (Mass. App. Ct. May 16, 2007).
UPDATE: Elizabeth Joh had an interesting article on this very topic in the Northwestern University Law Review. You can download it here.
Rick Hasen investigates the strange disappearance of the American Center for Voting Rights. As Hasen recounts, ACVR appears to have been a fly-by-night election reform organization that pushed voter ID laws in order to benefit Republicans.
In addition to exposing ACVR, Hasen argues that voter identification laws are unnecessary because polling-place voter fraud is rare and unlikely to affect many, if any, election results. While documented cases of polling place fraud are few and far between, Hasen acknowledges that documented cases of absentee-ballot voter fraud are more common. Yet some voter ID proposals would exempt those who cast absentee ballots. Another possibility, of course, would be to require IDs for both polling place and absentee voting.
No doubt some form their views on various election law questions, such as whether to require IDs to vote, whether to deny felons the franchise, or whether to facilitate early voting, based upon their expected practical consequences. Political partisans seek election laws that will benefit their party (as it appears ACVR did).
One can also approach these questions from the standpoint of what is, or should be, required of citizens, and what (if anything) should disqualify citizens from participating in elections. For instance, one may believe that an ID requirement is not a serious imposition on voters when IDs are required for everything from getting on a plane to renting a video. One might also believe that an ID requirement, especially if applied to absentee ballots, may help ensure future election integrity and (no less important) help maintain the appearance of election integrity. So, while some may support voter ID laws for partisan reasons, this does not (yet) convince me that voter ID laws are inherently unreasonable or unwise.
Today the U.S. Court of Appeals for the Sixth Circuit issued two unanimous opinions in habeas cases.
In Durr v. Mitchell, the Court considered and rejected death row inmate Darryl Durr's appeal of the denial of his petition for a writ of habeas corpus. An Ohio jury had sentenced Durr to death for the 1988 rape, kidnapping and murder of Angel Vincent O'Nan. Judge Suhrheinrich wrote for the panel, and Judge Cole wrote a separate concurring opinion.
In Bachman v. Bagley, another panel affirmed the district court's conclusion that Ronald Dale Bachman's habeas petition was untimely. Bachman, who was convicted in 1995 on multiple charges of rape and related crimes for the repeated sexual assault of his own daughter, had argued unsuccessfully that his designation as a "sexual predator" in 2004 should reopen the statute of limitations to challenge his original conviction.
There was not nearly so much unanimity in United States v. Arnold, in which a divided Sixth Circuit, sitting en banc, divided over Joseph Arnold's felon-in-possession of a firearm conviction. Judge Sutton wrote the opinion for the court upholding the conviction, joined by Chief Judge Boggs and Judges Batchelder, Daughtery, Rogers, Cook, and McKeague. Judges Clay and Griffin each authored opinions concurring in part and dissenting in part. Judge Moore dissented, joined by Judges Martin, Cole, and Gilman.
Did the FY 2004 National Defense Authorization Act authorize the Defense Department to temporarily curtail the collective bargaining rights of the Department's civilian employees? Yes. At least that was the conclusion reached by a divided panel of the U.S. Court of Appeals for the D.C. Circuit in American Federation of Government Employees v. Gates.
By its terms, the Act
authorizes DoD to curtail collective bargaining through November 2009. But after November 2009, with certain specified exceptions, DoD again must ensure collective bargaining consistent with the Civil Service Reform Act of 1978.
Judge Brett Kavanaugh wrote the opinion of the court. he was joined by Senior Judge Stephen Williams. Judge David Tatel dissented.
Former National Security Advisor Sandy Berger has agreed to forfeit his law license, according to this report. As I've noted before, we still do not know precisely what documents Berger burgled from the National Archives. It also appears Berger may have been eager to strike a deal over his bar license to avoid further scrutiny: "In giving up his license, Mr. Berger avoids being cross-examined by the Board on Bar Counsel, where he risked further disclosure of specific details of his theft." It also does not seem like that great a sacrifice for, as Berger commmented, he has not practiced law in 15 years. (LvIP)
Benjamin Wittes is uncompromising in his take on James Comey's testimony.
At least as Comey relates it, this affair is not one of mere bad judgment or over-aggressiveness. It is a story of profound misconduct on Gonzales's part that, at least in my judgment, borders on the impeachable. Put bluntly, faced with a Justice Department determination that the NSA's program contained prohibitive legal problems, the White House decided to go ahead with it anyway. In pursuit of this goal, Gonzales did two things that both seem unforgivable: He tried to get a seriously ill man to unlawfully exercise powers that had been conveyed to another man and to use those powers to approve a program the department deemed unlawful. Then, when Ashcroft refused, the White House went ahead and authorized the program on its own. In terms of raw power, the president has the ability to take this step. But it constitutes a profound affront to the institutional role of the Justice Department as it has developed. The Justice Department is the part of the government that defines the law for the executive branch. For the White House counsel to defy its judgment on an important legal question is to put the rawest power ahead of the law.
The much-derided John Ashcroft, on the other hand, showed himself when it counted to be a man of courage and substance whom history will surely treat more kindly than did contemporary commentary. Few attorneys general get tested as Ashcroft did that night in 2004. One can disagree with him about a lot of things and still recognize the fact that ultimately, he passed the hardest test: From a hospital bed in intensive care, he stood up for the rule of law. More broadly, the Justice Department seems to have performed admirably across the board--from the OLC having taken its job seriously, to the willingness on the part of the department brass and Mueller to lose their jobs to defend the department's ability to determine the law for the executive branch. Had the story ended with Comey's victory, it would have been an ugly crisis with a happy ending.
Meanwhile, the number of GOP Senators who have said publicly AG Gonzales should resign is up to five (Coleman, Hagel, Roberts, Specter, Coburn).
UPDATE: When I first posted this I had a momentary brain leak and wrote "Philip" Comey instead of James. It's fixed now.
MORE IMPORTANT UPDATE: The number of GOP Senators supporting a Gonzales exit is apparently up to eleven (and as Nigel Tufnel explained, eleven provides that extra push over the clip.
I noticed with great interest your Volokh post on the ethnic background of some of the Arabs in the Galilee. I have been writing on ethnicity and minority rights in the Middle East for the Wall Street Journal and the Middle East Quarterly for several years....
In response to your query : I would say that you touched on a very important, but neglected story in Middle Eastern history. In 1830, following the French colonial takeover of Algeria, the Algerian-Sufi rebel leader Abdel Qader who lost his battle with the French, made a deal with the Ottomans to move (along with his followers) to the Galilee of what was then called "Syria." There is good archival material in France showing how many of the Arabs of the Galilee are descendents of Abdel Qader's followers. Some of the Arabs with African features may be of Algerian Tuareg (southern Algerian) ancestry. There was also immigration in the early 20th-century of Chadian Muslims from Chad to Jerusalem who stopped in Jerusalem (or al-Quds as they would term it) after Hadj to Mecca. It is possible that some of these clans moved outward to the Galil.
Kmiec v. Lederman on Comey Testimony:
In today's Washington Post, Doug Kmiec has an op-ed arguing that the Comey testimony isn't that much of a big deal, and in particular, it's no Watergate; over at Balkinization, Marty Lederman has a response arguing that Kmiec is wrong to minimize the importance of the story.
In my view, Kmiec is plainly right that nothing in Comey's testimony suggests anything like another Watergate. Consider how little we know about the facts. We don't know what the program was that Comey and Ashcroft wouldn't authorize, or why they wouldn't authorize it. And as far as I can tell, there is absolutely no evidence whatsoever that the President intentionally violated a known legal duty or participated in some kind of cover-up. (Note that when Comey met with the President one-on-one, according to his testimony, the President backed him.)
At the same time, the test for whether the Comey story deserves attention surely can't be whether it's as bad as Watergate. I'm sure there's room in there for political news that doesn't quite hit Watergate break-in and Nixonian cover-up levels. And just as we don't know the facts to make the Watergate comparison stick, we also don't know the facts to suggest, as Kmiec does, that this was just some sort of routine disagreement within the Executive branch. We do know that there was something going on that led the Attorney General, Deputy Attorney General, FBI director, Head of OLC, and some of their leading staffers — which, we have reason to believe, was everyone in DOJ and the FBI who actually knew of the facts of what was happening — to be ready to resign. Kmiec doesn't know what it was, and neither do we, but it seems odd to imagine it must not have been over something very important.
Oh, and on the technical questions in Marty's post, Marty seems right to me — in particular, I think he's very likely right that the point of the AG's signature was to persuade the telecom companies to go along. I assume the lawyers for the ISPs and telcos insisted on some sort of legal process to give the government access to their networks, and the 45-day authorizations signed by the President and the AG were the process that the telcos and ISPs accepted.
Any discussion of sport and law that grasps for comprehensiveness should consider what the two fields have to teach one another. The premise of such a consideration is, of course, that the two fields are separate, a claim that appears to grow ever more dubious. Rarely if ever will a season of professional sports pass by without the appearance of criminal allegations, contractual disputes, accusations of assault, claims of self-defense, defense of teammates, &c.
Witness this week’s debate of rules versus standards in the Suns-Spurs series, in which David Stern vigorously defended the suspension of two of Phoenix’s more important players for leaving their bench during an altercation. After parsing what an altercation was (do handbags count?), considering what the bench area is (they took just a few steps), and debating what leaving entails (one player claimed he was just heading to the scorer’s table to check in), the league disqualified Stoudemire and Diaw from the subsequent game, which Phoenix duly lost.
Stern abdicated responsibility for the judgment, claiming that the rule is clear. Of course, as Bill Simmons has pointed out, this position ignores the league’s responsibility for the rule in the first place. And while rules are always easier to administer than standards, one feels compelled to ask Mr. Stern whether the league and its employees receive generous compensation precisely because they are expected to make the difficult decisions. Perhaps there’s a lesson here that soccer may not prosper from more rules and should instead leave a decent amount of discretion in the hands of its officials.
If the path of the law has anything to teach sports, it might be to turn around. Sports appear to be following legal fields such as corporate law and securities regulation along an unswerving route towards ever-greater regulation. Sarbanes-Oxley and new investment company rules have recently added significant layers of regulation to the management of public corporations and mutual funds. Similarly, American sports have just added new rules on such critical issues as what players can wear off the court. Things certainly appear to have gone too far when the FIFA’s rules manual now includes this helpful interpretive guide:
Perhaps we need to institute a pay-as-you-go requirement, which would permit new rules in sports only when a corresponding number of existing ones have been retired.
I wonder, though, whether this is another area of cultural divergence. In sports such as soccer and rugby, in which the game is intended to be free-flowing with relatively few mandated stoppages, the addition of rules is antithetical to the style of the sport. In baseball and football, however, aficionados often take great delight in knowing the most arcane rules of interpretation. Since those games stop every few seconds anyway, their overall aesthetic is not significantly altered by adding new rules — the mastery of which only serves to enhance the sense of expertise its fans feel.
Perhaps, perhaps not. It just reminds me of a uniquely American trait to scientificalize things where possible. E.g., in the British Isles, someone who has a headache will typically ask for a “tablet”; in the United States, patients will consider the merits of acetaminophen, ibuprofen, naproxen, &c.
What, then, lies ahead for the study of sports and the law? One of the biggest questions that arises whenever a new proposal emerges is “what will this do?” So perhaps the future of academic inquiry in this area will involve the increasing use of econometric and statistical analyses, such as the much-discussedstudy of NBA referees’ own-race biases by Justin Wolfers.
For my own part, I’d enjoy looking into the handball rule. Players everywhere seem to believe that the offense has two, independent elements: a subjective scienter requirement plus an objective notion of benefit. Whenever the ball actually hits players’ hands, then, they invariably claim either that they did not intend to do it, or that they did not actually get any advantage from it, depending on which account the facts seem most likely to support. Just like the good lawyers and politicians they are, handballers strive mightily to massage away the bad facts.
The "Hate Crimes" bill currently moving through Congress involves an unwise, and arguably unconstitutional expansion of federal criminal jurisdiction. But even at the state or local level, hate crimes are a bad idea. The whole debate of whether homosexuals should be included in hate crimes statutes is but one example of how hate crimes statutes undermine the principle of equal protection of the laws, by encouraging fights over whether some groups are or are not deserving of unequal, special protection.
The best argument for hate crimes laws is that a hate crime causes more harm than an ordinary crime, because it causes many other people to fear being victimized. This is true for some hate crimes (e.g., public vandalism of a synagogue), but certainly not all of them (e.g., a dispute between neighbors in which an epithet is used). Moreover, there are plenty of ordinary crimes (such as highly-publicized serial attacks on random victims), which also cause fear in many people besides the immediate victims. I suggest that judicial sentencing discretion allows for appropriate punishment for crimes which have unusually large secondary impacts.
As long as hate crimes statutes stay on the books, every hate crime statute should include a provision providing for extra punishment for hate crime hoaxes. (Above the level of punishment for ordinary hoaxes about non-existent crimes.) Just as a hate crime may cause heightened community fear, so does a hate crime hoax.
All the above points are elaborated in an Issue Paper I wrote for the Independence Institute.
Contingent Fee arrangements for government lawyers:
Yesterday President Bush issued an Executive Order banning contingent fee arrangements for private attorneys who are hired to represent the government. The order is long overdue. Given that Senator Clinton's brother was the beneficiary of a manifestly corrupt government contingent fee, there is a risk that President Bush's Order might be overturned by a future President. Given the avowed determination of both parties in Congress to clean up government corruption, a bill to outlaw public contingent fees ought to attract wide bipartisan support.
In an Issue Backgrounder for the Independence Institute, I suggested that states should also consider enacting similar bans. At the very least, states should impose some sort of hourly-rate caps on contingent fees, to prevent politically-connected attorneys from receiving enormous windfalls for performing a trivial amount of legal work.
Defendant Acquitted in Child Pornography Case:
In federal district court in Minnesota, a defendant was acquitted by a jury earlier this week in a case involving child pornography charges. As often happens in such cases, the forensics was everything -- and it looks like the jury had very legitimate doubt that the defendant ever knew of (and thus ever possessed) the images. There's also a U.S. Attorney-purge angle to the story, for those that are interested. Details in the link. Hat tip: Victor Steinbok.
I would like to join David Bernstein in commending Bryan Caplan's new book, The Myth of the Rational Voter. It is the most important work on political ignorance in at least a decade, and possibly longer.
Previous scholars, including myself (e.g. here and here), have explored the deleterious consequences of the average citizen's massive ignorance about politics and public policy. Since the 1950s, economists and political scientists have known that it is actually rational for voters to be ignorant, because the chance that any one voter will have a significant impact on the outcome of an election is infinitesmally small. There is little incentive to spend time and effort acquiring knowledge about politics that won't make any difference to political outcomes anyway.
Bryan, however, goes beyond the standard rational ignorance analysis. He emphasizes that it is rational for voters to not only learn very little about politics, but to do a poor job of evaluating the information they do have. Good analysis of political information - like learning the information in the first place - requires considerable time and effort that rationally ignorant voters have little incentive to undertake. Instead, voters are likely to fall prey to systematic errors in considering political information. As Bryan shows in detail, this helps explain why the majority of voters routinely fall prey to gross fallacies in their analysis of public policy - such as the belief that protectionism helps the overall economy; that the rise of modern technology is a major cause of longterm unemployment; and that foreigners are beggaring the American economy (all of these are actual examples from the book).
Because there is so little incentive to acquire and analyze political information to become a "better" voter, most of those citizens who do invest in political knowledge are likely to do so for other reasons. These include reinforcing their preexisting biases and prejudices, using politics as "entertainment" (much in the same way that sports fans acquire knowledge about their favorite teams for similar reasons), and signaling membership in a social group. As Bryan's work suggests (and I discuss in some detail in this article), such motives for acquiring information are extremely conducive to biased and irrational evaluation of the knowledge gained. Bryan calls this kind of systematically biased thinking "rational irrationality." The title of the book is actually slightly misleading. Bryan is not arguing that voters are stupid or irrational. Rather, he contends that it is actually rational for the individual voter to engage in biased and severely flawed evaluation of public policy. Unfortunately, behavior that is rational for individuals can lead to very harmful collective outcomes.
I do have a few disagreements with Bryan's analysis. In particular, I am skeptical of his argument that transferring more political power to knowledgeable experts is a good solution to the ignorance of the average voter. Ironically, the libertarian Caplan here makes the same kind of argument for increasing the power of experts as liberal Supreme Court Justice Stephen Breyer in his 1993 book Breaking the Vicious Circle. Anticipating Caplan, Breyer argued that the ignorance and bias of voters justifies transferring power over regulatory policy to "nonpolitical" expert bureaucrats. I have serious doubts about both Bryan's and Breyer's paeans to expertise.
Be that as it may, Bryan's book is a must-read for anyone even remotely interested in democratic theory and political participation.
CONFLICT OF INTEREST WATCH: Bryan and I are collaborating on a related project.
UPDATE: To avoid misunderstanding, I should note that Bryan also argues that voter ignorance and irrationality justify limiting the size and scope of government in order to leave more decisions in the hands of the free market and civil society (where incentives for rational information acquisition and evaluation are generally better). I have made the same argument in my own works linked in the post. However, this argument is in some tension with Bryan's simultaneous claim that the deficiencies of voters should be addressed by transferring more power to experts.
Brief Bleg:
Sorry to bug readers with this, but I'm trying to hunt down copies of the briefs filed in the D.C. Circuit's Guantanamo Bay cases argued on Tuesday, Bismullah v. Gates, 06-1197, and Parhat, et al. v. Gates, 06-1397. (Unfortunately, the briefs aren't on PACER. Details on the cases here.) If you have an electronic copy or have links to posted copies, I'd really appreciate it if you would post the link or e-mail a copy to orinkerr [at] yahoo.com. Many thanks.
Blog Rolls:
How much attention do blog readers give to blog rolls these days? It used to be that blog rolls (the list of linked blogs down the side of the page) were really important. I have the vague impression that they no longer matter as much as they used to. Do you agree? If there has been a change, why has it happened?
Re-Entering the Legal Profession?:
Over at The Conglomerate, Christine Hurt has an interesting post -- with a good question -- about re-entering the legal profession after years away.
"There Will Be No Further Industrial Revolution in the Cycles of Our Western Civilization":
Sasha recommended to me Jean Gimpel's The Medieval Machine, which is indeed a fascinating history of the Medieval Industrial Revolution. Gimpel's claim is that the Middle Ages, especially from the 11th to the 13th centuries were — despite their reputation — a time of great innovation in a wide range of fields: the harnessing of water and wind power, increased efficiency in agriculture and in use of draft animals (especially horses), the invention of clocks, eyeglasses, and other important tools, and more. Very interesting stuff, and seems quite persuasive.
But Gimpel also draws analogies between his time (the book was first published in 1976, but then revised in 1988) and the Middle Ages — and, boy, are they pessimistic. Some of his specific criticisms of then-modern cultural attitudes toward technology and innovation seem generally apt, but consider the bottom lines, from the January 1988 Preface (one paragraph break added):
We are witnessing a sharp arrest in technological impetus, save in the military field: it was in the declining Middle Ages that the cannon was developed. Innovations — that is, inventions that have been financed, tested and made commercially available — are few and far between, a fact particularly remarkable in the pharmaceutical industry. Even computers have not spread into every home in the country, as was forecast. Like every previous civilization, we have reached a plateau.
The main purpose of this study is to examine closely, and with new perspectives, the industrial life and institutions of the Middle Ages, and the genius of their inventinveness. Comparisons with our own society will be apparent throughout, and a detailed study of parallels between the two great inventive eras, medieval and modern, will be found in the epilogue....
[But] I must point out one alarming contrast. The economic depression that struck Europe in the fourteenth century was followed ultimately by economic and technological recovery.
But the depression we have moved into will have no end. We can anticipate centuries of decline and exhaustion. There will be no further industrial revolution in the cycles of our Western civilization.
Hmm. I surely can't promise unlimited future technological growth; one has to be hesitant in making predictions like that. But Gimpel seems to have no such hesitation — "the depression we have moved into will have no end." "There will be no further industrial revolution in the cycles of our Western civilization."
Looking even at the modest span of time from 1976 and 1988 to the present, that sort of confidence in technological stagnation seems pretty hard to swallow. Perhaps the English (and in some measure American) economic doldrums of the 1970s left a sour taste in Gimpel's mouth; yet it seems a mistake to judge the technological future of an entire civilization based on sad interludes such as those.
Close and narrowing vote on gay marriage coming in Massachusetts:
As of today, gay couples have been marrying in Massachusetts for three years. In each state legislative session since then, there's been an effort to ban gay marriage by constitutional amendment. Initially there was strong legislative opposition to gay marriages, with perhaps 3/5 of the state's 200 house and senate members supporting some form of ban (some wanted to ban gay marriage and civil unions, others just gay marriage).
But opposition to gay marriage has dwindled every year as anti-gay marriage legislators have been defeated in elections and as others have become convinced that recognizing gay unions hasn't hurt anyone. For example, the Republican senate minority leader and co-sponsor of a state constitutional ban changed his mind and opposed the amendment he had previously sponsored. “Gay marriage has begun and life has not changed for the citizens of the commonwealth,” he told the New York Times in 2005, “with the exception of those who can now marry who could not before.”
Nevertheless, the effort to prevent gay couples from marrying continues. The latest strategy, which started with voter petitions, requires just one fourth (50) of the state's legislators to agree to send the amendment to the voters for approval. The legislators have to do so in two consecutive sessions. Last session 57 legislators voted for the ban, eight more than needed. Sometime this session, perhaps as early as mid-June, there will be a second vote. If it succeeds, the amendment would go on the November 2008 ballot in Massachusetts.
Gay-marriage supporters and national Democratic leaders, concerned about the implications of energizing social conservatives during a presidential election, are pushing hard to get eight more state legislators to switch their votes. That would prevent what would be a mammoth ballot fight in the state, drawing a lot of money and energy from around the country. According to the Boston Globe, they may have gotten support down to 52 in favor of the ban, just three short of what they need to stop it. That alone is an astonishing drop in legislative support from the more than 100 who supported some kind of constitutional ban just three years ago. This will be very interesting to watch.
I just returned from a week in Israel, and have the following observations and notes:
(1) Israel is thriving. Security at restaurants, shopping malls, et al., has been tremendously relaxed since I first starting traveling there regularly in 2003, new building projects are going up everywhere in the Tel Aviv area (where Israel's population is concentrated), unemployment is down, and vacant storefronts, common in 2003, are rare.
(2) The "Russians" (the million-plus immigrants from the former Soviet Union) seem to be integrating well. I saw many fewer Russian signs, and heard much less Russian spoken in the streets, than in 2003.
(3) I went to Tiberias on a day trip, and saw a large group of local Muslim Arab women, assumedly from a local Galilee village, walking around a hotel spa. About 1/3 of these women had features that were clearly African in origin. One can't raise the issue of the origins of the region's Arabs without raising political hackles, but completely aside from politics, I was fascinated by the question of how individuals of Black African descent wound up living in an Arab village in the Galilee, if indeed they were.
(4) A large percentage of middle-age Israeli women, especially of Mizrahi (Middle Eastern) origin, dye their hair an appalling and unnatural shade of red. I first encountered this hair-abuse on a trip to Greece in 2002, where many Athenian women used the same hair coloring, and really still can't understand why anyone finds it attractive.
(5) Perhaps my favorite diet soft drink is an Israeli beverage called Tapuzina, which, though I believe it is also Hebrew for a type of tree, literally means "Orangina." Like Orangina, Tapuzina is an orange (it also comes in grapefruit and grape flavors, the diet grapefruit is excellent) drink with pulp. You can find it in kosher supermarkets in the U.S. All of which, being a law professor, makes me wonder whether Orangina has some sort of intellectual property claim against Tapuzina.
(6) We bought my daughter a bunch of Hebrew kids' DVDs. Apparently, new DVD players can play both international formats, and we don't have any trouble playing the non-NTSC dvds at home. Anyway, there is something a bit surreal about seeing Count von Count of Sesame Street singing in Hebrew, not to mention seeing Po and the rest of the Teletubbies demanding "Chibuki" ("Big Hug").
If Hamas turns out to be unwilling to turn itself into a non-terrorist movement that Israel can reasonably deal with, Israel will have no choice but to absolutely destroy the Palestinian government. If that's what happens, the international community may need to rethink the whole idea of a sovereign Palestinian state. Professor Inbar of Bar Ilan University has suggested that Gaza should be confederated with Egypt, and the West Bank with Jordan, with these governments, which have peace treaties with Israel, having security responsibility. In my opinion, such a plan would make Palestinian independence/autonomy much more viable from both a political and economic perspective. It would obviously take significant change international attitudes to move toward that solution, but an unrepentant Hamas terrorist government in the Palestinian areas might just move opinion in that direction.
As it turns out, the Palestinian government is succeeding at destroying itself without much help from Israel, and the idea of confederating the Palestinian areas with Jordan and Egypt is gaining traction. Kudos to Prof. Inbar for being well ahead of the curve.
Princeton University Press has just published GMU economist (and my friend) Bryan Caplan's book, The Myth of the Rational Voter: Why Democracies Choose Bad Policies. I haven't see the book yet, but I've read several of Bryan's articles on the subject, which are absolutely fascinating. I'm ordering my copy today.
UPDATE: Tyler Cowen writes that its "one of the two or three best books on public choice in the last twenty years." And economist Greg Mankiw of Harvard writes that it's "the best book I've read lately."
Most Self-Indulgent Legal Opinion?:
There seems to be a trend towards judges needing to prove oh-how-funny and oh-how-witty they are by writing legal opinions that just scream, "look at me! look at me!"
The latest example is a separate opinion yesterday in a Florida state appellate court decision, Funny Cide Ventures v. Miami Herald. The opinion, by Judge Farmer, is a meandering waste of 8-pages of West Reporter. Its primary goal seems to be to impress readers with just how clever and entertaining Judge Farmer can be.
Fortunately, the other two judges on the panel, Judges Stone and May, had the restraint and common sense not to sign on to Judge Farmer's wannabe Green Bag submission. As best I can tell, they forced Judge Farmer to write a two-page traditional opinion rejecting the lawsuit (which was completely frivolous). Farmer then labeled that opinion "per curiam," and added on his submission as a separate opinion along with an explanation of what happened.
To be clear, I really enjoy clever and well-written legal opinions. Once in a while, a joke in a legal decision can be really well-done and harmless (and can even advance an argument). And yes, I'm sure a lot of people find this sort of thing entertaining. But legal decisions are government documents; they are statements from the judiciary as to the rules that govern our affairs. Maybe I'm just old-fashioned, but I would rather judges err on the side of writing clear, short, and direct opinions rather than trying to impress us with how funny they can be.
Most English words, even those adapted from Latin, form derivatives or related words through pretty standard English rules. Test (noun) corresponds to test (verb); screen (noun) corresponds to screen (verb); president (noun) corresponds to presidential (adjective); determine (verb) corresponds to determination (noun).
But rule (noun) corresponds to regulate (verb). (Regulation also corresponds to regulate, but rule [noun] doesn't generally correspond to rule [verb].)
Crown (verb) corresponds to coronation (noun). (Though "crowning" [noun] is attested in the OED, it's extremely unusual; "coronation" is what is normally used.)
Dean (noun) corresponds to decanal (adjective), not to "deanic" or "deanal."
English (adjective) corresponds to Anglicize (verb), not to "Englishify."
See (verb) corresponds to visible (adjective), not to "seeable"; likewise for hear and feel. [UPDATE: As several commenters pointed out, this violates my rule 2 below; I added that rule -- to limit the range of possible answers -- after composing this set of examples, but forgot to come back to delete them. Whoops.]
What other correspondences like this can you find? The criteria are that (1) an Anglicized word must correspond to a Latinate form — (2) a form that shares the same Latin root as the Anglicized original (so "cat" / "feline" won't count) — and (3) must not correspond to a common alternative form created using relatively standard rules of English word adaptation.
If we believe that soccer could stand some improvement with a few changes here and there to the laws of the game, how would we go about testing new proposals? The ingenious system of federalism in the United States allows us, within certain limits, to wander into any willing laboratory to experiment with new regulations without heaving the whole system into chaos. The big challenge with sports, of course, is that unlike, say, parking meter policy, the playing and viewing public has a greater desire for uniformity. If we are to have a grand finale to determine the world champion at anything, presumably the world needs to play by the same rules.
On the other hand, different systems of baseball in the National and American Leagues haven’t ruled out the World Series. Basketball and hockey also live with different sets of rules for international play and the North American leagues. So, it seems, a certain degree of variation in the rules can be tolerated.
Would it be a good idea to encourage various leagues to test-drive new rules and, if so, could we do it? FIFA comprises several regional football federations (UEFA, CONCACAF, CONMEBOL, &c.), which in turn comprise all the national football associations, so we certainly have plenty of potential laboratories. But would it be a good idea?
Professor Michael Madison of the University of Pittsburgh School of Law points out that heterogeneity has its costs, citing the old North American Soccer League (1968-1984), which experimented unsuccessfully with several ways of increasing the number of goals in the game. Evidently, the American players brought up in such a system suffered at the international level for their lack of experience with the “real” rules. I agree that a country like America, which did not have a sterling football pedigree at the time, might not be the best place to create a soccer secessionist movement.
But perhaps Professor Madison’s example suggests that footballing federalism should move down a level, to the lower leagues within countries. If a nation as a whole does not want to be handicapped in international competition, perhaps the experimentation should occur in places like England’s League One and Two (which were the Third and Fourth Divisions before the authorities began subscribing to the accreditation inflation that afflicts resumes everywhere and the cup sizes at Starbucks). Or perhaps certain secondary tournaments (Olympics, Under-21 World Cup, &c.) could experiment with the new rules, which would subject each competing nation to the same level of inexperience and confine the scope of the experiment.
So if we have the desire and locales, could we do it? One additional limitation that soccer faces more than the North American sports is its comparative lack of statistics. Free-flowing games are inherently more difficult to measure and quantify. The joy, such as it is, of baseball, football, and (increasingly) basketball games being divided into individual plays of just a few seconds in length is that statisticians and advertisers can deploy their full talents. Soccer simply doesn’t lend itself to the kind of dissection that would allow observers to measure the full effects of any experiment with the rules. Perhaps with the technological increases that some teams are beginning to use to track the specific movements of the ball and their players, the sport will develop a large statistical library in the future.
Comparisons between sports and other subjects can go only so far, of course, but it is interesting to consider how creeping centralization (antifederalism?) in corporate law is viewed in many quarters as an impoverishing, not an improving, development. With each passing corporate infelicity (Enron, et al., mutual funds, option backdating, &c.), new laws and rules regularly come down from our federal legislators and regulators. And one effect -- at least with respect to mutual funds -- is that the players (mutual fund advisers) appear to be playing more and more to the referee (the SEC) than to the audience (retail investors) by churning out ever more complex and lengthy prospectuses that no individual investor could reasonably read and comprehend.
Now, to conclude with today’s visual entertainment, I include below a friendly rebuttal to Professor Madison on the quality of the NASL via one of the best goals scored anywhere (and I’m not just saying that because George Best is an Irishman):
A realtor has a few lines to "sell" a house in North Arlington, listed for $759,000, and chooses to include the following information: "New, new, new! Enjoy exposed brick in the stairwell, and recessed lighting, 5"- 8" wide hw floors, and crown and chair molding on the main floor. Relax in the 12x25 family room/home theatre [sic] w/a 42" panasonic plasma, sony receiver, and in-ceiling speakers that all convey. Custom paint is everywhere in this three-level home. All four baths have new american standard toilets. More!"
Really? Even more than four new toilets!!?? And yet only $759,000!!?? I'll call my realtor right away to ask for a showing.
Love and Affection Shared Between DOJ and the White House, Spring 2004 Edition:The Comey testimony from yesterday has so many juicy little tidbits that it's a little hard to chose among them. But here are just two more little details I missed the first time that speak volumes about the level of trust between DOJ and the White House in the Spring of 2004.
First, there's the part about FBI Director Bob Mueller ordering the security detail at the hospital not to allow Comey to be removed from the hospital room. From Comey's testimony:
I went out in the hallway, [and] spoke to Director Mueller by phone. He was on his way. I handed the phone to the head of the security detail and Director Mueller instructed the FBI agents present not to allow me to be removed from the room under any circumstances. And I went back in the room
Can you imagine that? The Director of the FBI ordered FBI agents to make sure that the President's Counsel and Chief of Staff didn't kick out the Acting Attorney General in an effort to isolate Ashcroft and get his approval. (Thanks to Glenn Greenwald for spotting this.)
Another show of trust and love between DOJ and the White House comes two pages later in the transcript, when White House Chief of Staff Andrew Card demands that Comey come to the White House. Comey explains:
And Mr. Card was very upset and demanded that I come to the White House immediately. I responded that, after the conduct I had just witnessed, I would not meet with him without a witness present.
Think about that — the Acting AG was so suspicious of the WH Chief of Staff that he wouldn't come to the White House to talk to him without a witness present. Wow.
What Led DOJ to Oppose the NSA Surveillance Program?:
So what were the events that led the top officials at DOJ and the FBI to threaten to resign in 2004 over the NSA surveillance program? Like Marty Lederman, I imagine the key difference was the shift from the legal theories that the John Yoo/Jay Bybee OLC embraced as compared to what Jack Goldmsith's OLC adopted.
Specifically, I imagine it went something like this. (Warning: Lots and lots of speculation ahead.) As Marty notes, it seems likely that John Yoo had written the initial 2001 memo under OLC head Jay Bybee approving the NSA surveillance program entirely on Article II grounds. Presumably it said that the President as Commander-in-Chief can authorize whatever monitoring the President wants to authorize to protect the county. When Goldsmith took over at OLC, however, he probably repudiated Yoo's Article II theory and instead tried to justify the program under the post 9/11 Authorization to Use Military Force (AUMF). That introduced a tailoring requirement -- specifically, a need for the monitoring to be directed "against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks" of 9/11. (There might be a similar tailoring requirement under the Fourth Amendment depending on how you read the cases and how the technology works.)
What difference would that make? Well, we're guessing, of course, but it may be that the restrictions on the program that the Bush Administration has emphasized -- monitoring only with cause, when one person is believed to be outside the U.S., etc. -- were the requirements that Comey and Goldsmith were insisting on at the hospital that night when Gonzales and Card came by. Remember the "important safeguards" that Gonzales emphasized in his February 2006 Senate testimony:
While the president approved this program to respond to the new threats against us, he also imposed several important safeguards to protect the privacy and the civil liberties of all Americans.
First, only international communications are authorized for interception under this program. That is communications between a foreign country and this country.
Second, the program is triggered only when a career professional at the NSA has reasonable grounds to believe that one of the parties to a communication is a member or agent of Al Qaida or an affiliated terrorist organization. As the president has said, if you're talking with Al Qaida, we want to know what you're saying.
Third, to protect the privacy of Americans still further, the NSA employs safeguards to minimize the unnecessary collection and dissemination of information about U.S. persons.
Fourth, this program is administered by career professionals at NSA, expert intelligence analysts and their senior supervisors with access to the best available information. They make the decisions to initiate surveillance. The operation of the program is reviewed by NSA lawyers, and rigorous oversight is provided by the NSA inspector general.
It seems quite possible that it was exactly these protections that Gonzales was trying to avoid when he came to the hospital that night to try to get Ashcroft's signature. Perhaps Gonzales and Card wanted to keep the monitoring program "as is," in its broadest form as authorized by John Yoo. But Goldsmith persuaded Comey and Ashcroft and Mueller that it was lawful only if it the monitoring was more targeted along the lines that DOJ would later defend. If this theory is right, it may mean that Comey, Ashcroft, Goldsmith, and Mueller may have been ready to resign at least in part over the proper interpretation of Article II.
Anyway, I should emphasize that this is all just speculation. We only know a very small chunk of the facts, and it could be that the real elephant is very different from the small part we are feeling.
Another Clash Between Virtual And Physical Perspectives in Internet Law:
The Ninth Circuit handed down an interesting copyright case today, Perfect 10 v. Amazon.com. It's interesting case for a number of reasons, but I was particularly intrigued by the clash between virtual and physical descriptions of the Internet on the question of when a computer "displays" a copyrighted work (see analysis starting at 5770). The court adopted a physical/external perspective rather than a virtual/internal one, basing its rule on how computers actually work rather than the impressions held by casual users. For more on the clash between physical and virtual perspectives in Internet law, see here. (Hat tip: Howard)
A few weeks ago, I noticed that a first-year student of mine used the word "conclusory" instead of "conclusive." I corrected him -- I was polite (I think), but my job is to teach students and part of the job is to teach them how to use words properly. A "conclusory argument," I pointed out, is an argument that is long on conclusions and short on supporting evidence; "conclusive evidence," on the other hand, is evidence that points persuasively to a certain conclusion.
A few days ago, when Senator Arlen Specter was asked about Attorney General Alberto Gonzales' statement on the U.S. Attorney firings, he dismissed it as "conclusory". This usage puzzled me; it's missing from the standard (non-legal) dictionaries; and it was also news to Steve of the Language Hat blog, who must surely be in the top thousandth of a percentile or so in knowledge of English vocabulary.
Huh? What do you mean, missing from standard English dictionaries? Well, sure enough, here's the entry from the Oxford English Dictionary: "Relating or tending to a conclusion; conclusive." And from the Random House, by way of dictionary.com, "conclusive."
Shocking as it is to me -- and to several lawyers that I talked to -- but "conclusory," which I'd long assumed was a standard English term with the definition I just gave, is actually legalese. We lawyers are just so steeped in legalese that there's some legalese we no longer recognize as anything but normal.
In any event, my instructions to my class were correct: In legal discourse, "conclusory" indeed means something very different than "conclusive." But of course it makes sense that the student didn't grasp this; he hasn't yet become acculturated to legal lingo the way I have.
How Can State AG's Get Sex Offender Information from MySpace?:USA Today has an interesting story on efforts by several state Attorneys General to get MySpace to turn over the names and addresses of registered sex offenders who have profiles on the site. The state AGs wrote a letter asking MySpace to turn over the information. MySpace refused, citing the privacy protections of the Electronic Communications Privacy Act. The state AGs responded by "blasting" Myspace for its refusal to help:
Connecticut Attorney General Richard Blumenthal on Tuesday blasted MySpace for refusing to share the information and said no subpoena is needed for MySpace to tell the attorneys general how many registered sex offenders use the site "or other information relating to possible parole violations." "I am deeply disappointed and troubled by this unreasonable and unfounded rejection of our request for critical information about convicted sex offenders whose profiles are on MySpace," Blumenthal said. "By refusing this information, MySpace is precluding effective enforcement of parole and probation restrictions that safeguard society." North Carolina Attorney General Roy Cooper echoed the sentiment, saying "it's sad that MySpace is going to protect the privacy of sex offenders over the safety of children."
MySpace is clearly right that federal privacy law prohibits them from complying with the AG's letter, at least in its entirety. MySpace provides both electronic communications services and remote computing services under the Stored Communications Act portion of ECPA, so they can't disclose basic subscriber information to the government without a subpoena or court order unless one of several exceptions in 18 U.S.C. 2702 applies (which none does).
It's a trickier question with meta-data like the total number of registered sex offenders. The statute prohibits the disclosure of "information pertaining to a subscriber or customer." 18 U.S.C. 2702(c)(1). Does the fact that X sex offenders are MySpace subscribers constitute information "pertaining" to its subscribers? I think it does — it does relate to them, even if it is not personally identifying. So although it's a closer case, I would think that MySpace probably can't turn over that information either.
Why did the state AG's even bother writing this letter, given that federal privacy law blocks the disclosure in these circumstances (clearly for some information, less clearly for other information)? I can think of a few possible explanations. One possibility is that this California's state privacy law may require a warrant for this information rather than a subpoena. See Cal. Penal Code 1524.2, 1524.3. In a federal investigation, the California law would be ignored under the Supremacy Clause, and the govermment would be able to obtain the information with a subpoena. In contrast, state investigations have to comply with California state law. If that law requires a warrant, obviously the AG's can't get one — they don't have any PC.
So perhaps the AG's knew that they couldn't compel the information from MySpace legally, and instead they wrote a letter hoping that MySpace might conclude that disclosure would fit in a voluntary disclsoure exception to 2702. (To be clear, I'm not at all sure about this theory, as California's statutory scheme is rather puzzling. But it seems like a possibility worth floating. Note that even barring state law regulation, out-of-state court orders are not binding on MySpace in California.) That's the less cynical explanation, anyway.
Yesterday the Senate considered an amendment to the water projects bill that would have required the U.S. Army Corps of Engineers to consider the impact of climate change on proposed water projects. The measure was largely symbolic, but it divided the Senate nonetheless, attracting a bare majority -- 51 votes -- but not enough Senators to pass under the rules for the bill. The AP story is here.
On Monday, our challenge was to figure out what soccer team the Guardian clip was skewering with its depiction of players being coached to dive, writhe, and plead for medical help. Of course, the exercise is something of a Rorschach test, since there are no identifying insignias anywhere and none of the players looks familiar. So, what are we to make of the prominence in the comments of confident nominations for Italy, Portugal, and Mediterranean nations generally?
Gross generalizations or hard-won reputations? Certainly, Northern European nations like to tell a story in which they alone uphold chivalric honor on the field against the encroachment of continental duplicity and sneakiness. This observation fits in nicely with broader cultural tales of Anglo-Saxon fair play, organizational abilities, and willingness to queue up versus Mediterranean penchants for eating dinner late, arguing about a 35-hour work week, and willingness to wear Speedos in public.
In practice (i.e., in pubs from Manchester to Munich), the argument is typically deployed with references to Mediterranean siestas, friends whose pockets were picked in [Rome, Marseille, the Algarve], and that time some guy cut the line at [the Coliseum, the Louvre, a Lisbon shrimp shack]. All of which results in this kind of behavior at the World Cup:
Of course, this isn’t the only version of the story. Italian, French, and Portuguese fans are quick to point out the boorish style of English soccer, which long consisted of mindless punts towards galoots up in the box, savage tackles, and nary a whit of style or skill. Roy Keane may not go down lightly in a challenge or be willing to roll around in front of his mates, the argument goes, but he’ll happily snap your shin in half.
There is a certain amount of truth to both sides of this debate, as footage of English and Italian league matches from twenty years ago will bear out. Yet there has also been a good deal of intermixture in the game since then. The English Premiership today includes many more foreign players than years past, as well as huge amounts of skill and, of course, a fresh surplus of diving. The Mediterranean leagues also include many more foreigners today, a more attacking game than the catenaccio affairs of decades ago, and some serious aggression of its own. For instance:
Only the Italian league seems unwilling to welcome as diverse an array of players and styles -- and so long as the Italians keep winning World Cup and Champions League trophies, they may be unlikely to feel any need to change.
If it is true that some nations are more tolerant of diving, what accounts for that attitude? And is diving a less competitive retreat from a willingness to contend using athletic ability alone or is it, instead, a more competitive willingness to engage in total warfare where every possible advantage is used?
A variation of this discussion of social norms also extends to questions about which of these kinds of societies produce better kinds of players (defenders, goalkeepers, attackers) and officials. Here again, gross caricatures dominate pub and taverna chat about how good goalies can come only from nations with a strong ethic of defending the realm, or how only a laissez-faire society with flair can produce gifted strikers.
I suspect that these topics tie into much deeper cultural attitudes and norms that lie far beyond the scope of these few paragraphs. But, for what it’s worth, many observers have pointed out that diving and faking injuries are phenomena almost wholly absent from the women’s game.
While Monday’s comments connected with a well-established debate about cultural observations in European soccer, Tuesday’s collection revealed another, decidedly American cultural debate. That is, the effeteness of this whole game of soccer. This attitude belies a very interesting difference between America, where soccer is not a blue-collar sport, and most of the rest of the world, where it most certainly is.
In America, some commentators would have us believe that soccer is weak because players don’t use their hands and there’s no manly contact such as there is in football. In Europe, others would retort that American football is just rugby for people who need padding, and baseball is cricket for people who can’t catch a ball with their bare hands. Without delving into the merits of these positions, if there are any, what is interesting is the apparently universal need to establish the manliness of one’s native sport.
Perhaps this simply has to do with standard nativism and the common tendency to dismiss other stuff as effeminate, Communist, fascist, or whatever else happens to be the epithet du jour. But in England, the saying is that soccer is a game for gentlemen played by thugs, while rugby is a game for thugs played by gentlemen. So perhaps there’s room for “evolution” in American attitudes as well.
Vanity Fair has some interesting excerpts from Ronald Reagan's diary that he kept throughout his eight years as president. There is some fascinating material, such as Reagan's early (December 1981) recognition that the Solidarity uprising against communism was a crucial opportunity for the West: "We can't let this revolution against Communism fail without our offering a hand. We may never have an opportunity like this one in our lifetime." Even earlier, he noted that Solidarity was "the first break in the Red Dike." So it indeed proved to be.
But the funniest part is Reagan's 1984 description of liberal Republican Senator Lowell Weicker as "a pompous, no good, fathead."
A divided panel of the U.S. Court of Appeals for the Sixth Circuit rejected a death-row inmate's appeal of the denial of his habeas petition in Henley v. Bell. Steve Henley was sentenced to death in Tennessee after his conviction on two counts of first-degree murder and aggravated arson. He filed a habeas petition alleging twenty-one errors in the state court proceedings. A federal district court denied all of Henley's claims, and Henley appealed on six issues.
In Henley v. Bell, Judge Cook wrote for herself and Judge Siler, rejecting all six of Henley's claims. Judge Cole dissented in part, as he would have granted Henley's ineffective assistance of counsel at sentencing claim and would have granted an evientiary hearing on Henley's due process challenge to "the systematic exclusion of women . . . from the position of grand-jury foreperson."
UPDATE: Habeas corpus petitions are not the only source of divided opinions on the Sixth. Doug Berman discusses an interesting sentencing case that divided the Sixth Circuit here. And for something completely different, check out the opinions in this case dividing over the proper remedy in an ERISA case (it's actually more interesting than it sounds).
Political ideology - at least in so far as it influences judicial decisions - is an extremely important attribute of a judicial nominee. The reason is clear: when judges make decisions in major cases, it is important that they get them right, not just that they do a good lawyerly job of justifying whatever conclusions they reach. As between a technically well-written opinion defending the wrong outcome in an important case and a mediocre opinion defending the right one, there is good reason to prefer the latter.
In cases where the relevant statute or constitutional provision is very clear, ideology may not influence the outcome much. But where there is vagueness and doubt (as there is with several important parts of the Constitution), both empirical research and common sense suggest that ideology may matter a lot. Moreover, the rise of nontextualist modes of interpretation has led to situations where ideology might influence the interpretation of even clear and unequivocal legal texts.
Since the dawn of the Republic, presidents have taken ideology into account when deciding who to nominate. Senators have every right to take it into account in deciding who to confirm. That is not to say that other considerations - including qualifications - are unimportant. They are and they should be. Nor do I mean to suggest that either the president or senators should only approve those nominees who agree with them 100%. However, ideology is one of several considerations that both the president and the Senate can reasonably take into account.
Obviously, senators will sometimes oppose a nominee for ideological reasons that I think are unsound. But the same is true of presidents, who will sometimes use flawed ideological criteria in picking their nominees. On average, however, a nominee subject to scrutiny by both the president and the Senate is likely to be better than one whose ideology has been weighed by the president alone, and thus represents a possibly much narrower range of interests.
The nomination procedure established by the Constitution inevitably invites consideration of ideological and political factors. After all, judges are nominated by the nation's most prominent political leader (the President) and are subject to confirmation by another political body (the Senate). Unlike many European countries, we do not have a "professional" judiciary in which appointment and promotion is controlled by higher ranking judges, bureaucrats, or other "nonpolitical" officials. On balance, that is a good thing. Flawed, as they are, the ideological preferences of the president and the Senate are more likely to lead to good outcomes than those of a narrow clique of career government bureaucrats.
That said, those who oppose a nominee because of his or her ideology should do so explicitly, not behind dubious accusations of incompetence or ethical impropriety. For example, as co-blogger Jim Lindgren has shown, American Bar Association ratings of judicial nominees generally rank liberal nominees higher than conservative ones with similar credentials. The ABA has every right to take ideology into account in rating judicial nominees, but it should not pretend that its partially ideology-driven judgments reflect a purely nonpolitical evaluation of objective "qualifications." On this issue (if on little else), I agree with Democratic Senator Charles Schumer:
For one reason or another, examining the ideologies of judicial nominees has become something of a Senate taboo. In part out of a fear of being labeled partisan, senators have driven legitimate consideration and discussion of ideology underground. The not-so-dirty little secret of the Senate is that we do consider ideology, but privately. Unfortunately, the taboo has led senators who oppose a nominee for ideological reasons to justify their opposition by finding nonideological factors, like small financial improprieties from long ago. This "gotcha" politics has warped the confirmation process and harmed the Senate's reputation.
Shunning explicit ideological considerations has not always been the Senate's practice. From the beginning of our republic, the president's judicial nominees have been rejected based on their political ideologies, sometimes even for their views on a single political issue. In 1795, George Washington's nomination of John Rutledge to be chief justice was scuttled because Rutledge had criticized the Jay Treaty. In 1845, President Polk's nomination of George Woodward was defeated because of his positions on immigration. ...
It would be best for the Senate, the president's nominees and the country if we return to a more open and rational debate about ideology when we consider nominees.
The responses to my post on the Keisler nomination below raise many issues that I have addressed in prior posts on this blog (see here, here, here, and here). To recap my take on things: 1) I believe the Senate should be relatively deferential in confirming judicial nominees, focusing on qualifications rather than ideology; 2) the modern practice of opposition to appellate judicial nominations on ideological grounds began in the mid-to-late 1980s when Senate Democrats decided to try and blog some of President Reagan's nominees; 3) efforts to block Reagan and Bush I nominees intensified in the last two years of their presidential terms(1987-88 and 1991-92); 4) once Republicans took the Senate during the Clinton Administration, they retaliated and upped the level of obstruction, often engaging in greater obstruction than had Senate Democrats; 5) during this administration, Senate Democrats have upped the level of obstruction, in both the majority and the minority; 6) this "downward spiral" of retaliation and politicization (to use Larry Solum's phrase) is ultimately corrosive of the judiciary and prevents the nomination and confirmation of the most-qualified judicial nominees; 7) neither party should engage in the obstruction of qualified judicial nominees, and both parties deserve blame for engaging in obstruction and delay in the past.
Returning to the present, I believe there is (once again) a window of opportunity to escape from the "downward spiral of politicization." While there is a Republican President, the Democrats control the Senate and have a reasonable prospect of capturing the Presidency in 2008. Therefore, Democrats have the opportunity to re-establish a standard of good behavior toward judicial nominees — a standard neither party has met in quite some time — and therefore create Republicans to follow suit.
Another possibility would be for both parties to agree to a set of rules now that would bind both parties beginning in January 2009. Such a deal is only possible sufficiently far in advance that there is genuine uncertainty about which party will control the Senate and the White House when the deal becomes effective. On this basis, I believe there was a greater opportunity for such a compromise in 2003 than there is today, but I would welcome this or any other compromise that would put an end to the current judicial confirmation wars.
From United States v. Black (Apr. 10, 2007) (Kozinski, J., joined by Reinhardt, Kleinfeld, and Berzon, JJ., dissenting from denial of rehearing en banc) (some paragraph breaks added, citations deleted):
The relevant facts are undisputed. Walker called 911 at precisely 8:39:3465 A.M. from a grocery store to report that she had just been beaten by Black, who had a gun. At the end of
the call, Walker indicated that she would drive back to the
apartment with her mother, and that they would wait for the
police outside the building in a white pick-up truck. She
spoke with the dispatcher until 8:40:1749. Officer Rodriguez
was dispatched at 8:42:5825, and arrived at the apartment half
a minute later, at 8:43:2487. The total time elapsed between
Walker hanging up with the 911 dispatcher and the arrival of
the police at the apartment was three minutes and seven seconds.
Rodriguez testified that it would take about two minutes to
drive from the grocery store to the apartment. When Rodriguez
arrived, he did not see Walker, her mother or the white
truck. Walker was, at that point, just one minute past her earliest
possible arrival time.
Rodriguez and another officer
knocked on the apartment door, but nobody answered. The
other officer circled around back and found Black in the backyard.
When the officers didn’t find a gun on Black, they took
his key to the apartment, performed a “welfare” search of the
dwelling and found the gun -- and, of course, didn’t find
Walker.
There was absolutely no evidence of the government’s
nightmare scenario that Walker lay bleeding and unconscious
inside the apartment. As the 911 dispatcher’s log shows, there
was “not enough time for Black to somehow get Walker back
into the apartment, and to injure her, and then to leave, as the
government theorizes could have been the case.” Nor were there any eyewitnesses, signs of a
scuffle, reports of gunshots or even of a commotion. The
abduction would have happened in the street, in broad daylight,
yet no one saw a thing; the super, who talked to the
police, reported nothing unusual.
Officer Rodriguez admitted that he had “[n]o information”
that Walker was in the residence; his explanation for the warrantless entry was that “if she’d have come back to the residence,
[Walker] possibly could have gotten taken . . . back
into the house and stuff.” If this satisfies the government’s
“heavy burden” to show “extraordinary circumstances” not
based on “speculation,” then
“heavy burden,” “extraordinary circumstances” and “speculation”
have no meaning in these parts.
The majority gives the government a pass because “the exigencies
of domestic abuse cases present dangers that, in an
appropriate case, may override considerations of privacy.”
The problem with this approach
is that the government has any number of such crises-du-jour:
terrorism, child pornography, child abuse, drugs, hate crimes --
the list is endless. When confronted with such serious
crimes, it is the job of the police to be suspicious; the job of
the courts is to insist that police develop evidence supporting
these suspicions before they defile the sanctity of the home.
In a particularly disturbing passage, the panel majority
opines that “[e]rring on the side of caution is exactly what we
expect of conscientious police officers.” .
This is entirely backwards when the cautious error involves
invasion of the home. In such circumstances, we expect police
to err on the other side of caution by staying out unless and
until they obtain a warrant or satisfy the demanding constitutional
standard for a warrantless search. The majority’s unfortunate
phrase will be widely seen as a green light for the
police to “err on the side of caution” by breaking into people’s
homes based on half-baked suspicions.
When a panel of our court can find that the facts here satisfy
the government’s “heavy burden” for invading the home
without a warrant, I despair about the future of our constitutional
rights. If the right accorded the greatest protection by
the Fourth Amendment -- the right to privacy of the home --
can be so casually brushed aside, no right is safe. Because my colleagues do not similarly view this issue as one of exceptional
importance, I sorrowfully dissent.
From the panel majority (some paragraph breaks deleted and some added, some citations omitted):
The dissent parses the time too finely. First, the police did not have stop-watches in hand and
could only approximate the elapsed times. Second, if Black
had seen Walker arrive outside the building, it would take little
time for him to threaten Walker with a gun and force her
inside. Third, what the officers knew at the time was that
Walker said she would meet them at the scene, she was not
there but her attacker was, and he denied living in the apartment
though he had a key to it.
These circumstances were reason
enough for the officers to believe that Walker could very
well be in the apartment injured. In addition, the attacker
admitted that he was aware that the officers were investigating
a domestic violence call. How did he know that? It could
be that Walker told him earlier that she was calling the police.
But a more serious alternative was also a possibility: Walker
had returned and told Black that the police were on the way
to which he had a violent response. The officers did not have
the time to conduct a thorough examination of all the information
that was available to them and to conclude, as we might
after the fact, that this was an unlikely possibility.
As the dissent rightly concedes, whether the actions of the
police are objectively reasonable is to be judged by the circumstances
known to them. They were not conducting a trial,
but were required to make an on-the-spot decision as to
whether Walker could be in the apartment in need of medical
help; the objective circumstances did not require them to
reach the conclusion that there was little or no risk that
Walker was in the apartment in danger. To the contrary, the
combination of these circumstances support an objectively
reasonable belief that Walker could be in the apartment.
This is a case where the police would be harshly criticized
had they not investigated and Walker was in fact in the apartment. Erring on the side of caution is exactly what we
expect of conscientious police officers. This is a “welfare
search” where rescue is the objective, rather than a search for
crime. We should not second-guess the officers objectively
reasonable decision in such a case.
Our circuit has recognized that “the exigencies of
domestic abuse cases present dangers that, in an appropriate
case, may override considerations of privacy.” While we have
stopped short of holding that “domestic abuse cases create a
per se exigent need for warrantless entry,” we continue to
evaluate, on a case-by-case basis, whether the “total circumstances,
presented to the law officer before a search ...
relieved the officer of the customary need for a prior warrant.”
Our own individualized assessment of the circumstances
presented in this case leads us to the same conclusion
that the district court reached: the officer’s initial warrantless
entry into the apartment was justified by exigent circumstance
and, as a result, the subsequent seizure of Black’s handgun --
this time, accomplished with warrant in hand -- was not
unconstitutional under the Fourth Amendment.
The Kennedy Court? Or the Roberts Court?:
Over at Legalities, Jan Crawford Greenburg has a provocative post about the direction of the Supreme Court. An excerpt:
Some are going so far as to call [the current Court] the "Kennedy Court," just as people used to refer to the old Court, led by Chief Justice William Rehnquist, as the "O'Connor Court."
Not to sound like AMK himself here, but I've been struggling with that. That label just doesn't fit—nor does it capture what's going on inside the Court. I know Kennedy is the Man to Watch. But I don't think we’re seeing the emergence of the Kennedy Court.
This is a Supreme Court engaged in a fierce battle of ideas, a big-picture struggle over the role of the Court and the direction it's going to take. When you talk about long-range influence over the law, it's the ideas that define the Court. It's a Court in struggle—not for the vote of one justice, but for an intellectual mooring.
It's the Roberts Court v. the Stevens Court.
And as this term is beginning to make clear, in that battle, Roberts' vision is going to win out. It may not be this term, though the Chief certainly will prevail in those big-issue cases more than JPS will. It may not be in every case, or with much in the way of consensus. But even if Stevens stays another decade (to 97!), I’d bet that Roberts is going to carry the day with this group of justices.
Just read Asociacion de Educacion Privada de P.R. v. Garcia-Padilla, a very interesting First Circuit opinion from last month. Puerto Rico regulations and statutes imposed several constraints on private schools' textbook selection process, including:
In the case which [sic] there are changes in the edition, the school will inform [sic] in the book list which of these books have different editions, what the change specifically consists of, and whether it is a significant change or not, as defined by these regulations. In case that the changes are not significant, the school has to inform the parents on said list, that they have the option of buying the previous edition....
[T]he exclusion of chapters or sections, cosmetic changes and/or style, such as cover changes, chapter or section order, book texture and/or material does not constitute a significant change. Additions of one or several sentences to one chapter or section or through a new book edition will not be considered a significant change nor the addition of one or several drawings, graphics, tables, or photos.
and
[E]very private school accredited by the General Council of Education that requires the acquisition of school textbooks to [sic] their students shall have the consent of the Association or Council of Parents or of an Assembly of Parents to determine the maximum budget applicable for each school grade for the acquisition of said books required in each school year.
The court held that these rules unconstitutionally "interfere[d] with the private schools' decisions regarding what may be taught and how it may be taught." As to the first rule,
[The first rule's] definition of 'significant change' virtually ensures that the private schools will have to allow its students to use textbooks with content the schools do not approve of, either because it includes information that the schools do not wish to teach or because it lacks information the schools would like to teach. For example, a private school may find the inclusion of new photographs and diagrams in a science textbook particularly helpful in teaching a particular concept, and yet Rule 11 of Regulation 6458, by its very terms, would prevent the private school from requiring its students to purchase that textbook because under Regulation 6458, the addition of drawings, graphics, tables, photographs does not constitute a significant change between textbook editions.
More alarmingly, Regulation 6458 may force schools to teach using books that contain information directly in conflict with its particular philosophy, methodology, or mission. Regulation 6458 provides that a "significant change" is a "historical, technological, scientific and/or cultural change[] . . . [that] cause[s] the total or partial revision of one or several chapters or sections and/or the inclusion of one or several chapters or sections," but not "[t]he exclusion of chapters or sections" or "additions of one or several sentences to one chapter or section or through a new book edition." But the exclusion or inclusion of even one sentence or phrase may very well be considered a significant change by a private school for either teaching purposes or in light of the school's academic philosophy or mission. In fact, seemingly minor changes in text may be precisely what makes a book's new edition acceptable to a school and consistent with the message the school wishes to convey. For example, a book may become acceptable by virtue of the omission in a later edition of language found in prior editions.
As to the second rule,
In requiring private schools to obtain parental consent for the textbook budget, Law 116 significantly limits the schools' ability to choose their own books. Under the statute, parents have the power to set the private schools' textbook budget by withholding consent until the school agrees to a particular budget. This power to set a maximum budget, in turn, restricts the available choices for textbooks because the total price of all textbooks chosen must be within the approved budget. In essence, Law 116 forces schools, at the margins, to choose textbooks according to price, rather than content. This is a significant restriction on private schools' choice of textbooks.
Nor was the court impressed by the state's arguments that these rules were needed to protect parents from excessive and unjustified cost. The state was allowed, the court held, to serve its interests by mandating disclosures of required books, prices, and any deals the school may have struck with publishers; but the Puerto Rico rules were an unjustified interference with schools' discretion to choose what and how to teach. Seems like an eminently sound decision to me.
A Right To Choose Whom You Live With -- and To Speak About This in Ads:
My post about the Ninth Circuit's Fair Housing Act / 47 U.S.C. § 230 decision focused on the § 230 immunity for online services, since that's what the panel opinion focused on. But it leads me to bring up again some thoughts I had about the housing discrimination law question.
In my view, the right to intimate association, which the Court has recognized, ought to give people a right to choose whom they live with, including based on religion, race, sex, sexual orientation, family status, handicap, and the like. And both that right and the right to free speech ought to give people a right to express this preference in ads.
My initial thinking on this was prompted by a 2002 decision in which the California Fair Employment & Housing Commission penalized Melissa DeSantis $500 for inflicting "emotional distress" on a would-be roommate by allegedly telling him that "I don't really like black guys. I try to be fair and all, but they scare me." The decision also required her to pay the would-be roommate $240 in expenses — and take "four hours of training on housing discrimination." (See Department of Fair Employment & Housing v. DeSantis, 2002 WL 1313078, Case Nos. H 9900 Q-0328-00-h, C 00-01-180, 02-12 (Cal. FEHC May 7, 2002).)
People have gotten used to the notion that businesses can't discriminate based on race, sex, religion, and the like in choosing whom to hire, whom to let in their restaurant, or whom to rent to. This does burden the employer's or owner's freedom of choice, but the dominant view (whether right or wrong) is that this burden is fairly slight, and is outweighed by the felt need to save certain groups from being systematically excluded from important opportunities.
But antidiscrimination law has to stop somewhere. The government can't tell me not to discriminate based on race or religion (or sex!) in choosing a spouse, even though marital choices obviously have important economic effects. Likewise, the government shouldn't be able to interfere with my choice of dinner guests or house guests — or, I think, roommates who would share a two-bedroom apartment.
Such interference, it seems to me, violates the right to intimate association, which the Supreme Court has recognized as a protected unenumerated right. There's no Supreme Court caselaw on the right to intimate association in choice of roommates, but the Court has suggested that the right might apply to sufficiently selective private clubs, and at least one lower court has found that members of a selective club with several hundred members have a constitutional right to choose their fellow members. Surely the same should apply to someone choosing whom to live with in a two-bedroom apartment.
The Wisconsin Court of Appeals rejected this view, in the case cited in the next paragraph, but I think its reasoning — that the right of intimate association is forfeited when one rents out a room in one's house, because of the financial nature of the transaction — was mistaken. Those who reject unenumerated rights generally may reject the right to intimate association, as well as the right to marry, parental rights, and other unenumerated rights. But existing law does accept that the Constitution secures some unenumerated rights, including the right to intimate association, and the right to choose whom to live with seems to me a very strong candidate for such protection.
California law in fact partly reflects the judgment that people should be free to choose whom they live with, concluding (in Cal. Gov. Code § 12927(c)(2)(A)) that owners of "single-family house[s]" are allowed to discriminate in selecting roomers or boarders, if they have only one such boarder; "owner" has been read to include a tenant who's renting to a roommate, and presumably "house" would be seen as including an apartment. Likewise, the Fair Housing Act lets owners of property discriminate in selecting roommates. (Not all housing laws are this protective of roommate's intimate association rights; see Sprague v. City of Madison, which held Ann Hacklander-Ready liable for refusing to accept a lesbian as a housemate, and made Hacklander-Ready pay $300 in damages and $23,000 in attorneys' fees; David Bernstein has more on the subject.)
But both under California law and under federal law, it's illegal to tell prospective roomates about one's roommate preference, even when it's legal to actually discriminate based on that preference. It's illegal to put out an ad saying "Single white female seeks same to share apartment" (that's expressing a preference based on race and marital status), or "lesbian pagan seeks same" (preference based on sexual orientation and religion) — and it's illegal to say that to people in person.
This advertising restriction, it seems to me, is unconstitutional in two ways. First, it interferes with people's freedom of speech; while the government may prohibit commercial advertising that expresses an intent to illegally discriminate, the law here bars people from expressing an intent to do something that's quite legal — choose one's roommate based on one's own preferences. (In the DeSantis case, incidentally, the Commission specifically declined to find that DeSantis actually discriminated against the would-be roommate based on race — it only found that she inflicted "emotional distress" on him by making the statement.)
Second, the advertising ban substantially burdens the freedom of intimate association. Though the law doesn't ban the exercise of the right to choose one's roomate as such, it does ban a very important tool through which one can exercise this right, which is advertising. If the lesbian pagan wants to find another lesbian pagan, she'll have a hard time doing that if she has to waste time sorting through dozens of applicants who don't qualify. What's more, she presumably can't even ask them about their sexual orientation or religion, since that itself might be seem as expressing a "discriminatory statement." In constitutional lingo, the law places a "substantial burden" on the exercise of the right to intimate association, even though it doesn't ban it outright.
It's also not clear that the law is doing the discriminated-against roommates any great favor. If people won't rent to me because they're looking for a black or Hispanic or Asian cotenant, I'd rather know that up front, in the ad itself, rather than spending my time doing something that, unbeknownst to me, is entirely futile (and in fact quite lawfully futile, so long as the tenant says nothing to me about her real criteria and her reasons for rejecting me). That's a less important factor than the constitutional arguments, but I think it's also worth bearing in mind.
Full Transcript of Comey Testimony on NSA Surveillance Program:
Marty Lederman has posted the full transcript (.pdf) of James Comey's testimony today. It's pretty riveting stuff.
If I'm reading the transcript correctly, it seems that most of the highest-level officials in DOJ were ready to resign over the NSA Surveillance program when the White House decided to continue it without DOJ approval. The Office of Legal Counsel under Jack Goldsmith had come up with parameters under which DOJ was willing to approve the program as legal — perhaps within the scope of the AUMF? who knows — and it sounds like the then-existing program was broader than what OLC thought was permitted. Comey agreed with OLC's legal analysis, so he wasn't willing to give DOJ's approval to the program.
So Card and Gonzales (then WH Counsel) go to Ashcroft at the hospital to try to persuade Ashcroft to overrule Comey. Comey gets word of what is happening, and he gets to the hospital first and tries to get Ashcroft ready for Card and Gonzales. Comey explains:
And so I raced to the hospital room, entered. And Mrs. Ashcroft was standing by the hospital bed, Mr. Ashcroft was lying down in the bed, the room was darkened. And I immediately began speaking to him, trying to orient him as to time and place, and try to see if he could focus on what was happening, and it wasn’t clear to me that he could. He seemed pretty bad off . . . I tried to see if I could help him get oriented. As I said, it wasn’t clear that I had succeeded.
Soon Goldmsith and the ADAG are there by Ashcroft's bedside, and a few minutes later Gonzales and Card arrive. Comey explains what happened next:
They greeted the attorney general very briefly. And then Mr. Gonzales began to discuss why they were there — to seek his approval . . . .
And Attorney General Ashcroft then stunned me. He lifted his head off the pillow and in very strong terms expressed his view of the matter, rich in both substance and fact, which stunned me — drawn from the hour-long meeting we’d had a week earlier — and in very strong terms expressed himself, and then laid his head back down on the pillow, seemed spent, and said to them, But that doesn’t matter, because I’m not the attorney general. . . . There is the attorney general, and he pointed to me, and I was just to his left.
(Hollywood, are you getting this?) Anyway, the White House ended up not getting DOJ approval for the next period of the program; the President authorized the order for another 45-day window without DOJ's signature. This led the top people at DOJ to move towards resigning. As Comey puts it, "I didn't believe that as the chief law enforcement officer in the country I could stay when they had gone ahead and done something that I had said I could find no legal basis for." As I understand it, Comey, FBI Director Mueller, AG Ashcroft, and several other high-level officials were ready to resign.
The crisis was defused when President met with Comey 1-on-1. It sounds like the President personally either gave in or reached a compromise with Comey (it's not clear to me which) that refashioned the program in a way that DOJ was willing to approve.
Are others reading the transcript the same way? Either way, this is pretty remarkable testimony. (Update: I have added to the original post.)
New and Interesting 47 U.S.C. § 230 Content Provider Immunity Opinion,
in Ninth Fair Housing Council v. Roommate.com. The Ninth Circuit decision is written by Judge Kozinski, with a partial dissent by Judge Reinhardt, and a partial concurrence in the judgment (expressing a good deal of disagreement) by Judge Ikuta.
The Fair Housing Council sued Roommate.com, which runs roommates.com, under the Fair Housing Act. Roommates.com (I'll use the more familiar plural site name, rather than the less familiar singular company name) contains many expressions of people's preference for roommates' sex, familial status, sexual orientation, and sometimes race, religion, and handicap; the Fair Housing Act generally prohibits housing advertising that expresses such preference as to "race, color, religion, sex, handicap, familial status, or national origin. (Interestingly, the FHA allows such discrimination when conducted by an owner who is looking for roommates; this might extend to a renter who is looking for roommates, though I'm not sure; but the exemption expressly excludes the advertising ban, so that the advertising ban does apply even to roommate searches. More on that later.)
Roommates.com's defense is 47 U.S.C. § 230, which many courts, including the Ninth Circuit, have interpreted to provide broad immunity to content providers who merely let others post material on their sites. That's why I'm generally not legally liable for things you folks post in the comments (though let's not make a test case out of it, OK?).
But the Ninth Circuit panel held that there's an important limit to such immunity -- because § 230 defines "information content provider" as "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service" (emphasis in Ninth Circuit opinion), roommates.com may be liable based on its own actions as information content provider. And that, the Ninth Circuit held, means roommates.com might violate the FHA insofar as it solicited discriminatory preferences that the FHA prohibits the publication of, and then let people search based on those preferences.
So how did this play out?
1. Roommates.com did ask people for their preferences by sex, sexual orientation (irrelevant to the FHA), and presence of children, and let searchers search by such preferences. The questions about roommate preferences were roommates.com's own communications, and thus weren't immune under § 230 (though the panel expressed no opinion about whether the questions themselves violated the FHA). All three judges agreed on this.
2. Roommates.com's communication of users' answers to those questions, and provision of search services based on those answers, was also not immune under § 230: Roommates.com expressly asked for this information, and was thus in part the creator and developer of the information. This was the opinion of Judges Kozinski and Reinhardt, with Judge Ikuta seemingly disagreeing.
3. Roommates.com's communication of users' "Additional Comments," given in response to roommates.com's "strongly recommend[ing] taking a moment to personalize your profile by writing a paragraph or two describing yourself and what you are looking for in a roommate," is immune under § 230, because
Roommate’s involvement is insufficient to make it a content provider of these comments. Roommate’s open-ended question suggests no particular information that is to be provided by members; Roommate certainly does not prompt, encourage or solicit any of the inflammatory information provided by some of its members. Nor does Roommate use the information in the “Additional
Comments” section to limit or channel access to listings. Roommate is therefore not “responsible, in whole or in part, for the creation or development of” its users’ answers to the open-ended “Additional Comments” form, and is immune from liability for publishing these responses.
This was the opinion of Judges Kozinski and Ikuta, with Judge Reinhardt dissenting at some length.
So the bottom line: If other sites (for instance, Craigslist, which is the subject of a similar lawsuit) simply ask people to post their ads, and let others search the ads in full text, but without expressly asking for sex/familial status/etc. preferences and specifically providing searches for such preferences, the Ninth Circuit opinion suggests they will be immune. But say a site invites a certain kind of information, for instance asks people to express a preference that one may not express in housing ads, or expressly asks people "to provide private, sensitive and/or defamatory information about others" (Judge Kozinski's example). Then the site will be treated as a content provider of that information, won't get § 230 immunity, and thus may be liable (if the request is indeed soliciting information that it would be tortious to publish).
So, the bottom line: This is not a substantial retrenchment of the preexisting law under 47 U.S.C. § 230, which offers a great deal of immunity for those Internet outlets that merely pass along others' speech. But it does suggest that when the outlets try to channel the speech in likely illegal directions, they may be liable for the result of that channeling.
The Washington Timesreports on New York mayor Michael Bloomberg's preparations for a potential independent White House run:
The mayor has told close associates he will make a third-party run if he thinks he can influence the national debate and has said he will spend up to $1 billion. Earlier, he told friends he would make a run only if he thought he could win a plurality in a three-way race and would spend $500 million -- or less than 10 percent of his personal fortune.
A $1 billion campaign budget would wipe out many of the common obstacles faced by third-party candidates seeking the White House.
"Bloomberg is H. Ross Perot on steroids," said former Federal Election Commission Chairman Michael Toner. "He could turn the political landscape of this election upside down, spend as much money as he wanted and proceed directly to the general election. He would have resources to hire an army of petition-gatherers in those states where thousands of petitions are required to qualify a third-party presidential candidate to be on the ballot."
Another showdown over judicial nominations is looming on the horizon. In 2006, President Bush nominated Peter Keisler to a seat on the U.S. Court of Appeals for the D.C. Circuit, and renewed the nomination earlier this year. Keisler is eminently qualified for a seat on the Court, but Senate Democrats may oppose his confirmation nonetheless. As The Hill reports:
The judge’s liberal critics acknowledge that he has excellent legal credentials, but charge that he has shown no commitment to advancing civil rights or environmental and worker protections. They are also suspicious of his role as co-founder of the Federalist Society, a bastion of conservative jurisprudence.
Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) last week hinted that Democrats would block Keisler’s nomination.
There is little to challenge in Keisler's record, as he has distinguished himself in both private practice and government service -- so his opponents will instead insist that the Administration has been too slow, or too unwilling, to release documents that bear on Keisler's fitness for the bench.
Last year, liberal groups filed Freedom of Information Act requests with the Ronald Reagan Presidential Library for documents related to Keisler’s time in the administration. Although the Reagan Library has cleared the records for public release, the White House has withheld them from dissemination.
“Unless those records are publicly disclosed, the Senate Judiciary Committee lacks the information to consider someone to lifetime appointment to the second-most important court in our country,” said Judith Schaeffer, the legal director of People for the American Way, a group that has led opposition to Bush nominees.
In my opinion, Keisler deserves confirmation on the merits. I also believe Senate Democrats should begin to consider how they would like Democratic judicial nominees to be treated in the future, and set an example. This would be a welcome step toward a de-escalation in judicial nomination fights -- a step the next President (whomever he or she is) might appreciate.
James Comey Details Renewal of NSA Surveillance Program:
Former Deputy AG James Comey testified this morning before the Senate Judiciary Committee about the wrangling over the renewal of the NSA Surveillance Program when Comey was serving as Acting AG during John Ashcroft's hospitalization. We knew the broad outlines of the story before, but Comey's testimony offers considerably more detail. The Associated Press has a general overview; TPMMuckraker has more details. A taste:
According to Comey, he was on his way home when he got a call . . . that Alberto Gonzales and Andrew Card were on their way to the hospital [to see Ashcroft and get his approval for the program]. Comey then rushed to the hospital (sirens blaring) to beat them there and thwart "an effort to overrule me." After Comey arrived at the hospital with a group of senior Justice Department officials, Gonzales and Card arrived and walked up to Ashcroft, who was lying barely conscious on his hospital bed. "Gonzales began to explain why he was there, to seek his approval for a matter," Comey testified. But Ashcroft rebuffed Gonzales and told him that Comey was the attorney general now. "The two men turned and walked from the room," said Comey. A "very upset" Andrew Card then called Comey and demanded that he come to the White House for a meeting at 11 PM that night. After meeting with Justice Department officials at the Justice Deaprtment, Comey went to the White House with Ted Olson, then the Solicitor General to the White House. He brought Olson along, Comey said, because he wanted a witness for the meeting. But Card didn't let Olson enter and Comey had a private discussion with Card. This discussion, Comey testified, was much "calmer." According to Comey, Card was concerned about reports that there were to be large numbers of resignations at Justice Department. Gonzales entered with Olson and the four had an apparently not very fruitful discussion. The program was reauthorized without the signature of the attorney general. Because of that, Comey said, he prepared a letter of resignation. "I believed that I couldn't stay if the administration was going to engage in conduct that Justice Department said had no legal basis."
Cass Sunstein's article on the apparent absence of visionaries on the Supreme Court (free registration required) claims that there are no liberal visionaries among the current Supreme Court justices. He argues that the visionary justices of the past "had large and powerful visions of the meaning of the Constitution, and they worked hard and often successfully to convince their colleagues to embrace that vision. These justices also displayed undeniable courage, arguing on behalf of their constitutional vision regardless of its inconsistency with orthodox opinion in important circles--or even in the nation as a whole." Sunstein believes that the two most liberal justices on the Court "Ruth Bader Ginsburg and Stephen Breyer--are exceedingly careful lawyers who usually avoid grand pronouncements" - and therefore don't qualify as visionaries by his definition. By contrast, he believes that conservatives Antonin Scalia and Clarence Thomas do qualify, because they "have a clear and large-scale vision for constitutional law."
I think that Sunstein is right about Thomas and Scalia, though he probably exaggerates the clarity and consistency of the latter's views (see this article by co-blogger Randy Barnett). Sunstein is also probably wrong in describing Scalia as a supporter of "significant limits" on congressional power, in light of Scalia's concurrence in Gonzales v. Raich, which essentially endorses the abolition of any such limits (at least under the Commerce Clause).
However, Sunstein is wrong about Breyer, and probably also Ginsburg. Justice Breyer not only has a "clear and large-scale vision for constitutional law," he has written an entire book promoting his view that the Court should promote "active liberty." I explain the broad scope and ambition of Breyer's theory in this review. Breyer's agenda for the Court may not be "large and powerful" enough to be called "visionary," but it is at least as sweeping as Scalia's. There are, to be sure, ambiguities and contradictions in Breyer's theory (some of which I point out in my review), but the same is true of Scalia and Thomas.
Justice Ginsburg is a more complex case. Unlike Breyer, she has not laid out a comprehensive theory of constitutional law. However, as head of the ACLU Women's Rights Project in the 1970s, she successfully advocated for strong judicial scrutiny of laws classifying on the basis of gender, a cause she has continued to pursue on the Court in opinions such as United States v. Virginia. More broadly, her opinions often champion the longstanding liberal view that courts should closely scrutinize laws that seem to discriminate against groups that are underrepresented in the political process (e.g. - blacks, gays, and women), but not those laws that seem intended to help them (e.g. - affirmative action programs). Unlike Breyer and Scalia, Ginsburg has not written any articles or books that lay out her constitutional vision in detail. But neither did most of the past visionaries discussed in Sunstein's article, including Brennan and Marshall.
It is, however, true that today's Supreme Court visionaries - on both the right and the left - have not succeeded in getting the Court to endorse their views across the board. The reason for this, however, is not lack of vision but the closely divided nature of the Court over the last twenty years. At least through the early 1970s, Brennan and Douglas had the advantage of working with an overwhelming liberal majority on the Court that supported their agenda on most major issues. Scalia, Thomas, Ginsburg, and Breyer have not enjoyed comparable good fortune.
Our political candidates might have us believe that nothing spruces up the country like a fresh coat of regulation, but rulemaking is of course far from a simple aesthetic matter of enacting "common sense" solutions. Even in the relatively rare cases where a problem is manifest and almost universally condemned, descrying its solution and then fixing it with new rules can be extremely difficult. And attempting to tinker with an already complex system, in particular, can easily exacerbate any original shortcomings.
Executive compensation readily comes to mind as one example. Although a few people think CEO pay is too low, I think it's fair to say that plenty of Americans are put out by the more obscene packages. Yet almost every one of the repeated attempts to regulate compensation has backfired: the taxing of golden parachutes in the early '80s popularized what had been a relatively rare perquisite; the cap on deductions for pay over $1 million quickly turned into a floor; and increased disclosure has allowed CEOs and boards to see what others are getting and to ratchet compensation even higher.
Soccer has its own delicate web of regulation, pieced together to patch over the evil ingenuity of players. For example, the current rule forbidding goalkeepers to pick up backpasses from teammates evolved to cope with chronic time-wasting. And the offside rule was intended to bar strikers from perching and poaching in the opposing goalmouth.
So should we adopt a Burkean approach to the matter and presume that our existing system is the ideal product of a century of footballing wisdom? I will allow that caution is warranted but won't insist on quite so conservative an approach as my esteemed compatriot -- I see the aforementioned rules as fairly good examples of how new rules can improve soccer.
And we are not dealing here with a revered constitution of football; the rules change regularly: the offside rule has been liberalized twice in recent years to switch the interpretation of "even is off" to "even is on" (i.e., an attacker level with the last defender is now onside as opposed to offside) and to allow for harmless error (i.e., players in an "offside" position may not be penalized if they don't interfere with play).
My motivation for proposing changes rests on my primary complaint that, in World Cup soccer especially, referees play too prominent a role. Because of the quality of the competition and the dread of losing on such an important stage, teams often play not to lose, so games are difficult to win through skill alone. Players are well aware that a referee can hugely alter a game by decimating one team with a red card or by awarding a penalty, so naturally (if regrettably) players attempt to fool the referee through chicanery.
My proposals therefore attempt to deal with two separate parts of this dynamic: first, the referee's ability to discern the facts accurately; second, the rewards and punishments that the players are so desperately attempting to cajole from their minders.
First, fact-finding. FIFA could readily increase the ratio of officials to playing surface, by adding more referees, just as many other sports have (e.g., basketball, football, and baseball, which increases the number of its umpires for playoff games). FIFA could incorporate greater use of post-game video review, at least to rule players in or out of subsequent games in a tournament. Finally, in-game video review could allow officials, before play continues
(a) to rule out goals like Maradona’s:
and (b) to award red cards to players like Schumacher.
Even venerable old English sports like rugby (which is a free-flowing game) and cricket use this tool.
Players may be deterred from cheating if they believe they will be more readily caught. On the other hand, adding more referees would not obviously achieve the larger goal of reducing the role of referees in soccer.
On that topic, let’s turn now to sentencing guidelines. FIFA could fine-tune its existing yellow and red card punishments by instituting a sin-bin to send players off for set periods, as in hockey or rugby. The existing rules against “simulation” (diving) and requiring “injured” players to leave the field could be enforced more rigorously. Referees might be forced to choose whether a given fouler or faker in a tackle deserves a card.
As for a system of more sensitive rewards (which are just more punishments against the offending team), penalties could be awarded only after a certain number of cards have been handed out (as with basketball’s free-throw regime) or, of course, the spot could be moved further away from the goal. Given the amount of collectible data on penalties, FIFA should be able to use fairly simple empirical and statistical analyses to determine the distance that would achieve any given scoring rate they desire. With both of these suggestions, however, my fear is that the net effect would be to reduce the overall scoring in the game.
Again, my overarching belief is that more goals, not fewer, will do the most to make each individual decision by the referee less pivotal. I acknowledge that fractional or multivalue scoring is probably too significant a change to the game (as would be altering the size of the goal), but scoring could be increased through relatively innocuous means, such as by loosening the offside rules even further.
I don’t think we’ll eliminate the last-minute penalty (see, e.g., Italy v. Australia) but there might be less sense of outrage and frustration if the score of the game at the time were 5-5 than if it were 0-0.
Sunstein on Supreme Court Visionaries:
Over at the New Republic, Cass Sunstein has an interesting essay on the current Supreme Court. (Link via Howard.) An excerpt:
The justices of the Supreme Court have historically included people who seemed, even during their service, to be genuine visionaries. But things are different today. Notwithstanding its unsurpassed level of competence, the Court lacks true visionaries--in a way that tells us a great deal about the nature of contemporary constitutional law.
At Balkinization, Marty Lederman makes the case that the U.S. Attorney firing scandal is really a faux "voter fraud" scandal. Brian Tamanaha's post on the rule of law (as opposed to rule by law) is worth reading too.
Today, in Valentine v. United States, a panel of the U.S. Court of Appeals for the Sixth Circuit ruled on Kenneth and Jimmy Ray Valentine's challenges to their convictions. The court unanimously rejected all of their ineffective assistance of counsel claims, with the exception of Jimmy Ray Valentine's claim that his trial counsel thwarted his attempt to accept a plea bargain.
The panel divided on the appellants' challenge to their convictions on Booker grounds, however, holding that Booker is not retroactive. Judge Cook wrote for herself and Judge Bunning (sitting by designation); Judge Martin dissented. As Judge Martin sees it, Booker should apply retroactively to those habeas petitioners whose convictions became final after Apprendi. Doug Berman has more here.
Editor's Note: The following AP story reveals a number of plot points exceedingly important to the show. If you'd rather not know, stop reading now. NEW YORK (AP) — The body count for "The Sopranos" had a major bump Sunday as this HBO mob drama races toward its own termination. (Spoiler alert: If you plan to watch the episode later and don't want to learn the newest casualty, stop reading now.) (Have you stopped reading yet? This is your final warning.)
One of the joys of soccer is its universality, both geographically and temporally. Throughout most of the world, players abide by the same rules, and aficionados savor the same trove of historic moments. This pair of connections allows fans from all over the world to recognize footballing genius when they see it and, like well-tutored lawyers, to situate such brilliance in its rightful historical genealogy.
So, for instance, when the 19-year-old Argentine Lionel Messi scored for Barcelona in a Spanish cup match against Getafe last month, spectators everywhere immediately appreciated both the goal’s majesty and its startling similarity to the one Maradona scored for Argentina against England in the World Cup 21 years ago. (England fans will also clarify that we’re talking about the legitimate Maradona goal as opposed to his “Hand of God” goal “scored” earlier in the same match.)
(A number of clips juxtaposing the two goals exist on YouTube, but I couldn’t resist choosing the version with the original play-by-play call from Maradona’s goal, which I translate to include such sentiments as “genius, genius, genius,” “I want to cry,” and “Holy God, long live football!”)
This pair of classic goals also demonstrates another aspect of soccer’s broad appeal: players from a wide range of statures can excel. Messi and Maradona are both around 5’7”. Peter Crouch is 6’7”. Thierry Henry is as thin as a baguette. Wayne Rooney is built like a couch.
So can this footballing universalism overcome American exceptionalism? I think so. Although professional soccer here will long struggle against the four dominant sports leagues, all those hordes of soccer moms must be chauffering around a massive young generation of soccer children. And America has produced very thoughtful writing on the game by such literati as Dave Eggers and Franklin Foer. Even America’s favourite economist Steven Levitt has studied the game.
In light of this well-established uniformity across time and space, we need to be careful about attempting to change the rules. But we needn’t be paralyzed, particularly when a sport so beloved is suffering. So here is an agenda for a discussion of related topics over the coming days:
Tomorrow, I intend to identify a few specific proposals for improving both the way in which the game is officiated and the rules by which it is played. Naturally, the ensuing discussion will be extremely contentious, as I expect reformers to focus inordinately on rules that address ways in which their favorite teams were most recently betrayed, while purists will deny the need for any such discussion with objections such as “we simply need to enforce the existing rules” and “some rules are new so we just need to give them time to work.” In sum, I’m looking forward to the classic legislative sausage factory.
On Wednesday, I thought we could turn to a broader, cultural discussion of why certain countries and regions play the game –- and perhaps game the play –- in certain styles. Here, I anticipate gross nationalistic caricatures that impugn large groups of people. Nevertheless, I hope the topic will still manage to be a fruitful one as well as a way to ask the larger question whether soccer would benefit from a greater degree of federalism than it enjoys under the current monotheism of FIFA.
On Thursday, I hope to expand the discussion of rulemaking and adjudication from soccer to additional areas, such as corporate law and securities regulation.
Finally, on Friday, we might wrap up with an exploration of further topics to explore within the beautiful game itself, such as the classic handball debate: I-Didn’t-Mean-To v. I-Didn’t-Get-An-Advantage.
I'm going over an edited draft, and I see the word "nondeadly" was changed to ... "undeadly." Somehow I think the revised version would bring up mental images that the author did not intend.
(Seriously, if "nondeadly" is inapt, and it may well be, "nonlethal" is the better alternative.)
Two Russian-born sisters are due to become assistant professors of finance in New York state later this year, even though they are only 19 and 21, university officials said Wednesday.
Angela Kniazeva and her younger sister Diana were due to take up their new positions in September at the University of Rochester, where half of their students will likely be older than them.
The pair, who already have masters degrees in international policy from Stanford University in California, were picking up their doctorates from New York University's Stern business school on Wednesday after five years of study....
The duo were home-schooled by their parents and earned the equivalent of their US high-school diploma at the ages of 10 and 11 before graduating college in Russia at the ages of 13 and 14....
UPDATE: Added the photo; thanks to reader Colin for the pointer. For more on the Kniazevas, see this article, from which I copied the picture (something I think is fair use under the circumstances, given that it has no effect on the value of the photograph -- if I hadn't copied the picture, I would have done a direct IMG SRC= to that site, which wouldn't have given the copyright owner any extra money but would have created untoward traffic for the NYU servers).
Fellow Russian immigrant Cathy Young has an excellent column on the controversy over Estonia's decision to move a monument to the Soviet "Liberators of Tallin" to a less prominent location in the nation's capital. The statue commemorated the Soviet army for "liberating" Estonia from the Germans in 1944. As Young points out, Estonians rightly regard the Soviet conquest and annexation of their country as a "brutal occupation" rather than as "liberation." She also notes that the current Russian government has cynically used this incident to try to whitewash the wrongs of communism and whip up nationalist sentiment in Russia. Russian President and former KGB Colonel Vladimir Putin, of course, claims that the collapse of communism was "the greatest geopolitical catastrophe of the century."
However, perhaps due to space constraints, Young does not mention the full scope of Soviet crimes in Estonia, and therefore does not fully explain why the Estonians viewed the presence of a monument to the Red Army in the center of their capital as "an insult." Along with Latvia, Lithuania, and eastern Poland, Estonia was annexed by the USSR in 1940 pursuant to the Nazi-Soviet Pact of August 1939, which carved up much of Eastern Europe between the USSR and the Nazis. During the period of Soviet rule in Estonia, some 30,000 Estonians were executed by the Soviet authorities or died in detention for "political offenses." 80,000 were imprisoned or deported to Gulag slave labor camps for such "crimes." Most - but not all - of these atrocities were carried out in the first few years of Soviet rule (1940-41, 1944-51). I have not counted the thousands of Estonians killed or imprisoned for taking part in armed resistance to Soviet rule, though in truth the Soviets had no right to kill these people either; I have also discounted thousands forcibly conscripted into the Soviet military, many of whom died in service; and 21,000 Baltic Germans forcibly deported to Germany in accordance with various Nazi-Soviet agreements. For a detailed breakdown of the data from which these figures are taken, see here.
To put these figures in perspective, it is important to note that the total population of Estonia in 1939 was only about 1.1 million. The 30,000 Estonians killed by the Soviet authorities for political reasons amount to almost 3 percent of the population. Some 10% of all Estonians were either killed or imprisoned. A comparable proportional population loss for the United States today would leave some 9 million dead and another 20 million imprisoned or deported out of our population of 300 million.
In and of itself, the controversy over the Tallin monument is unimportant. But it does provide a disturbing indication of Putin's efforts to whitewash the Soviet past. On the positive side of the ledger, it is a good opportunity to educate ourselves about at least a few of the crimes of communism - horrors that too many remain ignorant of even today.
UPDATE: To avoid confusion, I am not denying that the Soviet military had the right to engage in combat operations in Estonia in 1944, at a time when the country was occupied by the Germans (who had seized it from the Soviets in 1941). I do, however, deny that the USSR had the right to forcibly annex Estonia in 1940 or to reannex it in 1944. And it goes without saying that, even if the USSR had a right to annex the country, it did not have the right to kill and imprison thousands of Estonians because of their political views or (in many cases) membership in the wrong social "classes."
UPDATE #2: As a commenter points out, I accidentally miscounted the number of dead and imprisoned that today's US would have to suffer in order to equal the proportional losses inflicted on Estonia by the USSR. I have now changed the figures in the post to the correct numbers.
Schriro v. Landrigan:
It's hardly news when the Supreme Court reverses the 9th Circuit in an AEDPA case, as it did today in Schriro v. Landrigan. Still, it's interesting that this is a rare 5-4 opinion authored by Justice Thomas. The issue in the case was whether the district court had abused its discretion in denying Landrigan a hearing on whether his Sixth Amendment rights had been violated at trial, and specifically, whether Landrigan had properly waived his right to have his attorney put on mitigating evidence when he had blocked his attorney from doing so at trial. A majority of the Court concludes he did and should get no hearing; four Justices concludes that he didn't and merits one.
"It Is Unclear What Role, If Any, Religion Played in the [Planned] Attack [on Ft. Dix],"
reports the New York Times. Is is true that it's unclear whether religion played any role in the plan? The Times itself reported,
As the suspects were charged before a United States Magistrate Judge, Joel Schneider, prosecutors described a complicated operation that was at once ambitious and meandering, marked by deadly weapons and a certain lack of sophistication. The suspects alternately declared themselves eager to sacrifice their lives in the name of Allah and expressed ambivalence, worrying about getting arrested or deported for buying weapons or possessing a map of a military base.
But one of the suspects was a former sniper in Kosovo, the authorities said. And as they sought to amass the machine guns and rocket-propelled grenades they intended to use in the attack, and members of the cell trained with automatic weapons at a shooting range in Gouldsboro, Pa.
“When it comes to defending your religion, when someone is trying to attacks your religion, your way of life, then you go jihad,” Eljvir Duka, 23, who also went by the nickname Elvis, is quoted as saying in the complaint.
Likewise, the criminal complaint asserted, "CW-1 consensually recorded two meetings with ELJVIR DUKA. In summary, ELJVIR DUKA stated that they would need to receive a 'fatwa' before they could attack." "During this trip, ELJVIR DUKA and DRITAN DUKA discussed the need to train so that they could go overseas on 'jihad.'" (That's connected to the Eljvir Duka quote mentioned in the earlier article, but it highlights that the "jihad" discussion involved two of the conspirators.)
Are the earlier Times account and the criminal complaint mistaken? If they are accurate, then how can it be accurate to say that "it is unclear what role, if any, religion played in the [planned] attack"? I'm sure one can argue that it's unclear precisely what role religion played in the planned attack -- such estimates are always a judgment call -- but it does look like it played some role, no?
At law schools throughout the country, late spring is the season when professors put away lecture notes and turn from coaching their students to refereeing them. As we pick through stacks of exam answers, we serve as arbiters of all the wisdom that can be legibly scribbled into a bluebook in a few furious hours. Each student's grade rests to a certain extent on the decisions we make. But the outcome depends more than anything else on how the student performs. Surely?
To avoid that awkward question for a moment and to be honest, the final I'm most looking forward to these days is not the securities regulation one my students took two days ago but rather the Champions League match between Liverpool & AC Milan next Wednesday. Can we assume that contest will also depend most on how the players perform? Or is it fairer to predict that the referee will play the most prominent role?
Anyone who watched even a few minutes of last summer's World Cup probably has a firm opinion on that question. Casual spectators of the tournament may not have been lucky enough to spot one of the 2.3 goals per game. But they stood a good chance of seeing a referee hand out one of the 346 yellow cards (at a rate of 5.4 per match). And what they could not have missed were the chronic and mortifying instances of world-class athletes writhing about the grass as if possessed.
This clip includes some demonstrations of the behaviour and perhaps suggests its origin:
In Football Most Foul, I attempt to discern the cause of the deterioration of World Cup soccer into this deplorable state. My conclusion, which I'll explore further in coming posts, is that the rewards and punishments that referees have in their arsenal are too crude and too capable of determining the outcome of the game. The power of referees to work a game's bouleversement with one blow of the whistle — either by sending off a star player or awarding a penalty — places officials at the center of the game.
Players then have a strong incentive to attempt to influence referees, often by bearing false witness to the facts with dives and operatic petitions. This phenomenon appears to be exacerbated at the quadrennial World Cup, where teams play relatively few games for enormous stakes and where caution and calculation often trump free-flowing football. (In domestic leagues and even the Champions League, which involve many more matches, we still see wonderful games like Manchester United's 7-1 demolition of Roma last month.)
My proposals for addressing the situation, which I will also discuss further in future posts, focus primarily on ways of diluting and refining referees' power. For a start, more goals in the game would decrease the relative impact of referees' decisions. And if yellow cards are not sufficient deterrents while red cards effectively defang a team (in the World Cup, only one country scored after receiving a red card and that goal was, naturally, from a penalty), perhaps we need additional punishments of a severity somewhere between the two. Similarly, if penalties have a disproportionate impact on games and, indeed, may determine the outcome (as they did in six World Cup matches), perhaps we need a more finely tuned remedy.
In the coming days, I look forward to exploring this relationship between legislation and adjudication as well as the question whether too much law can ruin a game.
Because soccer is one of those happy topics on which many people will have an opinion, I suspect our comments will soon feature debates about whether Cruyff's Dutch teams of the 70s could beat Zidane's French ones at their zenith. In my next post, I'll propose an agenda for the week to organize our discussion. In the meantime, I'll leave you with this question: what team is being parodied in the clip above?
I'm delighted to say that William Birdthistle, who teaches at Chicago-Kent College of Law, will be joining us this week. His main fields are business organizations and securities regulation, but his topic this week will be sports and law, specifically soccer and the internal law and law enforcement of soccer.
Prof. Birdthistitle is Irish and, before coming to America for college, spent much of his life growing up in Libya (8 years) and Malaysia (9 years), so he spent a good deal of time immersed in soccer cultures. This led him to think about how the World Cup, soccer more generally, and sports still more generally are affected by how various rules are enforced within each sport.
He published his early thoughts about the World Cup in an op-ed in the Chicago Tribune right after the tournament and, to my surprise, found that many legal academics had a great deal to say about how the game could be improved. So, after a good number of conversations with disgruntled viewers, he wrote the longer article, Football Most Foul, which I read and which prompted me to invite him. The article is part of a growing movement to think about law in contexts other than government-enforced rules -- of recognizing that rules (of various degrees of precision), rulemaking, and rule enforcement are pervasive aspects of human endeavor that influence human behavior in often unintended ways.
In the paper, Prof. Birdthistle starts by arguing that the 2006 FIFA World Cup was a disappointing display of soccer, comprised primarily of forgettable athletic contests that turned most critically on the administration of justice. Referees, more than athletes, emerged as the central protagonists in each game by providing the most dramatic plot twist -– either by handing out red cards, which they did at a record pace, or awarding penalty kicks, which provided the winning goal in almost ten percent of the tournament's games. For much of the viewing public, the footballers’ performances were even more deplorable, as players constantly flopped to the ground at minor or nonexistent contact and thrashed about in apparent agony.
Of course, the power of the referees and the acting of the players are closely intertwined, as any system of human order that bestows sweeping authority on its magistrates invites perjury. The article explores the cynical state of World Cup soccer and examine a number of proposals to reduce the game-changing power of referees and the melodramatic chicanery it inspires. If the array of referees’ punishments and rewards can be adjusted, he reasons, we might be able to increase players’ incentives to play a more beautiful game in future World Cup tournaments.
Video of Nicolas Sarkozy in 1981: the leader of Youth for Chirac:
Thanks to the educational French station TV 5, internauts can watch a 1981 TV news story on the Youth for Chirac movement ("the Young Chiracians"), including interviews with a very youthful Nicolas Sarkozy. Chirac himself is shown briefly, at the end. He too looks very different from the man we know today.
Today's Washington Postprofiles Justice Anthony Kennedy, and his early emergence (as predicted) as the swing vote on the Supreme Court.
Most of the court's decisions are not ideological — there are more unanimous decisions than ones settled by a single vote. And not all of the 5 to 4 decisions pit the ideological conservatives — Roberts, Antonin Scalia, Clarence Thomas and O'Connor's replacement, Samuel A. Alito Jr. — against the more liberal justices — Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens — with Kennedy waiting to break the tie.
But many do. On the death penalty cases that have come before the court this year, for instance, the conservatives have consistently voted to uphold a state's imposition of capital punishment, while the liberals have sided with inmate complaints that their rights were violated. . . .
The 5 to 4 decisions totaled 11 in the 2005-06 term, with Kennedy in the majority in eight of them. There already have been that many this year, indicating a divided court and Kennedy's role as the deciding vote. His two dissents — involving sentencing rules in California and garbage-hauling in New York — came in cases in which ideological divides played no role.
UPDATE: Tom Goldstein has more on Justice Kennedy's emerging role on the Roberts court here.
I have not listened to much Five for Fighting other than what gets played on the radio, but I found this profile of John Ondrasik, who is Five for Fighting, by John Miller on NRO to be quite interesting. I doubt there are many contemporary songwriters who have written lyrics based upon a lunch with Victor Davis Hanson, nor many band names inspired by hockey rules. ("Five for fighting" is a major penalty in hockey.) He also writes provocative and interesting lyrics. Here's a taste of "Freedom Never Cries" off of the new album:
I saw a man on the TV
In a mask with a gun
A man on the TV
He had a ten-year old son
I saw a man on the TV
His son had a gun
He says that he's coming for me
I never loved the soldier until there was a war
Or thought about tomorrow
'til my baby hit the floor
I only talk to God when somebody's about to die
I Never cherished Freedom
