The Volokh Conspiracy

How Student Editors Select Law Review Articles for Publication: Here's an interesting study on the question, based on a survey of articles editors. A few blogs gave us a preview of the results last year, but now you can read the full draft.

Political Ignorance and Muslim perceptions of 9/11 and the War on Terror:

Both the blogosphere and the press have noted the important recent Pew survey of American Muslim opinion. Ali Eteraz makes some good points about it in this post. On the positive side, the survey provides extensive evidence that most American Muslims are assimilated, opposed to Muslim religious extremism, and generally happy with their lives in the United States. In these respects, they differ greatly from their co-religionists in most majority-Muslim countries and in Western Europe.

However, there are some skunks at this otherwise wonderful garden party. To me, the most worrisome is not the widely cited finding that 13% of American Muslims support suicide bombing in at least "rare" instances. It is the fact that only 40 percent agree that "groups of Arabs" committed the 9/11 attacks, while 28% rejected this proposition, and 32% refused to give an opinion. Public opinion researchers have long recognized that survey respondents sometimes conceal views that are considered socially unacceptable. At least some of the 32% who said that they had no opinion in fact agree with the 28% who believe that someone other than Arab terrorists committed the 9/11 atrocities. Ignorance on this point is more than a detail. If you believe that 9/11 wasn't really perpetrated by Arab Muslim terrorists, then you are unlikely to support any efforts to retaliate against the perpetrators and track them down. Any such efforts will seem like unjustified persecution of Muslims. It is not, surprising, therefore, that a 48% plurality of respondents to the survey oppose the war in Afghanistan, as compared to 35% who support it (despite divisions over the war in Iraq, polls show that non-Muslim Americans overwhelmingly support the war in Afghanistan).

This kind of ignorance is far more prevalent among Muslims in other countries than in the US. As I note in this article(pg. 275), surveys taken in majority Muslim countries have a much higher rate of respondents who reject the proposition that the 9/11 attacks were perpetrated by groups of Arabs. That was the answer given by 89% of Kuwaitis, 86% of Pakistanis, and 58% of Lebanese, among others. Many Muslims in Western Europe hold similar views. Pew's 2005 international survey of Muslim opinion (pg. 5) found that 56 percent of British Muslims, 46 percent of French Muslims, and 44 percent of Spanish Muslims also believe that "groups of Arabs" did not carry out the 9/11 attacks.

As I have argued in much of my academic work, ordinary citizens have strong incentives to be "rationally ignorant" about politics. Because there is very little chance that any one vote will be decisive to the outcome of an election, there is little incentive to invest time and energy in acquiring political information. Muslims are far from unique in this regard. But it is also rational for citizens to do a poor job of analyzing the information they do have, a point I made in the article linked above and that Bryan Caplan drives home in his excellent recent book. Because individual citizens do not pay any cost for clinging to false beliefs about politics, they are likely to embrace emotionally satisfying falsehoods rather than search assiduously for the truth. Bryan calls this "rational irrationality."

At least in the case of Muslims living in the West, I suspect that rational irrationality is more responsible for ignorance about 9/11 than pure rational ignorance. Even the most ignorant person living in the West has likely been exposed to numerous news reports identifying Al Qaeda as the perpetrators of 9/11. Meanwhile, there is no evidence supporting the proposition that any other group was responsible. Muslims who persist in rejecting the evidence probably do so because they are unwilling to believe that their own coreligionists perpetrated such a horrendous atrocity, and are unwilling to give objective consideration to evidence that goes against their preconceptions.

Again, Muslims are far from unique in refusing to give a fair shake to evidence that undercuts their political or religious views. Numerous studies show that this is a trait that cuts across ethnic, religious, and ideological lines (I cite some in my article linked above). Muslims are not even unique in their reluctance to believe that members of their own group could be responsible for terrible atrocities. For decades, the majority of white Americans refused to believe that Jim Crow segregation and other policies instituted by whites were responsible for the plight of African-Americans.

Nonetheless, Muslim ignorance about 9/11 is an important and underrated problem, one that makes it far more difficult to attract Muslim support for the War on Terror and for efforts to curb radical Islamism. Unfortunately, there may not be any easy solution. Still, we should start by recognizing the scope of the problem and the degree to which it exacerbates anti-Americanism among Muslims.

UPDATE: The link to Ali Eteraz's post on the Pew Survey seems to be dead. I am leaving it up in case the people at Huffington Post (where Etaraz blogs) restore it.

UPDATE #2: Thanks to commenter "Serenity Now," we now have a working link to the Eteraz post.

UPDATE #3: Some commenters on this post have been trying to downplay the significance of the data I cite by pointing out that various other groups are also ignorant about important issues. A few of the analogies they make seem apt, while others are much less so. In any case, I don't deny (and in fact emphasized in the post) that rational ignorance and irrationality about politics are common among many groups. The fact that other groups are ignorant about many issues doesn't mean that Muslim ignorance about 9/11 isn't a serious problem.

Related Posts (on one page):

Whitman on Libertarian Paternalism:
Power to the Experts! - A Solution to the Problem of Political Ignorance?
Political Ignorance and Libertarian Paternalism:
Political Ignorance and Muslim perceptions of 9/11 and the War on Terror:

A Dubious Reunion for the Russian Orthodox Church:

In this Wall Street Journal op ed, historian Nadia Kizenko analyzes the reunion between the Russian Orthodox Church Abroad and its parent church in Russia. As Kizenko notes, the Church Abroad broke with the Russian church in 1920 because the latter had fallen under the control of the brutal Communist government that, among other things, suppressed religious freedom. Now, the Church Abroad has again accepted the authority of the Patriarch of Moscow, the chief prelate of the Russian Orthodox Church, including giving the Russian church the right to appoint bishops and control church property.

Not being Russian Orthodox, it isn't my place to comment on the purely religious aspects of the reunion. However, like Kizenko, I am disappointed by the Church Abroad's willingness to accept the deal despite the fact that the Russian church hierarchy continues to embrace its long history of collaboration with the Russia's communist rulers, and is now supporting the increasingly authoritarian government of President Vladimir Putin, a former KGB colonel who claims that the collapse of communism was "the greatest geopolitical catastrophe of the century." While some individual Orthodox priests and laypeople bravely resisted the communists, the church hierarchy soon came to be controlled by communist collaborators, as Kizenko explains in her article.

Russian Orthodox believers in the US and elsewhere in the West will have to decide for themselves whether they will accept the merger. Perhaps, as in 1920, the time has come to once again establish a new church unsullied by collaboration with communists and authoritarians.

Related Posts (on one page):

A Dubious Reunion for the Russian Orthodox Church:
Estonia and the Legacy of Soviet "Liberation":
A May Day Proposal:

Duke Conservative Union Comments on a Real Social Disaster:

In a straightforward send-up of the original "Gang of 88" (now 87) Duke professors, the Duke Conservative Union has published an advertisement asking for an apology from those who signed the original ad.

Joe Malchow has the ad here.

What is Montessori?

Last Saturday, Slate's Emily Bazelon, the mother of a child in an Montessori pre-school wrote an article titled "The Cult of the Pink Tower: Montessori turns 100—what the hell is it?" She stated that "In many ways, Montessori education remains a cult: No one outside the fold (and lots of families inside it) really knows what exactly it is." So I will now reveal the secret; there's much to explain, in terms of pedagogical technique, but here's the deep philosophy of Montessori education. Montessori is not for everyone, but I believe that the world would be a much better and kinder place if every family had the opportunity to choose a Montessori school....

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Montessori is a superb method for children to achieve a high degree of proficiency at many important academic skills. But Montessori is also something much more profound than a high-quality type of learning.

If you talked with someone who jogged several miles every day, and you asked her "Why do you spend all that time on road work?" it's possible that she might answer "Because it helps me run faster over longer distances." It’s true that the direct benefit of running a lot is that the runner gets better and better at running. But it's more likely that the runner might answer something like this: "Running strengthens my heart, my lungs, my legs and the rest of my body. Running builds concentration and focus that stay with me even when I'm not running. Running clears my head, and so when I'm running, I sometimes have insights into lots of different things in my life. Running helps me get the rest of my life under control." Notably, the main direct benefit of running--building speed and stamina for running--wasn't even mentioned.

All these same points can be made about Montessori education. Yes, Montessori does help children grow much more proficient at reading, writing, research, and mathematics. (And these skills have a great deal more practical application in modern society than does the ability to run fast.)

Yet the most important benefits of Montessori education lie beyond the direct academic skills that are acquired by mastering the Montessori materials. As with running, the academic skill-building is what the children actually do, but what they achieve is much more than just academic enrichment.

Responsibility, Self-Control, and Independence

Although most students need to do language and math work every day, students are generally free to choose the works that interest them, and to stay with them as long as they want. ("Works" can include Montessori manipulatives, such as "the pink tower" of blocks, or written work such as math problems or writing in a science journal, or other projects.) The major part of the day consists of long blocks of time in which children have the freedom to totally engross themselves in activities, with deep concentration. These large blocks of time are one of the ways in which Montessori differs from most other educational approaches.

One of the important premises of Montessori is that children have a natural love for learning. When given the opportunity to engage in meaningful, interesting, self-directed work, children show that they can achieve high levels of focus. It is relatively rare for a Jarrow classroom to become disorderly or excessively loud, or to need repeated orders from the teacher for quiet.

The quiet (not silence, since conversation is perfectly legitimate while work is being done) and the order do not come from external control imposed by the teacher. They come as a natural result of the children exploring a fascinating environment of learning opportunities. Interacting with others, while not disturbing the concentration of other parties, is one of the many social skills taught by Montessori schools, and research suggests that Montessori children tend to develop greater social competence. (M.M. Boehnlein, "Montessori Research," The NAMTA Journal 13(3), 1988.)

The Teacher is not the Center of Attention

Another way in which Montessori cultivates responsibility, self-control, and independence is that teachers take the focus off themselves. The point is not for the students to passively absorb knowledge from the teacher, but for the students to teach themselves, with the teacher providing guidance when appropriate. A student works for the satisfaction of learning, not for the teacher's praise. "This helps develop his will and helps him be present to the work for its own sake," explains one Montessori scholar.

After introducing a material, teachers generally leave the child to work it our herself, intervening only when the child needs guidance to move on to a higher level.

"Help the Child to Help Himself"

Maria Montessori explained that her method aimed to help the child "to act, will, and think for himself," and so many of the Montessori materials foster independence. The "Practical Life" tools in the Toddler and Primary classroom help children build autonomy in their daily lives--as by learning how to use buttons or zippers. Other Practical Life tools--such as pitchers of water to be poured back and forth--help the child learn to use her body as she directs. During the first months of school, Toddlers show their parents the "up and over" way to put on a jacket—so that a 21-month-old can put on a jacket by herself, rather than needing someone to hold it for her. "Help the child to help himself" is a core element of Montessori.

More generally, the curriculum always keeps practical application in mind. For example, Upper Elementary (grades 4-6) math work with percentages frequently uses percentage skills to solve real-life problems--such as calculating discounts on a product, or figuring the rate of return on an investment.

The Montessori materials also foster independence through the principle of "control of error." That is, the materials allow the child to discover whether he has made a mistake, rather than needing to go to the teacher to see if the work is done properly. For example, the "cylinder block," used in the Primary (ages 3-6) classrooms, is a block of wood with ten cylinders cut out from it. Each cylinder has a knob on the top. The cylinders are all the same height, while their diameter increases from narrow to fat. The object of the work is to learn about size relationships, by putting each cylinder into its proper hole, increasing order of size. If a child puts a thin cylinder in a wide hole, by the end of the work he will have a fat cylinder left over, which doesn't fit in the remaining hole. Thus, the child can see that he has made a mistake, and use his intelligence to discover the proper places for each cylinder. He does not need to go to the teacher to ask for assistance.

Responsibility for One's Education

In the elementary grades, students conduct long-term research and writing projects. Not only do they take responsibility for seeing a major task through to its completion, they also learn how to uncover information for themselves, rather than having it fed to them.

When Montessori children move on to other schools, their new teachers usually applaud the ability of Montessori children to complete assignments, including long-term projects, without monitoring, and to take responsibility for their learning--whether by remembering to bring pencils to class every day, or by getting themselves to the library when they need to conduct research.

Helping and Teaching Others

To foster the development of the child's will does not mean that the child becomes willful. To promote independence is not to promote isolation. To be inner-directed is not to be self-indulgent. To the contrary, responsibility, self-control, and independence lay the foundation for a wide variety of cooperative interaction and friendship. A pair of four-year-old boys who have developed some self-control can play together longer and more happily than a pair of boys whose only controls are externally imposed. An Upper Elementary classroom filled with students who can concentrate and who can persevere on long-term projects can decide to perform Romeo and Juliet.

All students are also teachers. All classrooms are multi-age, so that, for example, Lower Elementary includes first, second, and third graders. The older children often help the younger ones learn how to do works, and also act as role models. At some schools, older students (e.g., Upper Elementary) may spend time each week reading to one or a few younger students.

So while there is nothing in Montessori formally called "character education," the whole Montessori experience is integrated to cultivate responsible, self-reliant, caring people.

Respect

The true heart of Montessori is profound respect for the fundamental dignity of every individual. While Montessori is used in a wide variety of secular and religious schools, Dr. Montessori's philosophy is very profoundly influenced by Catholic teaching of "the inherent dignity of the human person."

Again, the classroom materials play an important role. For example, works are usually done on a small cloth mat laid out on the floor; the mat sets the boundaries of the work, and guides the other children in moving so as not to disturb others at work.

This is one of the ways that Montessori education teaches respect for the environment. This includes respect for the classroom environment--putting works away properly so that next person can use them, and working with others in constructive ways. It also includes respect for the macro environment, as children learn about ways to care constructively for the global and community environment--and to respect individual differences, and the different choices that individuals make.

The attitude of respect toward children enabled Maria Montessori to develop the insight that children learn and think very differently from adults. Adults may start their learning with abstraction--as when college students listen to a chemistry professor lecture about principles of chemistry, even when the students have never observed the chemical reaction that is being described. Doctor Montessori (the first woman to graduate from an Italian medical school) began looking at education from the child's point of view, and recognized that children do not learn the same way that adults do. She also saw that adults often greatly underestimate the intellectual capacity of children, because the children are not able to express themselves fully in adult-style communication.

Respect for the child, therefore, opened the way for the insight that children learn best from sensory approaches to knowledge before attempting abstraction. The first step in learning to read is to trace one's fingers over sandpaper cutouts of the letters of the alphabet. "From hands to mind" is the practical foundation of the Montessori Method.

"Respect" in Montessori is not a code word for hierarchy, in the sense of "students must respect the teacher." Certainly students must respect the teacher. And the teacher must respect the students. And the students must respect each other. Of course since nobody is perfect, nobody at in a Montessori school achieves this high standard of respect every single moment during the school year.

Respect is why students are allowed to choose their works, why they are guided to independence, and why they are motivated by their own joy of learning rather than the need for external validation.

Respect does not mean that everybody is supposed to pretend to like everybody else all the time. Respect does mean that conflicts are to be resolved with consideration for the dignity of everyone involved. Respect is the foundation for access to the highest possibilities of learning.

Tim Seldin, president of the Montessori Foundation, explains that "Montessori is a way of life. It is a philosophy about how human beings ought to live their lives and treat one another. It is an attitude of respect for each human being, no matter how young or how old. It is a sense of partnership, rather than power and authority." ("Montessori in the Home," Tomorrow's Child, Spring 2000, p. 5.)

Once one enters into an attitude of respect for the child, then one can begin to understand how much teachers and parents (and also the students in their roles as teachers for other students) have to learn from the child. As Kathy O'Brien, the head of a Montessori school in Maryland writes:

Dr. Montessori believes that the child has lost much of his natural grace and charm because often his only value is seen in that some day he will be an adult. Montessori says the child has its own value, "the child and the adult are in fact two different and separate parts of humanity which should interpenetrate and work together in the harmony of mutual aid...having reciprocal influence." It is easy for us to accept that we adults aid the child, but the child is also an aid to the adult and should be a formative influence on the adult world. A child can change the hearts of adults. In the presence of a child hardness disappears. Dr. Montessori says: "The child can annihilate selfishness and awaken the spirit of sacrifice," tenderness and affectionate care. "The love which then begins is like a revelation of the moral greatness of which man is capable when his child obliges him to feel as a parent. In this way does God move and form the adult through the child."

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Killer's Last Words: From the Arizona Republic:

  Robert Comer died Tuesday with a steady gaze and a defiant smile on his face, the first person to be executed in Arizona since November 2000.
  He was strapped to a gurney and covered up to his neck with a sheet.
  There was no sight of the catheter into his groin that made the lethal injection possible, no sight of the executioners on the other side of a wall.
  But Comer was smiling; he had petitioned the federal courts to stop his appeals and hasten his own execution. He was in control of his destiny.
  Comer brought a picture of his daughter with him to the death chamber and used his last words to say, "Go, Raiders."

Sentencing Law Case Note: Over at Sentencing Law & Policy, Doug Berman points out this Harvard Law Review casenote on Eighth Amendment law; according to Doug, it is "notable" and "merits a full read." I suspect many readers will agree, although perhaps for different reasons than Doug assumes. If I follow the note correctly, it argues that lower court judges should "refuse to enforce unjust laws," should ignore things like "laws" and "precedent" in favor of "spark[ing] a movement" of "judicial civil disobedience" against the Supreme Court and the elected branches of government. According to the author, the behavior of lower court judges will then cause "a subterranean shifting of the tectonic plates of our attitudes and culture." Unfortunately, the author does not explain how the revolution would work after the Supreme Court overrules the novel decisions and Congress impeaches and removes the judges who wrote them.

Pragmatism and Fourth Amendment Law: My co-bloggers' posts about the Fourth Amendment test for when a person is "seized" brings up some really interesting questions about the nature of Fourth Amendment law and criminal procedure more generally. In particular, I think provides a helpful demonstration of the pragmatic nature of Fourth Amendment doctrine.

  As my co-bloggers point out, Fourth Amendment doctrine teaches that a person is "seized" by a police officer when a reasonable person in his situation wouldn't feel free to leave. But the courts always apply this test in a very weird way: the reasonable person is assumed to be innocent person who has no fear or even anxiety about interacting with the police. As a result, the courts say someone is not "seized" even when we all know that a reasonable person in their situation would not feel free to leave. In the cases, a reasonable person would only feel they can't leave if they are stopped, or the officer tells them they can't go, the officer threatens to use force, or something like that. What gives?

  I think the explanation for the odd test is consequentialist, and reveals a lot about the pragmatic nature of criminal procedure law. The background legal rule is that the police can only conduct a "seizure" with some kind of cause, such as reasonable suspicion or probable cause: if the police seize something without cause, the fruits of the seizure are suppressed. With that background test in mind, let's try to come up with a test for when a person is "seized."

  A textualist approach might be to say that a person is seized when he is physically grabbed, such as by arresting him. But is you take that narrow definition, you run into a problem: it means that the police can do anything to stop someone's movement short of actually grabbing them without triggering any legal oversight. No seizure would occur, so the police could do it whenever they wanted. That gives the police too much power, right? In particular, it doesn't account for all the times that a person is functionally stopped by a reasonable fear of police action: If officer A points a gun at suspect B and yells "freeze!," a person might reasonably feel like they are "grabbed" even though no force has been used against them. Does that mean they weren't actually "seized" at that point? Seems weird to say so.

  So what other test could be used other than an "actual grabbing" rule? Well, you could look at things from the standpoint of a reasonable person, and ask whether that reasonable person would feel free to leave. That covers the "freeze" case, but it also presents a problem: by its terms, it probably covers nearly all police-citizen interactions. Most people feel like they have to do what a police officer says; most feel that if a police officer walks up to them and starts asking them questions, they're not allowed to just walk away. Sure, it would be crystal clear if the officer pulled out his gun and yelled "freeze!", but for most people the mere fact that the person is a uniformed officer is enough to get them to feel they need to comply.

  Why is that a problem? It's a problem because it would make it unconstitutional for the police to just walk up to people on the street and start asking them questions. Most people feel they can't leave in such situations, so they would be constitutionally "seized" without a warrant; asking questions of someone without at least reasonable suspicion would be an unlawful seizure. But that's a bad rule, because we want the police to be able to ask questions to try to solve crimes; it's an essential technique, and although you might want to limit it (as in Miranda) you wouldn't want to end it outright.

  So what to do? One approach would be to articulate a very specific test that encompasses the desired results. For example, you could say that a person is seized when an officer "physically impedes the person's motion, shows a weapon or otherwise threatens force, or verbally indicates to an individual that they cannot leave." In other words, you could actually catalog the set of circumstances in which you think Constitutional protection should apply, and cause should be required. But this gets messy pretty quickly. The facts of cases are endless diverse, and the list of circumstances would have to be really long to be remotely complete. It's not so easy to write that out as a constitutional rule.

  Again, what to do? The Supreme Court's solution to this problem was to take the simplicity of the "reasonable person" approach and tweak it to get the desired results. Formally speaking, the the test is whether a reasonable person would feel free to leave. But then the Justices invented an odd sort of imaginary "reasonable person." Formally speaking, the Court's way of getting to this result is to say that "the reasonable person test presupposes an innocent person," Florida v. Bostick, 501 U.S. 429 (1991), but of course the test does more than that: This imaginary reasonable person generally feels free to leave unless the police show force, tell him to leave, or physically get in his way. Who is this reasonable person? Cynically speaking — although not inaccurately, I think — he's the person who needed to be imagined to create a useful set of legal rules governing police conduct.

  These sort of dynamics explain why just as there are no atheists in foxholes, there are no constitutional theorists in criminal procedure.** For the most part, the doctrine is not arising out of text, or history, or natural law, or First Principles of Immutable Justice. Rather, it's arising out of a need to impose a set of reasonable limits on police practices given a few basic guideposts of doctrine and the common facts of police investigations. This dynamic occasionally leads to doctrinal tests that sound like they should work one way but actually work quite differently in practice.

  ** To be clear, there are in fact both atheists in foxholes and theorists in criminal procedure. My point is that experience with the law in this area tends to make it hard to be a theorist, not that it's impossible.

Related Posts (on one page):

Should Policies Nudge People To Make Certain Choices? The Wall Street Journal's ECONOBLOG has a very interesting debate between economists Mario Rizzo (NYU) and Richard Thaler (Chicago) on the following question:

Driven by research in behavioral economics that suggests people don't always act in their own best interests, some economists are arguing for new policies that would challenge traditional "hard" tools for changing behavior, such as sin taxes and outright bans. Such policies would often rely on default options that nudge, steer and coax — but don't force — individuals to make certain choices. Is this sensible governance?

The debate concerns the merits of so-called "libertarian paternalism" promoted by Thaler and Cass Sunstein. In the exchange, Mario questions the merits of this approach as well as whether it is fair to characterize it as "libertarian." You can comment on the WSJ website here.

Censorship:

Greg Lukianoff, the President of FIRE, offers an intriguing hypothesis about the tedious consistency of censorship tactics through the ages:

I have always found it fascinating that colleges and universities--which tend to believe themselves to be centers of perfect open-mindedness and progressive thought--so often end up echoing the censors of bygone eras. As we note in FIRE's Guide to Free Speech on Campus, for example, administrators' justifications for punishing politically incorrect, ideologically incompatible, or simply inconvenient speech at times echo the rationale of southern slave owners in the early 19th century who wished to ban abolitionist speech because it "inflicted emotional injury" on slave owners. As we often have to point out, while politeness is a virtue, it is of minuscule importance when compared with robust debate and discussion.

The pattern that strikes me the most, however, is the tendency of administrators to sound like the censors of the Victorian era--morally infallible, plugged into absolute truths and engaged in saving the country's soul from incivility or impropriety.

***

[T]he idea that education is about inculcating "correct" beliefs to an ignorant public smacks of late 19th century imperiousness. It is true that the similarity between the narrow-minded Victorian censors and those of the present day campus may only exist because authoritarianism manifests in a finite number of forms--the rationales for censorship and repression are predictable, generally uncreative, and tend to repeat through history with the monotony of a terrible skipping record. The results are, also, sadly predictable: crushing dissent squelches innovation and utterly impedes the noble search for truth and greater understanding.

Greg's full essay is available here.

Some unconservative effects of opposing gay marriage:

In a new column, I argue that anti-gay marriage policy is pushing gay families to seek alternative protection in family law though untraditional means. These work-arounds, however, are also available to straight couples and may undermine marriage and traditional parental presumptions and family forms in ways that gay marriage would not. Here are are four examples from the column:

Second-parent adoptions. When married couples adopt, both become the legal parents of the child. Traditionally, however, only one member of an unmarried couple could adopt a child. Among other things, this rule has encouraged the couple to get married because it would provide the child with two parents.

Gay couples, who can’t marry, must find other ways to protect their children. Starting in the early 1980s, the National Center for Lesbian Rights pioneered the concept of second-parent adoptions by which two unmarried people could both be a child’s legal parents. Over time, the concept has been embraced by courts or by statute in about half the states.

Here’s the kicker. Second-parent adoptions have also become available to unmarried heterosexual couples. Thus, a legal reform intended to compensate for the unavailability of same-sex marriage has been seized by those who can marry but choose not to. It reduces the incentive to marry and means more children will be raised out-of-wedlock.

Triple parenting. Another unconservative consequence of the ban on gay marriage is illustrated by a recent case in Pennsylvania. The case involved a lesbian couple who enlisted a male friend to act as a sperm donor, resulting in the births of two children to one of the women. When the lesbian couple split, the state courts decided that the women should share custody and that the sperm donor should be allowed monthly visits and be ordered to pay child support. Thus, the children would in effect have three parents shuttling them back and forth among three different homes.

Marriage exists in part to clarify legal responsibility for children. If gay couples could marry, as straight couples using sperm donors or surrogate mothers can, they would be more likely to seek exclusive parental rights at the outset (as married straight couples do) because they could adopt as a couple and because of the additional security marriage would give their relationship and their children. Sperm donors and surrogate mothers, for their part, would be more likely to surrender any parental rights since they would be reassured the child would live in a two-parent family fully protected in the law.

Triple-parenting arrangements don’t lead to polygamy, as some conservatives claim. Lesbian mothers aren’t usually keen on marrying sperm donors, after all. But these arrangements do undermine the traditional idea that, when it comes to children, two are parents and more is a crowd.

While gay marriage alone won't eliminate the many scenarios in which multiple adults vie for children, just as marriage hasn't eliminated them for straight couples, it would make them somewhat rarer. The absence of gay marriage is opening the door wider to the very trends conservatives believe are destabilizing to families.

Parental visitation. In Minnesota, the state supreme court recently upheld an order allowing a woman parent-like visitation with the two adopted children she raised with her lesbian partner of 22 years. Because the women weren’t married, only one of them formally adopted the kids. When they split, the legal parent barred her ex from seeing them. If they’d been married, both parents would have been entitled to see the children.

The non-parent sued to get some access to the children based on a Minnesota statute allowing a person "reasonable" visitation if the person lived with the children at least two years. The court ordered that the non-parent be given the right to visit the children on a schedule exactly like what a divorced parent would get (weekends, alternate holidays, long summer vacations) — all without having to pay child support.

The Minnesota decision was correct under state law and was perfectly justified given that the lesbian couple could not marry and that both women raised the children. But it does set a precedent by which an unmarried heterosexual partner could likewise claim full parental visitation rights without accompanying support obligations. Another incentive to marry is eroded.

Adult-adult adoptions. Not all states set age restrictions on adoptions, so in theory an adult could adopt another adult as his “child.” Barred from marriage, that is exactly what some gay couples have done. One partner adopts the other, giving the two adults some degree of the legal protection marriage would have given — like the rights to visit each other in the hospital, to inherit property without taxation, and so on. This is a perversion of traditional adoption law, to say the least, made attractive only because the partners can’t marry. . . .

Many conservatives may conclude in the end that the collateral damage being done to stability and tradition is worth it to keep gay couples from marrying. But before family policy is further inundated, they should at least weigh the unconservative consequences.

Gay marriage would not end all of this, but it would reduce the need to create and seek out these alternatives. Please read the whole column before commenting.

Three Federalisms: Three Federalisms, a new very short (10 pages) piece of mine is now up on SSRN. It was prepared for a Symposium on Checks and Balances Today: The Reality of Separation of Powers, held at Loyola University Chicago School of Law in March. Download it here. Here is the abstract:

Debates over the importance of “federalism” are often obscured by the fact that there are not one, but three distinct versions of constitutional federalism that have arisen since the Founding: Enumerated Powers Federalism in the Founding era, Fundamental Rights Federalism in the Reconstruction era, and Affirmative State Sovereignty Federalism in the post-New Deal era. In this very short essay, my objective is to reduce confusion about federalism by defining and identifying the origin of each of these different conceptions of federalism. I also suggest that, while Fundamental Rights Federalism significantly qualified Enumerated Powers Federalism, it was not until the New Deal’s expansion of federal power that Enumerated Powers Federalism was eviscerated altogether. To preserve some semblance of state discretionary power in the post-New Deal era, the Rehnquist Court developed an ahistorical Affirmative State Sovereignty Federalism that was both under- and over-inclusive of the role of federalism that is warranted by the original meaning of the Constitution as amended.

The Future of Statutory Interpretation.

Next year, Harvard Law School is going to introduce a new mandatory first-year course on Legislation and Regulation. I think this move is quite salutary. Most of the law that governs us is legislative and regulatory rather than judge-made, and it is useful to introduce this reality to law students early in their education.

But it raises the question: What exactly are we going to teach them that justifies having this as a separate course? Statutory interpretation scholarship has recently been largely fixated on a battle between those who favor formalism and those who favor judicial judgment. And it is not clear a separate course is well-suited to teaching either side of that prevailing debate.

Formalism, it seems to me, suffers from many of the problems of doctrinalism. I am not, to be clear, one of those who thinks statutory language is always ambiguous and has no inherent meaning. Often it does have an obvious meaning. But it is not at all clear why legal training should help us in recognizing the obvious. And if formalism really claims that all statutory interpretations have a obvious answer that can be divined by sheer linguistic analysis, then it is just wrong. One could try to rely on canons of interpretation to resolve the nonobvious cases. But it well known that many canons have seemingly conflicting counter-canons. Even when that is not an issue, there are no clear rules for which canons to apply first, and the order of operation often dictates the result.

Judicial judgment approaches generally emphasize either how judges can best further general statutory purposes or engage in interstitial judicial lawmaking. But both variants are better analyzed if embedded within particular substantive courses, where the statutes have a particular purpose, and where one can focus on how well interstitial judicial lawmaking achieves desirable policy results in that particular area. Indeed, leading legislation books that took this approach, like the Eskridge and Frickey classic, focused on one area of law, like civil rights, in a way that made them coherent, but at the cost of making it more a book on civil rights law than on legislation generally.

We need a third approach, and in a shameless act of self-promotion, let me suggest my own approach, developed in my book Statutory Default Rules (forthcoming with Harvard University Press). As I argue in that book, we can admit that formalism often does not resolve the meaning of a statute without leaping to the conclusion that we must leave such issues to judicial judgment. Instead, we can have a system of statutory default rules that, when statutory language is unclear, is designed to constrain judges to maximize political satisfaction.

It turns out this approach goes a long way to explaining the current landscape of statutory interpretation. It explains the predominance of Chevron deference to agency interpretations, as well as the pattern of exceptions to that deference under Mead. It explains why interpretation should favor moderate interpretations, and why the real problem with Presidential signing statements lies with their timing, rather than with their lack of legislative origin. It explains that the seeming conflict of canons and counter-canons actually reflects the fact that some cases present conditions suitable for preference-estimating default rules and others for preference-eliciting ones. It offers a way of prioritizing which canon to apply first, and for guiding how we use legislative history. It even helps illuminate the seeming morass of preemption doctrine.

For more, you will have to read the book. But for present purposes, the point I want to make is just that, if we really are going to make this a separate basic subject, distinct from linguistics or substantive legal subjects, then it is going to have to offer some systematic account of a distinctive methodology that furthers some general accepted functional goal. Whether or not my book offers the right account, I think the future of statutory interpretation lies in this direction, rather than in approaches that favor either formalism or judicial judgment.

Ronald Reagan on Immigration:

Conservative Republican have been outdoing each other in claiming the mantle of Ronald Reagan. Ironically, however, many conservatives are simultaneously outdoing each other in advocating immigration restriction - a stance Reagan would probably have abhorred.

As Reagan biographer Lou Cannon points out in this book (pg. 119), Reagan proposed a treaty allowing for full freedom of movement for all workers throughout North America in his November 1979 speech announcing his candidacy for the presidency. As early as 1952 - at a time when US immigration policy was still governed by the highly restrictive Immigration Act of 1924 - Reagan gave a speech embracing nearly unlimited immigration:

I . . . have thought of America as a place in the divine scheme of things that was set aside as a promised land . . . [A]nd the price of admission was very simple . . . Any place in the world and any person from these places; any person with the courage, with the desire to tear up their roots, to strive for freedom, to attempt and dare to live in a strange and foreign place, to travel halfway across the world was welcome here . . . I believe that God in shedding his grace on this country has always in this divine scheme of things kept an eye on our land and guided it as a promised land for these people. (emphasis added).

Cannon, pg. 119.

Almost forty years later, in his January 1989 farewell message to the nation, Reagan struck a similar theme:

I've spoken of the shining city all my political life, but I don't know if I ever quite communicated what I saw when I said it. But in my mind it was a tall, proud city built on rocks stronger than oceans, wind-swept, God-blessed, and teeming with people of all kinds living in harmony and peace; a city with free ports that hummed with commerce and creativity. And if there had to be city walls, the walls had doors and the doors were open to anyone with the will and the heart to get here. (emphasis added)

In between, Reagan pushed for his 1979 North American accord proposal (which eventually became the NAFTA treaty), and signed the 1986 immigration reform law that amnestied almost 3 million illegal immigrants in exchange for relatively weak enforcement measures.

As his 1979 proposal and his support for the 1986 amnesty suggest, Reagan did not demonize illegal immigrants as all too many conservatives do today. He sought instead to enable them to legalize their status, and helped set many on the road to citizenship. In a 1977 radio address, he criticized "the illegal alien fuss" and suggested that illegal aliens may "actually [be] doing work our own people won't do."

While Reagan's rhetorical embrace of "anyone" who wants to come the US probably should be taken literally, it certainly indicates a generally positive attitude towards large-scale immigration from all parts of the world.

The fact that Reagan supported something does not by itself prove that it is right, or even that it is the right position for conservatives. Reagan certainly made his share of mistakes, such as the extremely grave error of trading arms for hostages with Iran. But as Cannon notes, Reagan's positive attitude towards immigration was not just an isolated issue position, but was integrally linked to his generally optimistic and open vision of America. I would add that it also drew on his understanding that America is not a zero-sum game between immigrants and natives - just as he also recognized that it is not a zero-sum game between the rich and the poor. Immigration could promote prosperity and advancement for both groups in much the same way that free trade benefits both Americans and foreigners. Reagan probably did not have a detailed understanding of the economics of comparative advantage which underpins this conclusion. But he surely understood it intuitively. Those who reject Reagan's position on immigration must, if they are to be consistent, also reject much of the rest of his approach to economic and social policy. Today's conservatives can argue for immigration restrictions if they so choose. But they should not claim the mantle of Reagan in doing so.

"The Constitution Does Not Protect a Suspect From Himself or His Mother":

The U.S. Court of Appeals for the Sixth Circuit ruled 7-6, en banc, in Van Hook v. Anderson, that a criminal suspect who has invoked his constitutional right to counsel may reinitiate communication with police through a trusted third-party. Judge McKeague's opinion for the majority summarizes

Following the arrest of a suspect, the police advise him of his rights outlined in Miranda v. Arizona. The suspect asks for a lawyer. Under Edwards v. Arizona, all questioning must then stop (a) until a lawyer has been provided, or (b) unless the suspect “himself” initiates a discussion. Later, police talk to the suspect’s mother (or a close friend, sibling, etc.), and, based on that conversation, they believe that the suspect now wants to talk with them without a lawyer. Are they permitted to approach the suspect and inquire whether he now wants to talk, based solely on the discussion with the mother? Or, rather, are they precluded from acting on that information because it was not communicated to them directly by the suspect? Today we join several of our sister circuits in holding that the police can make the limited inquiry without running afoul of Edwards.

In the case at hand, the police claim they were told by the suspect's mother that he wanted to talk to police after all, despite his earlier request for a lawyer. The police asked the suspect if this was the case and, after re-Mirandizing him, obtained his confession to a grisly murder.

Judges Cole, Merritt and Martin each authored a dissent. Judge Cole's begins:

The Court today adopts the position that law enforcement officers may renew contact with criminal suspects upon learning from third parties that the suspects are willing to waive their previously invoked right to counsel. In so holding, the majority concludes that neither reason nor established case law require suspects—who, by definition, are in jail surrounded at all times by law-enforcement personnel—to directly communicate to police their wish to waive their previously invoked constitutional rights. The Supreme Court has instructed us that we must view custodial waivers of rights with a high degree of suspicion. In my view, we must be doubly skeptical of a waiver of rights effected through the backdoor of a purported third-party agent, especially when all the suspect has to do is proclaim to the nearest guard, “I want to talk.”

Of Police Officers and Requests for ID:

Co-blogger Jonathan Adler writes:

I have no problem with the idea that a seizure [under the Fourth Amendment] occurs when a reasonable person would believe that he or she is not free to walk away. My problem is that the "reasonable person" some judges imagine seems far too willing to question or challenge police authority. I sincerely doubt that most "reasonable" Americans unschooled in criminal procedure feel free to casually deny police requests, let alone disregard police inquiries entirely and just walk away. This may be how judges interact with police officers, but in this regard I do not believe the average judge adequately represents the reasonable person.

I think that this is exactly right. When I clerked on the US Court of Appeals for the Fifth Circuit , I saw numerous cases where citizens allowed police to conduct searches (and find incriminating evidence!) in situations where legal precedent allowed them to refuse. Moreover, if my own experience is at all typical, even some employees of the legal system are reluctant to "casually deny police requests."

Back in 2001, when I was clerking for the Fifth Circuit in Houston, I was pulled over by a police officer for a minor traffic violation (I thought I wasn't doing anything wrong, but the officer had a different view, and perhaps he was right). He asked me to show him my license, which I did. Unfortunately, since I was only living in Texas temporarily, I was still using my Massachusetts license. This wasn't good enough for the officer. "Son," he said, "you have to show me a Texas ID."

I suspected that it was not legal for him to require a Texas ID. After all, what happens if he stops a driver from another state who was just passing through? Would he be required to have a Texas ID as well? Nonetheless, I was VERY reluctant to get into an argument with a cop; after all, if I pissed him off, he could saddle me with a more expensive ticket, or worse. Instead, I showed him the closest thing I had to a Texas ID: my ID from the Fifth Circuit. "You work for the Court of Appeals?" the officer asked skeptically. Such a suspicious-looking character couldn't possibly be an employee of the criminal justice system! "Tell me the address of the federal court house," he demanded. After I told the officer the correct address, it dawned on him that I really was a court employee, and not a devious impostor trying to get away with traffic violations. Right away, the tone of the conversation changed, and I was let off with a mild warning (whereas before it seemed fairly clear that he was going to write me a ticket).

The episode shows the favoritism that police sometimes extend to fellow law enforcement employees. Although it had not occurred to me that I could use my exalted status as a law clerk to get out of a ticket, I later learned from other court employees that this kind of police behavior is far from unusual.

But the incident also suggests that even lawyers and others better acquainted with the law than the average person might be reluctant to challenge police demands - whether those demands are legal or not.

Related Posts (on one page):

Finally, an Honest Candidate for the Presidency of a Bar Association:

Reduce the number of lawyers, reduce pro bono work, increase the requirements for legal study, and raise fees. So says Eitan Erez, candidate for the presidency of the Israel Bar Association.

"I Would Like to See Your ID":

When does a consensual police encounter become a seizure under the Fourth Amendment? If a police officer approached you at night and said he "would like to see your ID, just to log that I talked to you," would you feel free to decline his request or leave? (And for the CrimPro guru readers, did you feel that way before learning the law?) What if the police officer asked you for your ID or identifying information, adding that you could "be on your way just as soon as I ID you"?

This issue divided a panel of the U.S. Court of Appeals for the Sixth Circuit today in United States v. Campbell. There was unanimous agreement on the relevant legal standard -- a seizure occurs when "under the totality of the circumstances, a reasonable person would have believed that he or she was not free to walk away" -- but disagreement on its application to the facts. The majority opinion by Judge Gilman (joined by Judge Clay) stresses the officers use of the word "like," denoting a request rather than a command or order. Judge Cole in dissent, on the other hand, stresses that the officer, by his own account, nonetheless conditioned Steven Campbell's ability to go on first providing ID.

Setting aside the particulars of this case (as there are other potentially relevant details I have omitted), this is an area of criminal procedure that has always made me a bit uncomfortable. I have no problem with the idea that a seizure occurs when a reasonable person would believe that he or she is not free to walk away. My problem is that the "reasonable person" some judges imagine seems far too willing to question or challenge police authority. I sincerely doubt that most "reasonable" Americans unschooled in criminal procedure feel free to casually deny police requests, let alone disregard police inquiries entirely and just walk away. This may be how judges interact with police officers, but in this regard I do not believe the average judge adequately represents the reasonable person.

Related Posts (on one page):

For a Patronizing Response to My Post About Menstruation,

see Ann Bartow (Feminist Law Professors). For the life of me, I can't grasp exactly what her disagreement is with my position (see here for the post to which she's responding, and here for my original post, to which the other post was a follow-up). But apparently she does disagree.

As for me, I found the comments to the Conspiracy post far more enlightening, though Prof. Bartow thinks the commenters are largely lying about their sex, for no reason that I can identify.

Oh, and then there's this from Prof. Bartow: "One thing I've learned is that if you want all the men to leave a room at breakneck speak, just uttering the word 'uterus' will sometimes do the trick." Huh, never seen that happen, but maybe I just hang out with the wrong crowd.

UPDATE: A commenter at IsThatLegal? came to my defense, writing, "Ann Bartow isn't being exactly fair. Some guy said something kinda stupid, and Volokh replied: 'Oh, really? Lets ask actual women about menstruation. So, women, how about it? Is it a life affirming shared cultural experience?' That's an entirely reasonable response." Prof. Bartow responded with this comment:

Well here's the thing, Patrick: There is a whole lot of diverse and interesting literature that has been *already written* that could bring Eugene up to speed a whole lot more effectively than the commenters at the Volokh conspiracy, if he was actually sincere about educating himself about menstruation. And I'm pretty sure UCLA has at least one library. It even has a Women's Studies Department, not that I would ever expect Eugene to think he could learn anything from the faculty there.

Now I'm extra puzzled. I asked women readers for their personal life experiences, hoping that the responses would confirm my view (which is that few women would find that voluntarily stopping menstruation would "subtract perceived meaning from [their] lives") or correct my view if my view was mistaken, and in the process enlighten other readers on the question. I had thought this sort of give-and-take with readers would be fun and interesting.

Why didn't I instead read the "diverse and interesting literature" on the subject? Because asking people questions about their experiences — going to the library, and finding and reading the relevant scholarly articles — is often (1) more pleasant, (2) easier, and (3) more enlightening to other readers, who'll see the answers right there on the blog. True, systematic research has its advantages; but sometimes conversation has its advantages, too. Why didn't I ask people at the Women's Studies Department? Maybe because it would have been a bit of an imposition on colleagues' time (and, if I asked for personal experiences about menstruation, might have be seen by some of them as somewhat intrusive), whereas a query to readers is not such an imposition, since it's very easy for any reader to take or leave.

What sort of feminism is it that faults people for asking actual women about their experiences, and for trying to start a public conversation in which women's opinions are actively solicited, on the grounds that the questioner should instead have gone to the library or taken up the time of his colleagues?

FURTHER UPDATE: On the other hand, for a serious, thoughtful, and interesting response to the original question, see this from Christine Hurt (Conglomerate).

Related Posts (on one page):

For a Patronizing Response to My Post About Menstruation,
Seeking Input from People Who Have Actually Menstruated:
Pill That Ends Menstruation:

Balkin's Next Round on the Death of Doctrinalism: Over at Balkinization, Jack Balkin has another post on the role of doctrinalism in the legal academy. If you've been following the thread, this one is a must-read. A taste:

To be a professor of law-- as opposed to a professor of philosophy or biology-- is to be perpetually beholden to that professional discourse and practice; it is to be seen by everyone else, if not yourself, as member of a professional cadre. This strains one's claims to be a philosopher, a social scientist, a humanist, or indeed anything else.

Some legal scholars embrace this professional identity willingly. Others are more ambivalent. But all of us recognize, consciously or unconsciously, that in some way we must distance ourselves from simply being case and statute crunchers if we aspire to be intellectually serious and therefore deserve the title of academic or policy expert or social scientist or humanist or philosopher. The latter, we know in our heart of hearts, aren't mindnumbing case crunchers-- they are in pursuit of the true, the good, the just and the beautiful. That's what we are after too, and as Einer tells us, finally, we are just about to get there. Indeed, to quote Karen Carpenter, we've only just begun.

Swear on What Matters To You:

The AP reports (thanks to How Appealing for the pointer):

Witnesses and jurors being sworn in at state courthouses can take their oath using any religious text, not just the Bible, a judge ruled Thursday.

Judge Paul Ridgeway said both common law and state Supreme Court precedent allow witnesses and jurors to use the text "most sacred and obligatory upon their conscience."

The ruling came after the American Civil Liberties Union argued that limiting that text to the Bible was unconstitutional because it favored Christianity over other religions.

The issue surfaced when Muslims tried to donate copies of the Quran to Guilford County's two courthouses. Two judges declined to accept the texts, saying that taking an oath on the Quran was illegal under state law.

State law allows witnesses preparing to testify in court to take their oath by laying a hand over "the Holy Scriptures," by saying "so help me God" without the use of a religious book or by an affirmation using no religious symbols....

This is quite right. First, governmental preference in oaths for the Bible over the Quran would violate the Establishment Clause, under existing precedents that as best I can tell are endorsed by all the Justices of the Supreme Court.

Second, the whole point of the oath is to invoke God as a witness to one's promise, as a means of making the promise more weighty on the oathtaker's conscience. We should want devoutly religious people to swear on the book that is most holy to them, rather than swearing on a book that means less to them (or means nothing to them), or than simply affirming. This is why, for instance, the Federal Rules of Evidence have long stated,

Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so.

For a Muslim, that's the Quran, not the Bible.

Cashier Refuses to Serve Student Wearing Pro-Zionist T-Shirt:

From the Washington Post:

Mia Lazarus put her chips and juice down on the counter and prepared to pay. But in the midst of the lunchtime rush, the cashier's eyes wandered to Lazarus's T-shirt, which expressed a political message that proved to be overwhelming for the clerk.

One glance at the words "Baltimore Zionist District" on Lazarus's "I Stand for Israel" T-shirt, and the cashier at the Maryland Food Collective, a crunchy grocery and sandwich shop in the student union on the University of Maryland's College Park campus, blurted: "Your shirt offends me. I won't ring you up." The cashier told Lazarus she could go to the back of the store to find another clerk....

Lazarus wasn't much inconvenienced:

Lazarus got her food; another cashier at the independent, worker-owned co-op was willing to take the student's money. But the incident led to the creation of a Facebook site on which some students called for a boycott of the food co-op; an hours-long, teary meeting at which Lazarus and her friends hashed things out with the collective; and then an agreement.

The collective, which rents space from the university, announced last week that it would serve any customer who was not physically or verbally abusive, but that any worker who was offended by a customer's politics could discreetly slip away and find another clerk to serve the patron.

That seems right to me: If the collective can accommodate its employees' personal preferences without inconveniencing the patron (assuming there's no material delay), and if it wishes to accommodate such preferences, that's fine.

Still, it's unfortunate that some patrons would be so intolerant of support for Zionism that they would refuse to do business with those who wear such T-shirts. One aspect of everyday tolerance is that you don't let most political disagreements get in the way of doing business together. There are exceptions (I wouldn't want to do business with someone wearing a KKK T-shirt, and I'd take the same view about Che Guevara T-shirts if I thought most of their wearers really supported what Che stood for, rather than just engaging in political posturing). But people who believe that support for Israel and Zionism should fall within that narrow zone are, in my view, morally mistaken.

I would also not endorse laws that ban such discrimination; nor would I argue for First Amendment protection here, since the co-op is a private entity, and its renting government property shouldn't affect that analysis (cf. Rendell-Baker v. Kohn, but see Wilmington Parking Auth. v. Burton).

At the same time, the University of Maryland is entitled to make sure that space that it rents out on its campus is available to people without regard to "race, color, creed, sex, sexual orientation, marital status, personal appearance, age, national origin, political affiliation, physical or mental disability, or on the basis of the exercise of rights secured by the First Amendment of the United States Constitution" -- even when the difference in treatment involves a few seconds of delay, which the patrons will likely understand stems from a server's refusal to serve them. (I quote this list from the Human Relations Code; I'm not sure it's literally applicable here, but there may be similar terms in the co-op's lease, and in any event the University may set up such rules for its lessees.) And I particularly liked the reaction of Gretchen Metzelaars, director of Maryland's student union, met with the collective "trying to help them come to the conclusion that they must abide by the university's human rights code":

Despite hours of conversation, "it became apparent that they were not coming to the right conclusion," Metzelaars said. "So we delivered it to them." This week, she told the collective that if it discriminates again, it will have 60 days to vacate the premises.

"They can't see that this is discrimination .... They're more committed to their righteousness than they are to the rights of other people. The fact is, you have to serve everyone."

The collective finally seemed to get that idea, Metzelaars said. But then, "we finished our discussion, and they said, okay, but if someone came in wearing a swastika, we wouldn't serve them. And I said, 'Whoa! That's the problem right there: Everyone gets to say what they believe, and you have to serve them.'"

Not the only approach that would be proper, I think, but a sensible approach, especially in a university.

Finally, let me close with this: "The students don't want to come off as haters. When Lazarus and others active in Maryland's Jewish student groups met with the collective, the visitors baked a vegan chocolate cake and brought it as a peace offering." Something about that "vegan" is just so apt.

New Report of British Gun Control Failure

Last year, four professors at Portsmouth University conducted a study for the British Home Office, whose essential argument was that the only thing wrong with Great Britain's extremely repressive anti-gun laws is that there are not enough of them. On behalf of the Shooting Sports Trust, Colin Greenwood authored a detailed critique of the study, which is now available on the web. Colin Greenwood is a retired police officer, a leading expert on British firearms police policy, and author of many articles and monographs on the subject, including the 1972 book Firearms Control.

Crimes and Motivations:

I'm skeptical of hate crimes laws for various reasons, but I don't agree with the oft-heard argument that there's something unconstitutional or inherently wrong about enhancing punishments based on motivation.

Consider this comment: "I simply can not abide these 'hate crime' laws and am amazed that they have not been struck down. A murder is a murder; these laws criminalize speech, plain and simple." A murder is a murder -- yet the law has long distinguishes between different motivations for homicide.

Killing someone because you're enraged over his having attacked your family members (or even seduced your wife, a more controversial matter) is manslaughter. Killing someone because you just don't like them is often second-degree murder. Killing someone for financial gain may be more likely to be first-degree murder. Your motivation matters; and it will often be proved using your speech. Does it follow that these doctrines unconstitutionally "criminalize speech, plain and simple," or violate the principle that "[a] murder is a murder"?

Or consider treason law. Blowing up part of a defense contractor's plant in time of war is a serious crime. But it's treason only if it's done with the purpose of helping the enemy. If you blow up part of the plant because you're on strike and you're angry at the plant's management, it's still a felony, but it's not treason. Here the matter turns not just on motivation, but politically laden motivation (are you on our side, or the Communists' / Nazis' / jihadists'?). Still, motivation quite properly matters. We don't say "arson is arson; these laws criminalize speech, plain and simple" -- we distinguish between arson caused by anger or a desire for economic retaliation (bad though it is) and arson caused by a desire to help the enemy (worse).

The same is true with antidiscrimination law generally, though it's enforced through civil litigation: Motive is what turns perfectly permissible conduct into civilly actionable conduct. If a university is sued for expelling a student because of the student's conservative political speech, and its defense is that expelled the student for other reasons, the litigation will be all about motive. Likewise if an employer is sued on the grounds that if fired an employee because the employee was Catholic, black, white, female, or whatever else. The legal system does not say "firing is firing; these laws criminalize speech, plain and simple."

Now it may well be that a crime in which the victim was picked out because of his sexual orientation isn't materially different from a similar crime committed for most other reasons. It may well be that, even if there is a material moral and practical difference, drawing the line between the different motivations may be socially corrosive in various ways. It may well be that, even if there is such a difference, determining the speaker's motivations may too often require a focus on the speaker's political views, and might thus have too much of a deterrent effect even on lawabiding people. And it may well be that the laws are sometimes abused to actually punish constitutionally protected speech (rather than just using it as evidence of intent to commit a nonspeech crime).

As I said, I generally oppose hate crime enhancements, for a mix of these reasons. But "A murder is a murder; these laws criminalize speech, plain and simple" (and variants of this) is not, I think, a sound ground for opposition.

Related Posts (on one page):

Crimes and Motivations:
Fliers With Person's Picture + "God Hates Fags" = Felony:

Reading Material as Evidence, and the First Amendment:

A fascinating opinion from a Ninth Circuit en banc panel. How Appealing summarizes the matter well; to put it briefly:

(1) The Supreme Court has held that speech may be used as evidence of someone's intent, motive, or even actions. For instance, someone's having said "I think Muslims deserve to be killed" may be evidence that his killing of a particular Muslim was deliberate (intent). It may be evidence that the killing was motivated by the target's religion and thus eligible for a hate crime enhancement (motive). And it may be evidence that the speaker was the one who did the killing (motive, which, coupled with other circumstantial evidence, can tend to show action).

(2) The First Amendment question is when this extends to evidence of what someone has read, and in particular to evidence of fiction that one has read -- here, whether defendant's likely having read explicit stories involving sex with children can be introduced to show that he really intended to seduce a 14-year-old girl, rather than just play-acting with someone he thought was an adult. Judge Trott concludes there's no First Amendment distinction there; Judge Klenfeld, joined by Judges Pregerson, Kozinski, Thomas, and Berzon concludes that there is a First Amendment distinction.

(3) There is also some disagreement, related to the constitutional question but analytically distinct from it, whether this evidence was admissible under the Federal Rules of Evidence governing relevance (Rule 401), unfair prejudice (Rule 403), and prior acts evidence (Rule 404). (If the evidence is inadmissible just because of the federal rules, then it might be admissible in state criminal prosecutions, if state courts interpret the analogous state rules differently; if it's inadmissible because of the First Amendment, then this prohibition would apply to all jurisdictions.)

In any case, a fascinating question, and one that has some relevance to debates about the possible speech-deterring effects of hate crimes laws. (See, e.g., United States v. Magleby, 241 F.3d 1306, 1318-19 (10th Cir. 2001), cited in the majority opinion, which allowed evidence that defendant had listened to racist music as evidence that defendant's cross-burning -- a punishable threat -- was racially motivated.)

Fliers With Person's Picture + "God Hates Fags" = Felony:

That seems to be the theory of this prosecution in Illinois:

A 16-year-old Crystal Lake girl facing a felony hate crime charge alleging she and a friend distributed anti-homosexual fliers at her high school must remain locked up until her case goes to trial, a McHenry County judge ruled Tuesday.

Citing concerns over the girl’s home environment and her already lengthy juvenile record, Judge Michael Chmiel denied the girl’s request for home detention.... The girl’s record, Chmiel said, features 13 contacts with police, including an arrest for marijuana possession in August....

She and her 16-year-old friend each face charges of hate crime, disorderly conduct and resisting a peace officer stemming from their arrest May 11 outside Crystal Lake South High School. The charges allege the girls were distributing fliers showing two men kissing and containing inflammatory language toward homosexuals....

The fliers show two men kissing — one of them apparently "a male classmate[,] and neighbor of one of the girls[,] with whom they had been feuding" — coupled with the words "God hates fags."

The other girl was let out on house arrest (she's being electronically monitored, and can only go to "school, counseling, work or other activities approved by a probation officer." Her lawyer, Charles McKenney, is quoted as saying, "I believe [the prosecution] more attacks the speech, and at this point, they haven’t shown what conduct was truly disorderly."

This strikes me as a very serious First Amendment problem. Hate crime laws that apply harsher punishment to people who commit assault, murder, or other crimes are generally constitutional (though I think they're generally misguided as a policy matter). Hate crime laws that apply harsher punishment to bias-motivated threats, face-to-face insults that are likely to provoke an immediate fight (so-called "fighting words"), and other unprotected speech, might be constitutional; compare Wisconsin v. Mitchell with R.A.V. v. City of St. Paul.

But here the speech does not fit within any existing exception. It's contemptible and offensive, but it is not sufficiently clearly threatening to fit within the exception for true threats, it's not a face-to-face insult likely to cause immediate violence, and it doesn't fit within any other existing exception to constitutional protection.

Calling it "harassment," "breach of the peace," "disorderly conduct," or "intentional infliction of emotional distress" is just labeling, and doesn't explain which First Amendment exception strips the words of protection. If anything, it highlights the vagueness of the legal theory under which the prosecution is operating, since these terms do not clearly define which speech will be punished by the law, and thus pose the three related problems of vague speech restrictions: lack of fair notice to speakers, risk of discriminatorily viewpoint-based enforcement, and tendency to deter speech. It's not just about "God Hates Fags"; if those words can be made a felony under one of these vague rationales, a wide (and unpredictable) range of other words could be punished as well.

So here it does seem like "hate crime" laws are being used as a speech code, and a speech code that makes the speaker into a criminal — in fact, given the nature of hate crimes enhancements, a felon — rather than justing lead to administrative punishment of high school students (which might be appropriate here, if the speech causes a disruption at school, though there's some uncertainty about whether that's covered by Tinker). Unless there are some facts here that are missing from the news coverage, this prosecution strikes me as a clear and serious constitutional violation. And it is evidence that fears that "hate crimes" laws will become "hate speech" bans are not implausible.

I should note that I don't know the law related to bail and to house arrest in juvenile cases. I therefore can't opine on the propriety of detaining one girl without bail and placing the other under house arrest pending trial, rather than letting both of them out on bail without house arrest, which I take it would be the norm for most adult crimes (except when there's a flight risk, a risk that the defendant will violently attack witnesses, or an extremely grave crime being charged).

Thanks to readers Fred Ray and Michael Lorton for the pointers.

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Crimes and Motivations:
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Why All This Lateral Hiring By Elite Schools? Einer asks the question, why are the elite schools doing more lateral hiring now, especially of younger professors, than they used to? One possible explanation rests on two factual assumptions. First, that the credentials typically relied upon by elite schools for entry level appointments--e.g. elite law school diploma, stellar grades, law review, Supreme Court clerkship, job with top law firm--simply did not reliably enough produce superstar legal scholars. Second, that the unwillingness of elite law schools to deny tenure to anyone who was able to publish one or two massive "tenure pieces" prevented elite law schools from weeding out the nonproducers. As a result, elite law schools were stuck for life with lots of former-superstar law students who underperformed as legal scholars. The solution to this situation has been obvious for some time: let other law schools assume the risks of entry level hiring, while the elite law schools skim the cream by hiring laterally those who prove themselves to be great scholars. In other words, if the elite law schools could not use the probationary period of pre-tenure to weed out those who were not going to be successful, then it is prudent to let other schools take the chances.

The problem with implementing this strategy was that, to become a great scholar, one had to say something in print--usually a sustained something--and that something was likely to annoy one or another faction of the faculty at the elite school, who would then block the appointment. Far easier it was for elite faculties to agree to to hire entry-level candidates with little or no scholarly track record but lots of "promise." This is why, in Harvard's case, Elena Kagan's deanship has been so important: she has been able to break the "collective action" logjam at the faculty level and thereby allowed Harvard to pursue its true self interest in the lateral market--as Yale, NYU and others have been doing for considerably longer. In Yale's case this began in earnest with Guido Calabresi's deanship and at NYU with John Sexton's. If the numbers of lateral appointments are increasing beyond the huge numbers of appointments made recently by Harvard, it may be because this strategy is proving over time to be successful for the elite schools.

Undoubtedly, there is more to the story--like the fact that because more and more law schools at all levels are hiring entry levels for their scholarly promise, there are more prospective lateral candidates at less prestigious schools to be cherry-picked by the elite--but this seems like at least part of it.

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George Lucas Wants You To Work for Him for Free: George Lucas, ~~ruthless~~ ardent defender of his intellectual so-called property rights, is about to launch a redesigned website providing hundreds of Star Wars™ video clips along with the software to create mashups.

“Star Wars” fans can connect with the Force in ways they’ve only imagined beginning May 25, when StarWars.com launches a completely redesigned website that empowers fans to “mash-up” their homemade videos with hundreds of scenes from “Star Wars” movies; watch hundreds of fan-made “Star Wars” videos; and interact with “Star Wars” enthusiasts from around the world like never before.

With an innovative, interactive site that allows users to navigate to multiple “Star Wars” worlds, a new video focus, and groundbreaking “Web 2.0” features – including a unique online multi-media mixing platform from Eyespot – the new StarWars.com will unveil its redesigned website on May 25 to commemorate the 30th anniversary of the “Star Wars” Saga.

Among the most compelling features of the newly redesigned StarWars.com is the incorporation of an online video-editing tool provided by Eyespot. It allows users to add their own video shots to more than 250 scenes and music taken from all six “Star Wars” films and create their own “Star Wars” movies to share with others.

For more of this story, click here. According the Wall Street Journal this morning, the fan-created videos will run along with commercials "with Lucasfilm and Eyespot splitting the proceeds." Asked about why Lucasfilm will allow this use of their images, a spokesman said, "If someone wants to commercialize it, that's where we've drawn the line." So it's OK for Lucasfilm to commercialize the creative efforts of Star Wars ™fans, but not the other way around.

But the laugh is really going to be on Lucasfilm because, as we all know, people won't invest scarce time producing creative works that others want to watch without the financial incentives provided by intellectual "property" rights granted for "limited times" (i.e. in perpetuity). So it is safe to predict that no one will contribute any mashups to the new Starwars.com website. Boy, will that be embarrassing for them!

PS: Don't Google™ "Starwars mashup" unless you want to see a bunch of amateurish uses of Star Wars™ clips, like this one, that are taking food out of the mouth of George Lucas, depriving him of the opportunity to commercially exploit his own us of Star Wars™ clips as mashups, and preventing him from raising the funds that are needed to make a watchable entertaining feature-length Star Wars™ film:

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Blackstone and Copyright and Patent as (Limited) Property:
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All we need is "Love"?:

The Exploding Laterals Law School Market.

What accounts for the explosion in the law school market for making lateral hires from other law schools? Law schools have long attempted to hire legal scholars from other schools. But the degree of competition for top laterals has become remarkable.

One indication is the huge number of law professors who will be visiting top law schools as reported in Leiter’s Law Reports: 103, including Harvard (46), Stanford (4), Chicago (14), Columbia (20), NYU (19). Such visits are typically used to look over professors for a possible lateral offers, and clearly that is what is going on for a large number of persons on this list. The number of lateral visitors Harvard Law School will have next year will be double what the size of the whole faculty was in the 1950s.

Some of this will turn out to be professorial flirting, but a lot of these visits will result in actual lateral offers and moves. Consider the large, and highly prominent, set of laterals that have accepted offers from Harvard Law School during Dean Kagan's four year Kagan deanship: Noah Feldman, Jody Freeman, Jack Goldsmith, Daryl Levinson, Bruce Mann, John Manning, Gerald Neuman, Robert Sitkoff (just yesterday), Kathy Spier, George Triantis, Mark Tushnet, and Adrian Vermeule.

And the full returns are not even in yet on past visits, for Harvard still has outstanding offers out to: Yochai Benkler, Richard Ford, Pamela Karlan, Michael Klarman, Martha Nussbaum, Robert Post, William Rubenstein, Seana Shiffrin, Reva Siegel, Henry Smith, and Cass Sunstein. If even six out of these eleven outstanding offers are consummated, it will mean the addition of a total of 18 laterals, a remarkably sharp transformation of the school in a very short time.

What accounts for this explosion in competition for laterals? One might think the phenomenon is unique to Harvard. But the long list of visitors at top law schools indicates it is a more universal phenomenon. Still, there is a Harvard-centric theory. Namely, the Kagan deanship ended a certain amount of constipation in the Harvard laterals hiring process, and once Harvard started to aggressively pursue laterals, other law schools had to do so to keep up with the competition.

I think there is a certain amount of truth this. One individual can often make a remarkable difference, and Dean Kagan appears to have done so. But this explanation does beg the question: why didn’t other law schools choose to compete by instead focusing more on the entry level market? There the level of hiring seems largely unchanged.

Other factors have also surely contributed to the current laterals frenzy. The large run up in the stock market last decade made donors and law schools relatively well-off, giving them the funds to pursue scholars and smaller class sizes. The revival of New York City by Guiliani made NYU and Columbia much more attractive places and helped them compete for top scholars. And all the top law schools have in recent years had deans who are young, smart, ambitious, and aggressive. But all these factors still fail to quite explain why these well-funded, more attractive schools with ambitious deans choose to focus more on laterals than on entry-levels, especially given that entry-levels do not require expensive visits and are generally easier to land because they are less likely to require a family-disrupting move.

I think the answer is related to a trend I mentioned yesterday: the death of doctrinalism. That death caused the entry level market to largely shift its focus to JD/PhDs as the set of persons who could, at the entry level, most plausibly offer demonstrable proof of their ability to engage in the sort of serious interdisciplinary work that modern law schools now require. But there is a relatively small set of such JD/PhDs to chase, so this strategy does not offer many opportunities for expansion. And it misses the large set of talented potential legal scholars who do not get PhDs.

One reaction to this limited pool has been to create fellowships to train JDs to do interdisciplinary work before they hit the entry level market. But this is a relatively new phenomenon and has not yet created a sufficient number of serious interdisciplinary entry level candidates to meet demand.

So the complementary alternative has been to use the laterals market to focus on those scholars who have proven their ability to do interdisciplinary work as professors elsewhere. We’re often not sure which entry level candidates will turn out to be able to do such work, because many of them have not been given much of an opportunity to do so. But once they demonstrate such an ability in their scholarship, then the top law schools are all over them.

This explanation is consistent with the pattern of PhD hiring at the entry and lateral levels. For example, 6 out of 7 of Harvard’s recent entry-level hires have (or will soon get) PhDs, and the one who does not was a quasi-lateral, having been a visiting professor here for two years first. In contrast, 9 of Harvard’s 12 recent lateral hires have no PhD. I can attest that this pattern was not the product of any conscious design: it simply reflects which sorts of candidates seemed attractive.

Another trend that is consistent with this explanation is that lateral visits are now increasingly focusing on laterals much earlier in their career, often after they have been professors elsewhere for only a few years. This is a big change from the old model, where lateral offers generally focused only on fairly senior scholars who were the established leaders of their field. This shift makes sense if the shift to laterals reflects some substitution away from entry level hires because of the limited number of JD/PhDs, toward other young candidates who have demonstrated their ability to do interdisciplinary scholarship at another school. Look for more of the same in future, with some lessening of focus on laterals as fellowship programs expand to meet the demand for entry level candidates who can do interdisciplinary work without necessarily having PhDs.

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U.S. Carbon Emissions Drop, Europe's Increase:

Despite American inaction on climate change, emissions dropped in 2006. The AP reports:

The department's Energy Information Administration said Wednesday that preliminary data shows a 1.3 percent decline in the amount of heat-trapping carbon dioxide released in 2006 from energy-related sources, the first decline in 11 years and the biggest decline since 1990. . . .

Whether the decline of 78 million metric tons was an anomaly, or an indicator of something more, was unclear.

The Energy Department report said one reason for the decline was that 2006 had "weather conditions favorable for emission reductions." . . .

In 2006 there was a mild winter that reduced heating degree days by 7.4 percent, and a cooler than normal summer that cut cooling-degree days by 1 percent, both compared to 2005, the agency said. . . .

Carbon dioxide from natural gas declined by 1.7 percent and coal _which accounts for the most carbon emissions per unit of energy produced of any fossil fuel — was down 0.9 percent. Emissions from burning gasoline and diesel increased, but those increases were offset by declines in other petroleum fuels such as heating oil, said the agency.

The reductions resulted in the largest decline in carbon intensity — the amount of emissions related to economic growth — since 1990 with a reduction of 4.5 percent, said the report.

Meanwhile, carbon dioxide emissions increased in the E.U., in part because European governments allocated excess emission credits due to industry pressure. The Guardian reports:

In 2006, industry emitted about 30m tonnes less than permitted. German emissions rose 0.6% while overall EU emissions went up by 1%-1.5% because of resumed growth in the eurozone.

EU officials claim their efforts will become more successful as they clamp down on the volume of emission permits.

Response to Professors Tribe and Balkin.

Well, my little piece on the death of doctrinalism (see below) seems to have excited a bit of attention over at Balkanization, drawing responses from my good friends (and even better scholars) Professors Tribe and Balkin. A few words in response:

I think the main problem is definitional. I do not think Professors Tribe and Balkin would deny that Harvard and Yale often reject some scholars as “too doctrinal.” But, as I took pains to stress in my posting, this claim does not include people who take doctrine seriously, so the question is what we mean by “doctrinal” work. To avoid an I-know-it-when-I-see-it type test, I offered a specific definition.

Professor Tribe objects that my “description of ‘doctrinalism’ is so narrow that it definitionally excludes most of the best doctrinal work I've encountered in the past several decades.” Well now, given my definition, I cannot be excluding “doctrinal” work; I am excluding something else. This objection is a little like objecting to a claim that short people (defined as less than 5'6" tall) have a very hard time making it in the NBA on the ground that some short 5'11' people are in the NBA.

Professor Balkin objects that, given my definition, “there's very little scholarship these days that is doctrinalist.” Yes, that was my point – it is dead. Indeed, Professor Balkin confirms my point when he says that “legal scholarship that gets you a good job has to be interdisciplinary.” Precisely. His point is just that this work usually still takes doctrine seriously, with which I agree entirely, which is why I define “doctrinal” to exclude work that just does that, as well as to exclude work like that by Professors Tribe and Balkin, not to mention myself.

Maybe you don’t like my particular definition of what is meant when scholarship is deemed “too doctrinal.” Fine, feel free to propose another. Really, feel free, I am not at all sure I have the best definition yet, so am more than glad to take nominees. But whatever plausible definition you come up with, I am confident it will remain true that it is harder to get hired as a doctrinal scholar now than it used to be, and that the proportion of doctrinalists is higher in constitutional law than in other fields.

Professor Tribe also objects to my provocative little sidebar about “the oddity that the marquee legal subject, constitutional law, is also the least intellectually respected among law professors because it is the most doctrinal.” He offers three responses: “[1] its real world importance, [2] the high regard in which it is held in law school and university settings, and [3] its locus of much substantive intellectual accomplishment.” But points 1 and 2 simply confirm my point that, like it or not, constitutional law is the marquee legal subject. Point 3 confuses the ordinal with the absolute. There is no inconsistency between the claim that constitutional law scholarship is the least intellectually respected in today’s academy (because a higher proportion of it is doctrinal) and the fact that much of it has substantive intellectual accomplishment.

After all, we outside of constitutional law like to think we have lots of work with substantive intellectual accomplishment too, thank you very much. It is all about the relative proportions. And I think the plain fact is it easier to publish a dull doctrinal constitutional law article than a dull doctrinal article about anything else. But really this was just a fun aside, not the main point, which was to warn aspiring scholars to avoid doctrinalism.

Professor Tribe also complains that my list of the “dazzling dozen omits many scholars who are the most cited and most highly regarded.” Granted, but then again I was not offering a list of the top 12 scholars. I was just offering a list of great interdisciplinary scholars I happened to know had no PhD. I could have named many more.

Finally, Professor Tribe says “I'm inclined to conclude that Professor Elhauge's insights don't explain recent hiring patterns, at Harvard or elsewhere, and certainly nothing he says should discourage those with enough of what Einer describes as ‘raw talent and creativity’ from pursuing their intellectual interests in law and legal thought wherever those interests lead them.” On the hiring patterns, I shall have more to say in tomorrow’s posts, but it is indisputably the case that entry level hiring has strongly favored JD/PhDs, and I think equally clear that under any plausible definition it has disfavored doctrinalists as well.

I can only wholeheartedly agree with Professor Tribe that those with raw talent and creativity should not be dissuaded from pursuing their intellectual interests in law. The question is what the best strategy for pursuing those interests are, and I think it is pretty clear that if you do not have a JD/PhD, you should get a fellowship to make your work less doctrinal if you want to maximize your odds of getting a top job on the entry level market. Or failing that, learn how to do good interdisciplinary work elsewhere and then make a lateral move on the very hot laterals market, as I discuss in tomorrow’s post.

And if you have a chance on the laterals market to hire Professors Tribe or Balkin, grab it.

California Waiver Hearing:

Yesterday's Senate hearing on California's request for a waiver from federal preemption of its greenhouse gas emission standards for new motor vehicles was largely a platform for California Attorney General Jerry Brown and Committee Chair Barbara Boxer (D-CA) to complain about Bush Administration intransigence on climate change and failure to act on the waiver before now. It was not designed, or intended, to be a serious discussion of the issues. [This was not particularly unusual, as many Congressional hearings are political theater of this sort.]

According to Brown and Boxer, the EPA's failure to grant the waiver blocks California from acting to reduce greenhouse gas emissions. This is simply not the case. Whether or not California is precluded from adopting vehicle emission standards under the Clean Air Act (or the Energy Policy and Conservation Act, which may preempt the California rules irrespective of what the EPA does), there are many other actions California can take. If vehicular emissions of carbon dioxide are of the greatest concern, California could increase its gasoline taxes. This could produce far greater emission reductions in substantially less time than phasing in standards for new vehicles between 2009 and 2016. Such a policy is less attractive to California politicians, however, because it would impose clear costs on California consumers. A significant portion of the cost of emission standards for new vehicles, on the other hand, would fall on consumers and producers in other states. That portion of the costs borne in California would be folded into the cost of new cars and trucks. This is why California politicians would rather fight with Washington over federal preemption than take more direct action to curtail fossil fuel energy use.

The most interesting thing about yesterday's hearing for me personally was meeting Jerry Brown, the current attorney general and former governor of California (not to mention the former mayor of Oakland). After the hearing was officially over, we discussed the merits of California's waiver request for a bit about the waiver and climate change policy more broadly. He wants a waiver, to be sure, but he'd also be happy if the federal government adopted stringent vehicle emission standards of its own. I was struck by his genuine intellectual interest in the legal questions, apart from his political interests and policy preferences. I am sure Brown deserves his idiosyncratic reputation, but I left our encounter quite impressed.

The written statements and an archived webcast of the hearing are here. The Los Angeles Times and Washington Post also covered the Senate hearing, as well as the administrative hearing held by the EPA.

UPDATE: I have an NRO column on the waiver issue here.

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California Waiver Hearing:
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Doctrinalism and the Legal Academy: Both Larry Tribe and Jack Balkin have posted very interesting responses to Einer Elhauge's guest post on the "death of doctrinalism," and I wanted to point them out and also offer a few thoughts of my own. In particular:

  1. If you define doctrinalism as meaning scholarship that is 100% descriptive, then that has been dead for a really long time (if it was ever alive). Even the great treatises of old were much more than descriptive works. They generally tried to take a complex and chaotic field of law and impose a normative order that owed much to the author's worldview. Sure, the treatises dressed up the author's opinion as if it were "divining the law," just like many trendy law review articles today dress up the author's opinion as "legal theory." (In the case of law review articles, the usual trick is for the author to pick a "theory" that matches his personal opinions; the article then argues that good result A is compelled by an application of grand theory B, which sounds much better than saying the author just kinda likes it.) But despite that, much of the underlying contribution was normative.

  2. If you define doctrinalism as meaning scholarship that takes doctrine seriously on its way to making other points, then I would say that the legal academy has a conflicted attitude towards it. On one hand, doctrine often provides a point of depature. It's hard to say how the law should change if you don't actually know what the law is and how it works in practice. Where doctrine is particularly new or unsettled, a really careful doctrinal analysis can make the difference between a thoughtful contribution and a bunch of b.s. On the other hand, there is anxiety in some corners that too much discussion of doctrine signals a limited imagination. An excessive concern with everyday reality suggests an insufficient engagement with deeper thoughts. From that perspective, engagement with doctrine is sort of like telling a Indy rock hipster that you listen to Billy Joel: In and of itself it may be fine, but dear Lord, what does it say about your priorities?

  3. As for Professor Elhauge's claim that constitutional law is "the least intellectually respected among law professors," I find that claim puzzling. I haven't encountered that view, as many of the biggest names in legal academia are con law profs. Of course, there are big names that a lot of people think are pretty vacuous, but that goes along with the territory of being a field with big names.

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Virginia Law Review In Brief on Mass. v. EPA:

The Virginia Law Review has just posted two essays evaluating the Supreme Court's landmark environmental decision in Massachusetts v. EPA for its InBrief online magazine, with a third to follow shortly. In the first essay, Virginia's Jonathan Cannon, who served as General Counsel of the Environmental Protection Agency during the Clinton Administration, argues the decision was an "enormous, if narrow, victory for environmentalists." Cannon writes:

he holding defines a major new area of responsibility for EPA and requires the Agency to review this and other requests for regulation of greenhouse gas emissions under limits set by the Court. The Court’s opinion also reflects sympathy with environmentalist beliefs and values to an extent rarely, if ever, seen in the Court’s environmental cases. This cultural or symbolic significance of Mass. v. EPA is, for me, its most remarkable feature . . .

In the second essay, administrative law guru Ronald Cass argues the decision could dramatically rework many aspects of administrative law, and not for the better. Writes Cass:

In their eagerness to promote government action to address global warming, the Justices stretch, twist, and torture administrative law doctrines to avoid the inconvenient truth that this is not a matter on which judges have any real role to play.

My own contribution to the Virginia InBrief discussion is due to be posted on the site shortly. In the meantime, a copy is available here on SSRN. The abstract follows:

The surprise in Massachusetts v. EPA was not that it was a close, hotly contested case. Rather, the surprise was the facility and ease with which the Court majority dispatched opposing arguments and redefined prior precedents. Not content to widen doctrines on the margins, Justice Stevens' majority opinion blazed a new path through the law of standing and unearthed newfound regulatory authority for the United States Environmental Protection Agency. Under the Court's new interpretation, the Clean Air Act (“CAA” or “the Act”) provides EPA with roving authority, if not responsibility, to regulate any substance capable of causing or contributing to environmental harm in the atmosphere. The federal government did much to facilitate this course, as the Environmental Protection Agency has been anything but a reluctant regulator, and as such the present administration was not the most compelling advocate for its own cause. Now that EPA has authority to regulate greenhouse gases, regulatory controls on motor vehicles are sure to follow, as will regulations on other emission sources. In time, however, Massachusetts v. EPA may come to stand for more than the simple proposition that Congress delegated authority to regulate greenhouse gases under the Clean Air Act. It may herald in a new era of state-sponsored litigation, environmental standing, and statutory interpretation - and yet still do little to cool down a warming planet.

UPDATE: My essay is now up on the InBrief site here.

Seeking Input from People Who Have Actually Menstruated:

Commenter Triet writes, in the anti-menstruation pill post:

It's been amazing seeing my wife and other women deal with her first pregnancy. Immediately upon announcing to the world she's pregnant, my wife was part of the "in crowd." Every mother--whether she knew my wife well or not--could smile and talk about morning sickness, or finding out the baby's gender, or feeling bloated, etc.

So, it is not aesthetic. Humanity derives meaning from shared experiences, and deleting one of the most universal and central of all female experiences can subtract perceived meaning from people's lives. In that regard it is very important.

Humanity does derive meaning from some shared experiences — but not all. Shared experience that you bond over: pregnancy. Shared experiences that you don't bond over: hangnails, nearsightedness, tooth decay. Shared experiences that people sometimes seem to bond over, but that I'm sure they'd be much better off without: various illnesses or operations that some elderly people stereotypically discuss with each other, but which they'd be glad to avoid without any worry about lost "meaning."

My sense is that menstruation falls within the second (or, less likely, third) category of experiences rather than the first. To many women, pregnancy is a harbinger of their joy in becoming a mother, an affirmation of their fertility (something many women worry about before they become pregnant), a sign of a growing bond with their husbands, and more. Menstruation, it seems to me, is far removed from that: While it is part of the same system that may eventually lead to pregnancy, it doesn't have the directness of connection to a growing baby, it doesn't prove fertility in a way that would ease the woman's fears, it doesn't strengthen the marriage, and in general it lacks very little redeeming value.

But let's hear from some people who actually menstruate, and have been pregnant. When you menstruate, do you feel that you're part of the "in crowd"? If you chose to stop -- not because of menopause, which is a marker of age and of lost fertility, but voluntarily and reversibly -- would you feel "out"? Do you smile and talk to your friends about the cramps, the mood swings, and the like? Do you feel you derive meaning from the fact that you share menstruation as an experience with other women? Would you feel meaning subtracted if you stopped menstruating, because menstruation is so "central" a "female experience[]"? Do you find menstruation to be similar to pregnancy in any emotionally positive way?

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Ann Althouse blogs about this — apparently the pill just got approved — and the discussion in her comments is very interesting.

My thought: It's perfectly sensible to be concerned about the pill's safety, even despite the approval. But some of the other concerns strike me as entirely misguided. Here's one comment (from commenter "galvanized"), which exemplifies this:

[M]enstruation, like childbirth, is just part of being a woman. If another woman would want to escape it, then sure, she should go for it. But, not being punny, it just wouldn't feel right to sidestep it.

Secondly, we're a pill culture. We now have yet another pill for another condition. I think we're way too dependent on medications. The further one goes from what is natural then the more chance for negative effects. Also, just doesn't feel right to pop a pill for this reason....

It seems that superfluous medicating is right up there with cosmetic surgery. I think that this pill is really a byproduct of our culture's quest to be aesthetically perfect, a spillover from magazine covers and television. So, yes, I do consider this a feminist issue, a suppression of sorts even if it is women doing it to themselves. I don't want my daughter to think that anything that occurs in association with being female is disgusting and should be eradicated. It's negating a not-so-pretty part of femininity. Maybe androgyny is what we're after?

The third is that there, as always, could be longterm effects that aren't known yet. Plus, it's more money for big pharm companies. That's all I need to know. Big business has made our culture pill-dependent, and we buy it up....

Again, concerns about long-term health effects are quite sensible. But I don't see any justification for the feeling that it's not "right to sidestep" something that's "part of being a woman." I suppose it could be some esthetic judgment that argument won't much drive; but setting aside esthetics, why on earth should we want to accept natural but painful or unpleasant things?

Disease is a part of being a human. Headaches are part of being a human. Excruciating pain in childbirth is part of being a woman. They are bad parts.

A good part of being a human is being able to prevent disease and to ease pain. Why embrace the harmful, painful, or uncomfortable parts of human nature, and reject those parts of human nature — our species' intelligence and resulting scientific acumen — that diminish harm, pain, and discomfort?

The cosmetic surgery analogy seems quite flawed, too. I have nothing against cosmetic surgery myself, so long as the health risks don't outweigh the benefits. At least, however, I can see the argument that instead of changing our appearance we should change our mentality, and stop caring as much about appearances.

But menstruation isn't about appearance. Women don't dislike it chiefly because it "occurs in association with being female," because it's "disgusting," or because it's "not-so-pretty." They dislike because of the cramps, because of the mood swings, because of the hassle. (I suppose that the desire not to get blood on one's clothes, and the concomitant need to use various products to prevent that, can be cast as a question about what's "disgusting" or "pretty," but both men and women generally and understandably don't like bloodstains of whatever sort. And in any case, as I understand it the physical discomfort associated with menstruation is a much greater concern for most women than just the universal desire not to get blood on things.)

And, of course, "it's more money for big pharm companies. That's all I need to know." Of course, what more would anyone need to know? If you want to decide whether some product is good, don't ask whether it eases your pain, protects your health, or whatever else. Ask whether some business you don't like will make money from your buying the product. Have cramps, and when you do, feel good about it: "I'm in pain, but at least Big Pharma is making less of a profit." Brilliant.

Thanks to InstaPundit for the pointer.

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The Exxon Valdez Case Heading for the Supreme Court?

Judge Kozinski's dissent from denial of rehearing en banc makes a pretty persuasive case for Supreme Court review. According to the dissent, both U.S. Supreme Court admiralty law precedent and the law of other circuits "protect[s] ship owners from liability for punitive damages based solely on the fault of captain and crew." The Ninth Circuit is apparently the one outlier.

This sort of circuit split, coupled with the importance of the issue -- both in this $2.5 billion case and in the multi-billion-dollar shipping business generally -- should make Supreme Court review quite likely (and appropriate). If the Solicitor General's office weighs in with a brief supporting review, that would further increase the likelihood of certiorari. (Judge Kozinski also argues that there's an intracircuit split on the legal question, with different Ninth Circuit panel decisions resolving the issue in different ways. The presence of the intracircuit split is not itself much of a factor in favor of Supreme Court review, though it should have been a factor in favor of en banc review.)

I know very little about admiralty law, which is why I make clear here that I am relying on Judge Kozinski's opinion. But I have found Judge Kozinski's work to be extremely trustworthy (and I know the man well, having worked for him). If he says there's a square split here, that's good enough for me.

Check out, incidentally, how the earlier panel decision in this case explains its resolution of the intracircuit split, by reasoning that Pacific Mutual Life Ins. Co. v. Haslip -- a 1991 decision about the constitutionality of punitive damages, which said nothing about admiralty law principles -- implicitly superseded preexisting precedent on the admiralty law question. 270 F.3d 1215, 1235-36 (9th Cir. 2001). That's the one part of the Kozinski opinion I did check out, simply because I found it interesting, and Kozinski's criticism of the earlier panel decision strikes me as completely apt.

Thanks to How Appealing for the pointer.

Artur Davis: Based on the parts I've seen, the best questioner in the Monica Goodling procedings so far has been Artur Davis, a former AUSA. He's good. One other comitttee member gave up her time to Davis, which is a smart move. Very interesting testimony from Goodling right now, actually, although it's hard to put all the pieces together watching it on the fly.

UPDATE: This is the testimony I had in mind. According to Goodling, she talked to Gonzales about getting a transfer because of the scandal. At one point, Gonzales started telling her his recollection of what happened, and then he asked her if she had "any reaction" to his recollection. According to Goodling, she felt uncomfortable with the question because she figured their conversation would become public at some point, so she just didn't say anything.

Stanley Fish on the Tufts Case Involving Blasphemous Speech and Harshly Anti-Affirmative-Action Speech:

From the Tufts Daily:

When distinguishing offensive from harassing content, some experts brought up the Hustler Magazine v. Falwell case. In this 1988 Supreme Court decision, prominent evangelist Jerry Falwell sued the racy Hustler magazine for running a parody liquor ad about him having drunken sex with his mother in an outhouse. Falwell sued for libel and intentional infliction of emotional distress, but the Court ruled 8-0 in the magazine's favor, upholding its right to publish the parody.

"The Falwell case makes the point that satire, joking and caricature are part of the free flow of ideas in a democratic society," said Stanley Fish, who writes the "Think Again" blog for the New York Times on education, politics and society. He is a professor of law at Miami's Florida International University and dean emeritus of the College of Liberal Arts and Sciences at the University of Illinois at Chicago.

"Presumably, some people in the university who are members of minority groups would have felt insulted," he said of responses to the Source articles. "But being insulted doesn't mean you have any legal redress against those who have offended you."

To this extent, he said that the administration should not have even denounced the carol, as it did immediately after its publication.

"They're saying, 'We're good hearted. We're good people. We're on the right side, even though by law we cannot penalize them,'" he said. "[But] the university is not in the business ... of policing the views or sentiments of its students. That's not what it's supposed to doing. It's supposed to be delivering instruction and equipping them with the analytical tools necessary to perform research."

I don't share Fish's view that the University shouldn't have denounced the anti-affirmative-action carol, which struck me as cruel, offensive, and exaggerated in a context where such exaggeration is rude. It seems to me quite proper that leading members of a community, such as university administrators, would speak up against such rudeness and in defense of those who were being insulted.

But I'm glad to hear that Fish is apparently criticizing the disciplinary action against the student newspaper. I'm not sure how this fits into Fish's complex views about free speech (see, for instance, the closing paragraphs of this interview). But I'm pleased to hear his current position (and his willingness to speak based on it), whether it is consistent with his past views or is a departure from those views.

All Related Posts (on one page) | Some Related Posts:

Governments -- Don't "Inflexibly Cling[] To Free Speech ... With Absolute Disregard for Religious Feelings":
McLean's Article on the Campaign to Create an International Law Norm Banning "Defamation of Religion":
Opinion Preliminarily Enjoining SFSU Civility Code...
The New Anti-Blasphemy Laws:
Stanley Fish on the Tufts Case Involving Blasphemous Speech and Harshly Anti-Affirmative-Action Speech:
FIRE's Greg Lukianoff on the Tufts Punishment of Blasphemy:...
The Effort to Ban "Defamation of Religion" and the Democracy Deficit of International Law:
Baltimore Hebrew University Professor Supporting Legal Penalties for "Negative Depiction of Religion":
A New International Law "Value" -- Freedom from "Defamation of Religions"?

Death Penalty for Child Rape:

Yesterday. the Louisiana Supreme Court upheld the death penalty for rape of a child under 12. In Coker v. Georgia (1977), the Supreme Court held that the death penalty for rape was unconstitutional. Many commentators had interpreted the reasoning of Coker as precluding the death penalty for anything short of murder and possibly some national security offenses (treason, espionage, and the like). But Coker spoke expressly and repeatedly of rape of an adult, so the question of the death penalty for rape of a child remains open.

Yesterday's decision follows the lead of a 1996 Louisiana Supreme Court case (State v. Wilson), but Wilson decided the question in the context of a pretrial motion, and the U.S. Supreme Court understandably -- given its general preference not to review decisions before a final judgment -- refused to hear the case. The new case, State v. Kennedy, upholds a death sentence, so I suspect the Supreme Court will agree to consider the issue.

The Louisiana opinion is long and detailed, and I can't do it justice with a capsule summary; but here's a particularly interesting passage that tries to apply the U.S. Supreme Court's death penalty methodology that was developed in the recent cases having to do with the death penalty for juveniles and the mentally retarded (one paragraph break added):

Overall, it appears that approximately 30% of capital jurisdictions (15 of 38, including federal) authorize some form of non-homicide capital punishment, a showing strong enough to suggest that there may be no consensus one way or the other on whether death is an appropriate punishment for any crime which does not result in the death of the victim. However, when the direction of change is considered, clearly the direction is towards the imposition of capital punishment for non-homicide crimes. As stated earlier, the number of jurisdictions allowing the death penalty for non-homicide crimes more than doubled between 1993 and 1997.

Most important to our analysis is the fact that four states have enacted laws which capitalize child rape since Wilson, evidencing movement in the direction that this Court thought possible back in 1996 when Wilson was decided. Looked at another way, even after the Supreme Court decided in Coker that the death penalty for rape of an adult woman was unconstitutional, five states nevertheless have capitalized child rape since then, a number which the Supreme Court held in Roper was sufficient to indicate a new consensus regarding society’s standards of decency towards the juvenile death penalty.

In fact, the trend is more compelling than in Roper, given the Roper Court’s reliance on five states abolishing the death penalty for juveniles after Stanford held that the death penalty for juveniles was constitutional. Here, we have five states enacting the death penalty for child rape in spite of Coker, which held that the death penalty for rape of an adult was unconstitutional. Furthermore, it is likely that the ambiguity over whether Coker applies to all rape or just adult rape has left other states unsure of whether the death penalty for child rape is constitutional. These states may just be taking a “wait and see” attitude until the Supreme Court rules on the precise issue. Thus, the fact that only five states capitalize child rape should not pose an obstacle to the Court’s consideration of the issue, given the direction of change, i.e, an increase of five since Coker....

[Moreover,] it can be said for child rapists as a class of offenders that, unlike the young or mentally retarded, they share no common characteristic tending to mitigate the moral culpability of their crimes. Contrary to the mentally retarded and juvenile offenders, execution of child rapists will serve the goals of deterrence and retribution just as well as execution of first-degree murderers would. Our state legislature, and this Court, have determined this category of aggravated rapist to be among those deserving of the death penalty, and, short of a first-degree murderer, we can think of no other non-homicide crime more deserving.

Monica Goodling Testimony: I watched about an hour of Monica Goodling's testimony before the House Judiciary Committee this morning, and I thought it was pretty uneventful so far. Based on what I saw, Goodling is a far more skillful witness than the House members are questioners. Most of the Democratic House members are just reading questions off a script prepared by staffers, and they don't seem comfortable enough to go off-script to pursue something Goodling said. Meanwhile, Goodling comes off as a very skillful witness. She often gives a partial answer to the question that is technically true but very vague, and then turns the focus elsewhere and starts talking for a while to help run out the clock.

All in all, this morning's testimony went much better for the Administration than I would have expected. In any event, if you're interested in watching the afternoon's testimony, which should resume shortly, you can watch it live here via RealPlayer.

Crime to Use Coffee Shop Wi-Fi Without Entering the Coffee Shop?: CNET news has a story of a Michigan man who apparently pled guilty to violating Michigan's computer crime statute for sitting outside a coffee shop and using the shop's wi-fi to surf the web:

  Each day around lunch time, Sam Peterson would drive to the Union Street Cafe, park his car and--without actually entering the coffee shop--check his e-mail and surf the Net. His ritual raised the suspicions of Police Chief Andrew Milanowski, who approached him and asked what he was doing. Peterson, probably not realizing that his actions constituted a crime, freely admitted what he was doing.
  "I knew that the Union Street had Wi-Fi. I just went down and checked my e-mail and didn't see a problem with that," Peterson told a WOOD reporter.
  Milanowski didn't immediately cite or arrest Peterson, mostly because he wasn't certain a crime had been committed. "I had a feeling a law was being broken," the chief said. . . .
  Milanowski, who eventually swore out a warrant for Peterson, doesn't believe Milanowski knew he was breaking the law. "In my opinion, probably not. Most people probably don't."
  Indeed, neither did Donna May, the owner of the Union Street Cafe. "I didn't know it was really illegal, either," she told the TV station. "If he would have come in (to the coffee shop), it would have been fine."

Peterson was charged and apparently pled guilty and was sentenced for violating Michigan's computer crime statute. According to this story, Peterson's actual punishment was very light: he was given a $400 fine and 40 hours of community service, with the understanding that if he stays out of trouble the conviction will be erased from his record.

But did Peterson actually commit a crime? The answer hinges on Michigan's somewhat unique computer crime law, and in particular on its definition of the meaning of "authorization." Like every state — and like the federal government — Michigan has an unauthorized access statute that serves as the basic computer crime law. (For my take on these statutes, see this article.) Here's Michigan's law, Section 752.795(a):

A person shall not intentionally and without authorization or by exceeding valid authorization . . . Access or cause access to be made to a computer program, computer, computer system, or computer network to acquire, alter, damage, delete, or destroy property or otherwise use the service of a computer program, computer, computer system, or computer network.

So far, this is a pretty standard unauthorized access statute. But Michigan does something that is pretty unique; it has a statutory presumption against access being authorized:

  It is a rebuttable presumption in a prosecution for a violation of section 5 that the person did not have authorization from the owner, system operator, or other person who has authority from the owner or system operator to grant permission to access the computer program, computer, computer system, or computer network or has exceeded authorization unless 1 or more of the following circumstances existed at the time of access:
  (a) Written or oral permission was granted by the owner, system operator, or other person who has authority from the owner or system operator to grant permission of the accessed computer program, computer, computer system, or computer network.
  (b) The accessed computer program, computer, computer system, or computer network had a pre-programmed access procedure that would display a bulletin, command, or other message before access was achieved that a reasonable person would believe identified the computer program, computer, computer system, or computer network as within the public domain.
  (c) Access was achieved without the use of a set of instructions, code, or computer program that bypasses, defrauds, or otherwise circumvents the pre-programmed access procedure for the computer program, computer, computer system, or computer network.

If I had been Peterson's attorney, I would have had a bunch of arguments in his defense. First, I would argue that having a statutory presumption is unconstitutional under Sandstrom v. Montana, 442 U.S. 510 (1979). A presumption that a material element of a criminal statute has been satisfied violates the Due Process clause, which requires the government to provide each element beyond a reasonable doubt. Id. at 524. Second, I would argue that even if the presumption is constitutional, it doesn't apply here: under (c), "[a]ccess was achieved without the use of a set of instructions, code, or computer program that bypasses, defrauds, or otherwise circumvents the pre-programmed access procedure for the computer program, computer, computer system, or computer network." And finally, the access was not unauthorized or in excess of authorization because the coffee shop intentionally made the wi-fi available to anyone. What's the rule — no hopping on wifi from a coffee shop unless you enter the shop? Unless you actually buy something? What if you're outside waiting for a friend to join you for a latte, but you haven't gone in yet? Where do such rules come from, and what notice does a defendant have before being held criminally liable? I've written before about how unauthorized access statutes threaten to punish an incredible amount of conduct online, and this seems like the latest evidence in support of the point.

As best I can tell, though, these arguments weren't tried. But then it's hard to tell from the news articles, which seem pretty sketchy on the legal side of this. If you happen to know more details about the case, please consider explaining them in the comment thread.

Taxation without Representation: The Policy of the DC Government:

This afternoon the U.S. Senate Judiciary Committee is holding a hearing on granting the District of Columbia voting rights in the U.S. House of Representatives; the hearing will be webcast. As usual, D.C.'s campaign is using the slogan "Ending Taxation without Representation." As Paul Blackman and I detailed in a 2003 article in National Review Online, "taxation without representation" is in fact a cherished objective of the extremely incompetent D.C. government, as the D.C. government seeks to impose a commuter tax on residents of Maryland and Virginia, and engages in various other schemes to take money from people who cannot vote in D.C.

The Death of Doctrinalism and Its Implications for the Entry-Level Job Market at Law Schools.

Doctrinalism is dead. One cannot get a job at a top law school nowadays as a doctrinal scholar. Or, to put it more precisely, you have to be ten times as good to get a job as a doctrinal scholar as to get one as an interdisciplinary scholar. And even then you cannot get hired at Yale.

Now by doctrinalism I do not mean any scholarship that considers doctrine or takes it seriously. I rather mean the sort of scholarship that simply describes doctrine or that assesses doctrine based solely on formalistic grounds having to do with the logic of it internal structure. It would not, in my book, be doctrinalism to analyze the functional theories that could explain some doctrine or lead to reform of it, or to measure the consequences of doctrine. Heck, that is what I do, and I am not about to declare myself obsolete.

Doctrinalism is dead for a very good reason. It is either too easy or mistaken. The variety of doctrinalism that is too easy consists of the purely descriptive articles. To be sure, good descriptive legal articles require hard work by very-smart, highly-trained lawyers. But the problem is that those sorts of persons are in relatively high supply compared to those who can come up with original ideas or empirical findings, so that such work is not going to get much credit in legal academia, even though it can be quite useful.

The part that is mistaken is the variety of doctrinalism that tries to explain legal results or predict future decisions based purely on formalistic logic. Devoid of any underlying functional theory, these theories turn out to offer little real explanation and serve as poor predictors. The formalisms are just too easy to spin in multiple directions, and we need some underlying theory to explain where the fault lines are likely to be and how judges and lawmakers are likely to be inclined to resolve them.

The one odd exception is Constitutional Law, where doctrinalism still appears to be alive and kicking. I suppose the reason for its exceptional status is that we have nine old persons on the Supreme Court who seem persuaded by doctrinal arguments and have immense power to impose results on the rest of us through constitutional decisions, however poor their underlying policy analysis.

But for the rest of us, the seriousness with which many constitutional scholars still take the task of parsing the precise language of Supreme Court cases that were largely written by law clerks is fairly astonishing and more than a little quaint. Thus, we have the oddity that the marquee legal subject, constitutional law, is also the least intellectually respected among law professors because it is the most doctrinal.

In any event, no law school aims to hire constitutional law scholars on the entry-level job market, so trying to make it as a doctrinalist is a nonstarter. But this raises a problem, because much of law school is spent becoming trained in doing doctrinal analysis. All the good professors also teach theory, but usually not enough theory to make students well-trained in doing the sort of interdisciplinary scholarship one needs to do to get a professorship at a top law school. And as I mentioned in my last post, much of the modern action is in empirical analysis of law, and practically none of us teach how to do that in our law classes.

So how can one overcome this entry barrier? One way is to get both a JD and a PhD. This has described the lion’s share of entry level hires made at Harvard recently. But while this has been a successful approach for us, it creates problems as a systemic approach because very few people get both a JD and a PhD, and whenever one limits the pool of persons from which one picks, one may not get persons with as much raw talent and creativity as if one drew from a broader pool. Much of the most interesting work of the past generation was, after all, done by persons who had a JD but no PhD. One would not want to screen out the next generation’s Richard Posner, Cass Sunstein, Frank Michelman, Mark Roe, Bill Stuntz, Ronald Dworkin, Larry Lessig, Guido Calabresi, Bob Ellickson, Bill Eskridge, Alan Schwartz, or Bruce Ackerman, just because they had no PhD. At least I wouldn’t.

The solution, towards which law schools are steadily moving, is expanding programs for fellowships in law. These fellowships were nonexistent in my time, when people like me got law jobs at top schools like Berkeley based on a job talk jotted down on notecards late at night after working as a clerk. (Not everything was tougher in the old days, despite what us old fogeys like to say.) Since then, these fellowships have exploded.

I run one program, the Harvard Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, that will have eight academic fellows next year, earning $60,000 per year for developing their own scholarship in this crucial area, where the supply of academic candidates has historically fallen far short of law school demand. Harvard’s Climenko Fellowship adds another fourteen. There are Olin Fellows, Berkman Fellows, and Houston fellows and probably many more I am missing. And that is just at Harvard.

These fellowships provide a vital opportunity for aspiring legal academics to steep themselves enough in modern legal theory or empirical analysis to be able to demonstrate some ability to do the sort of nondoctrinal interdisciplinary scholarship the modern academic law market demands. In the future, look for these fellowships to become more and more regularized into a form of quasi-necessary post-doc, with law schools looking mainly to them and to PhD programs for their entry level hires.

What, though, are the implications of the death of doctrinalism for the laterals market? That will be the subject of my posting tomorrow.

Related Posts (on one page):

Why All This Lateral Hiring By Elite Schools?
The Exploding Laterals Law School Market.
Doctrinalism and the Legal Academy:
The Death of Doctrinalism and Its Implications for the Entry-Level Job Market at Law Schools.
Sabermetrics and the Future of Legal Empirical Studies
Twombly -- The New Supreme Court Antitrust Conspiracy Case
Will Basic Legal Subjects Become Globalized?
Einer Elhauge, Guest-Blogging:

Play-by-Play of Habeas Hearing: Over at Firedoglake, Christy Hardin Smith summarizes today's Senate Judiciary Committee hearing on habeas corpus. (One correction, though: Senator Leahy's questions after my testimony were asked to and answered by either Guter or Taft -- I don't remember which -- rather than me.) The written testimony of each of the various witnesses is now available here.

A Troubling Passage

from Bull v. U.S. Congress, 2007 WL 1462213 (D.S.C. May 16, 2007):

The first three quarters of the plaintiff's brief (Entry No. 1-5) are characterized by what some courts have described as “buzzwords” or “gibberish.” See Coghlan v. Starkey, 852 F.2d 806, 812-816 (5th Cir.1988)(collecting cases); Ramos v. Thornburg, 732 F.Supp. 696, 702 (E.D.Texas 1989); Stafford v. Ellis, 1992 U.S.Dist. LEXIS® 12007 (D.Colo.1992); FN10 Yocum v. Summers, 1991 U.S.Dist. LEXIS® 12091, 1991 WESTLAW® 171389 (N.D.Ill.1991); McCutcheon v. New York Stock Exchange, 1989 U.S. Dist. LEXIS® 8141, 1989 WESTLAW® 82007 (N.D.Ill., July 10, 1989); Peebles v. National Collegiate Athletic Association, 1988 U.S.Dist. LEXIS® 17247 (D.S.C., November 1, 1988)(magistrate judge's Report and Recommendation) ....

Not for the substance -- for those awful registered trademark symbols. Fortunately, it doesn't look like WESTLAW is adding the symbols itself; a quick search suggests that only a few recent cases include them, so presumably it's the judge's decision.

And it's not a good decision, I think: It needlessly draws the reader's attention to something that's as far from the substance of the case as possible. Nor is there any legal requirement to use these symbols in writing opinions, briefs, law review articles, and the like. Why would the court do such a thing?

Anti-Illegal-Immigration Opinion Article in High School Newspaper Protected by California Law:

A California statute, Cal. Educ. Code § 48907, protects student newspapers at public schools — not just underground entirely student-run ones, but also the school-funded and journalism-class-run ones — from censorship by the administration. There are exceptions, but they are limited to speech that is "obscene, libelous, or slanderous," or "so incites students as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations, or the substantial disruption of the orderly operation of the school." In this, California law provides much more protection than does the First Amendment, which generally doesn't interfere with public school administratos' decisions about what goes into school newspapers (see Hazelwood School District v. Kuhlmeier).

Andrew Smith, who was a high school student at Novato High School, wrote an "opinion editorial on illegal immigration" which said, among other things:

• “I’ll even bet that if I took a stroll through the Canal district in San Rafael that I would find a lot of people that would answer a question of mine with ‘que?’, meaning that they don’t speak English and don’t know what the heck I’m talking about.”
• “Seems to me that the only reason why they can’t speak English is because they are illegal.”
• “40% of all immigrants in America live in California . . . because Mexico is right across the border, comprende?”
• “[I]f they can’t legally work, they have to make money illegal way [sic]. This might include drug dealing, robbery, or even welfare. Others prefer to work with manual labor while being paid under the table tax free.”
• “If a person looks suspicious then just stop them and ask a few questions, and if they answer ‘que?’, detain them and see if they are legal.”
• “Others seem to think that there should be a huge wall along the Mexican/U.S. border.”
• “Criminals usually flee here in order to escape their punishment.”

The high school principal cleared the newspaper for publication (she apparently had the job of reviewing the newspaper "for spelling and grammar" and for violations of various policies). But "the next day the Principal was approached by four or five Latino parents, who were upset and wanted to talk to her about 'Immigration.'" After meeting with the parents, the Principal called the District Superintendent, who "immediately instructed [the principal] to retract any remaining copies of The Buzz. The Principal directed the journalism teacher to collect the remaining copies of the newspaper."

Many other things followed, including (1) a school assembly at which critics of the column expressed their critical views, (2) a letter from the school condemning the column that was sent to all parents, (3) a Latino student's "threaten[ing] to 'kick [Andrew's ass]," (4) a fight with another Latino student in which Smith got a chipped tooth, and (5) a death threat against Smith from that second Latino student. For more details (and there are a lot), see the opinion linked to below.

Just yesterday, the California Court of Appeal handed down a decision holding that the retracting of the newspaper violated California law. The court of appeal rejected the trial court's conclusion that speech that is likely to cause a violent reaction is unprotected because it fits within the "so incites students" exception. Rather, the court of appeal held, "a school may not prohibit student speech simply because it presents controversial ideas and opponents of the speech are likely to cause disruption. Schools may only prohibit speech that incites disruption, either because it specifically calls for a disturbance or because the manner of expression (as opposed to the content of the ideas) is so inflammatory that the speech itself provokes the disturbance."

The school did not violate the law, the court of appeal held, by expressing its disagreement with Smith's views, or by setting up a forum at which others could express their disagreement. "None of the cases cited by plaintiffs support the proposition that a school infringes on a student’s right to free speech merely by facilitating a peaceful avenue for self-expression by persons upset by the student’s speech. We decline to adopt a rule contrary to our nation’s traditions of open debate.... We conclude the District’s efforts to give the protestors a forum, to acknowledge the legitimacy of their reactions, and to distance itself from Smith’s viewpoint was not a censure or discipline of Smith."

But it did violate the law by ordering the retracting of remaining copies of the newspaper. Even if no copies were actually retracted, because all had been distributed, the order would still have impermissibly deterred Smith from trying to distribute future copies of the material.

The decision strikes me as a sound interpretation of the California statute. I think the Court was right to say that the First Amendment doesn't bar school administrators from controlling what is published in the school newspaper. It follows that the First Amendment also doesn't bar school administrators from trying to retract copies of the newspaper when they change their minds about whether something should have been published.

But the California Legislature has opted to provide student newspapers more protection that the First Amendment requires. And Smith's article was entitled to protection under that statute.

Congratulations to the Pacific Legal Foundation, which represented Smith, and to my friend and former student Stephanie Christensen, who filed a brief — together with the ACLU of Southern California, the Student Press Law Center, and some others — in support of Smith. [UPDATE: D'oh! Forgot to congratulate the Pacific Legal Foundation when I first posted this; now fixed.]

Don't Try This on an Airplane:

Check out this ShockWave file. Thanks to MyLOL.net and GeekPress for the pointer. No, I'm not actually suggesting you try this.

The Peculiar Story of United States v. Miller:

A fine new article forthcoming in the NYU Journal of Law & Liberty provides fresh insights on the Supreme Court's last major gun control case, U.S. v. Miller (1939). For example, he shows that the case was brought by the federal government as a test case to quell Second Amendment popular opposition to the Attorney General's efforts to create federal handgun control. The federal district judge who wrote the one-sentence opinion declaring the National Firearms Act to violate the Second Amendment was a gun control advocate with strong political connections. The prosecution of Miller was perfect as a government-initiated test case, since Miller had an established record as "a pliable snitch" who would cooperate with the government, ensuring that the Supreme Court saw no meaningful opposition to the government's position.

Frye also argues that although Miller was written by the now-reviled Justice McReynolds, the meaning of the opinion is fairly clear, recognizing the individual right to arms as a common law right guaranteed by the Second Amendment, while still permitting reasonable gun controls.

The Crime Against Kansas:

On this day in history, May 22, 1856, United States Representative Preston Brooks criminally attacked Senator Charles Sumner on the floor of the Senate, beating Sumner on the head with a heavy cane until the cane broke, and incapacitating Sumner for four years. South Carolina Rep. Preston Brooks was the nephew of South Carolina Senator A.P. Butler, who had been sharply criticized by Massachusetts' Sumner in a May 19-20 speech, "The Crime Against Kansas."

Sumner had declared that while Butler "believes himself a chivalrous knight, with sentiments of honor and courage," he "has chosen a mistress" who is "the harlot slavery."

Among the elements of the crime against Kansas was that guns belonging to the free-soil settlers had been confiscated by the pro-slavery territorial government. Senator A.P. Butler had allegedly remarked that the people of Kansas should be disarmed of their Sharps rifles. (The Sharps rifles were the main type which were being sent to the free-soilers by anti-slavery groups in the North, such as the Massachusetts Emigrant Aid Society, led by Rev. Henry Ward Beecher.)

Sumner thundered:

Really, sir, has it come to this? The rifle has ever been the companion of the pioneer and, under God, his tutelary protector against the red man and the beast of the forest. Never was this efficient weapon more needed in just self-defence, than now in Kansas, and at least one article in our National Constitution must be blotted out, before the complete right to it can in any way be impeached. And yet such is the madness of the hour, that, in defiance of the solemn guaranty, embodied in the Amendments to the Constitution, that "the right of the people to keep and bear arms shall not be infringed," the people of Kansas have been arraigned for keeping and bearing them, and the Senator from South Carolina has had the face to say openly, on this floor, that they should be disarmed--of course, that the fanatics of Slavery, his allies and constituents, may meet no impediment. Sir, the Senator is venerable . . . but neither his years, nor his position, past or present, can give respectability to the demand he has made, or save him from indignant condemnation, when, to compass the wretched purposes of a wretched cause, he thus proposes to trample on one of the plainest provisions of constitutional liberty.

Senator Butler indignantly replied that he had never proposed disarming the people of Kansas. He had simply proposed bringing before appropriate judicial authority "an organized body" who possessed Sharps rifles.

But even if Senator Butler could claim that his remarks were misunderstood, antislavery Congressmen had no doubt about the atrocities being perpetrated in Kansas. On May 21, 1856, the "Sack of Lawrence" took place, in which the Kansas territorial militia, bearing arms supplied by the United States government and under the command of a deputy federal marshal, confiscated the guns of a group of free-soilers. On June 30, 1856, Representative G.A. Grow of Pennsylvania listed the constitutional abuses of the proslavery government in Kansas, including: "With the shout of law and order you disarm the citizen, while the Constitution of his country declares that the right 'to keep and bear arms shall not be infringed.'".

The 1856 national Republican Convention resolved that "the dearest constitutional rights of the people of Kansas have been fraudulently and violently taken from them . . . the rights of the people to keep and bear arms have been infringed."

The federal government, obviously, had done nothing to interfere with the official militia of the proslavery government in Kansas. Yet the Republicans still saw a violation of the Second Amendment: some of the state's citizens were being disarmed because they considered the current state government illegitimate.

There is no known evidence of any pro-slavery Democrats, or anyone else, defending the Sack of Lawrence or other arms confiscations on the grounds that the Second Amendment did not guarantee the right of individual citizens of Kansas to possess personal firearms for non-militia purposes.

Cyberspace Jurisdiction and the Dormant Commerce Clause: In response to my initial post on Hageseth v. Superior Court, my co-blogger David P. writes:

  The court is probably correct that the "traditionally applicable legal principles" permit it to assert jurisdiction over the defendant; the harder question is whether those "traditionally applicable legal principles" become utter nonsense in a networked world.
  The "traditionally applicable legal principle" here is what the court calls the "detrimental effects theory" of extraterritorial jurisdiction: if your actions outside the jurisdiction have harmful effects inside the jurisdiction, you're subject to the jurisdiction's criminal laws.
  This principle, I submit, doesn't make sense in a world in which the "effects' of all actions are felt instantaneously everywhere on the network; applying that principle leads to the conclusion that everyone is subject to everybody's criminal jurisdiction simultaneously, and I don't think that is a sensible conclusion for a global legal system.

  I disagree. In my view, the "traditionally applicable legal principle" here isn't the "detrimental effects theory," but rather an argument Hageseth did not make: the dormant commerce clause.

  Existing dormant commerce clause doctrine largely traces David's policy concerns, as it looks at the effect of one state's regulation on other states and considers the need for a single consistent regulatory scheme. If a state statute that regulates computer usage is read to have such broad extraterritorial scope, it may be invalided on dormant commerce clause grounds. See, e.g., American Libraries Ass'n. v. Pataki, 969 F.Supp. 160 (S.D.N.Y.1997). Notably, several defendants in Californian state computer crime cases have used such arguments. Examples testing the extraterritorial scope of California state Internet luring statutes include People v. Hsu, 82 Cal. App.4th 976 (Cal. App. 2000) and Hatch v. Superior Court, 94 Cal. Rptr. 2d 453 (Cal. Ct. App. 2000).

  In my view, the real issue in Hageseth isn't whether traditional legal principles become "utter nonsense" when applied to conduct "in cyberspace." The issue is identifying the right traditional legal principle, which in this case is the dormant commerce clause. My sense is that this body of law applies quite sensibly to online conduct just as it does to offline conduct.

Related Posts (on one page):

Cyberspace Jurisdiction and the Dormant Commerce Clause:
Jurisdiction in Cyberspace; A Different View
Hageseth v. Superior Court:

Brief Review of "Natural Causes":

I have just finished reading Natural Causes by Dan Hurley, an entertaining and informative look at the various degrees of fraud and flimflammery that go on in the supplement and vitamin industry. The book is marred only by Hurley's exaggeration of his case. He concludes that of all the products that fall within the heading of "dietary supplements," only vitamin D and omega-3 fatty acids derived from fish oil appear to be safe and effective. Of course, safe and effective are relative terms, but I can think of quite a few additional examples off the top of my head: fiber supplements, stevia the as a sugar substitute, vitamin C for those who don't get it in their regular diet, digestive enzymes, acidophilus and other cultures, calcium, and for that matter, I think even Gatorade has been shown to help prevent dehydration. There is certainly enough foolishness and fraud in the supplement and vitamin industries that there is no need for Hurley to overstate things to sell his book, and his thesis.

Jurisdiction in Cyberspace; A Different View

Orin has already blogged this, but it's worth another look.
The defendant, located in Colorado, issued an online prescription to a patient in California. He never actually communicated directly with the patient; the patient had filled out an online questionnaire distributed at a website physically located outside of the US; the website was owned and operated by a Florida corporation, which forwarded the questionnaire to the defendant, and to whom the defendant directed his response; the Florida company then sent to a pharmacy in Louisiana, which shipped out the medication to the California patient.

The defendant was then charged, in California, with "practicing medicine without a license . . . in San Mateo County, California" (where the patient was location and where the medicine was shipped). The defendant argued that California could not exercise jurisdiction over him, or charge him with practicing medicine "in California," because he had never set foot in California, he had no agents acting on his behalf in California, and he had not communicated directly with anyone in California.

The court disagreed:

"Territorial jurisdiction to prosecute lies under the traditionally applicable legal principles, and it makes no difference that the charged conduct took place in cyberspace rather than real space."

Orin, I take it, agrees; he thinks this is a reasonable -- perhaps even an obvious -- resolution. "Next time," he writes, tongue presumably in cheek, "maybe the defendant should argue that if you commit a crime in cyberspace rather than real space, you only have to go to cyber jail instead of real jail."

Well, I'm not so sure it's so reasonable. There's a very deep problem here, and it won't go away just by saying "it makes no difference that the charged conduct took place in cyberspace." Here's the issue, in a nutshell. The court is probably correct that the "traditionally applicable legal principles" permit it to assert jurisdiction over the defendant; the harder question is whether those "traditionally applicable legal principles" become utter nonsense in a networked world.

The "traditionally applicable legal principle" here is what the court calls the “detrimental effects theory" of extraterritorial jurisdiction: if your actions outside the jurisdiction have harmful effects inside the jurisdiction, you're subject to the jurisdiction's criminal laws.

This principle, I submit, doesn't make sense in a world in which the "effects' of all actions are felt instantaneously everywhere on the network; applying that principle leads to the conclusion that everyone is subject to everybody's criminal jurisdiction simultaneously, and I don't think that is a sensible conclusion for a global legal system. Orin, I take it, will have no objections when the State of Slobovia, which has very strict rules about the unauthorized practice of law, declares him to be criminally liable for violating those rules in his postings here on the Volokh Conspiracy -- but I'll defend him in that proceeding, nonetheless.

Related Posts (on one page):

Cyberspace Jurisdiction and the Dormant Commerce Clause:
Jurisdiction in Cyberspace; A Different View
Hageseth v. Superior Court:

California Wants a Waiver:

California is seeking permission from the federal government to implement and enforce regulations controlling greenhouse gas emissions from new motor vehicles. Under the Clean Air Act, states are preempted from adopting their own vehicle emission standards. Section 209(b) of the Act, however, authorizes the EPA to waive this preemption for standards adopted by California meeting certain requirements. Once standards are adopted by California, other states may follow suit, adopting California's rules in lieu of the background federal standards.

In December 2005, the California Air Resources Board applied for a waiver of preemption for the state's new greenhouse gas emission controls. The EPA has yet to act. According to California Governor Arnold Schwarzenegger, this is solely due to Bush Administration intransigence. Writing in the Washington Post with Connecticut Governor Jodi Rell, Schwarzenegger argues that "it borders on malfeasance" for the EPA to "stonewall" California's waiver request. According to the two Republican governors, the EPA has a legal obligation to grant California's waiver request and not "stand in the way" of state efforts to control greenhouse gas emissions.

If only it were that simple. Contrary to the impression left by Schwarzenegger and Rell, the EPA has had good reasons to delay acting on the waiver request. Moreover, it is not clear that the EPA is even allowed, let alone obligated, to grant this specific waiver. At the time the request was first submitted, the EPA was enmeshed in litigation over whether it had authority to regulate greenhouse gases. If not, as the EPA had claimed, it is not clear that the EPA could have granted the waiver. In any event, it hardly "bordered on malfeasance" to postpone ruling on the waiver until the litigation concluded.

Now that the Supreme Court has concluded that the EPA does have authority over greenhouse gas emissions, it is still unclear that the California waiver request meets the statutory requirements of Section 209(b). If not, the EPA cannot grant the waiver, whether it would like to or not. Under the text of the Act, the EPA is not to grant a waiver if it is not necessary for "compelling and extraordinary conditions." This was an easy standard for California to meet when it sought to adopt vehicle emission controls to help address California's notoriously bad urban air pollution problems. In the case of climate change, however, it is not clear how California can claim to face "compelling and extraordinary conditions" that greenhouse gas emission controls are necessary to address. Because climate change is a global atmospheric phenomenon, California is in the same boat as every other state, and nothing California does on its own to reduce emissions will have much effect. Therefore, not only would the EPA be fully justified in denying California's request for a waiver, it may even be obligated to do so.

The Senate Committee on Environment and Public Works is holding a hearing on this issue today at which I will be testifying (along with California Attorney General Jerry Brown and New York Department of Environmental Conservation Commissioner Alexander Grannis). I will post a copy of my testimony and reactions after the hearing.

UPDATE: My testimony from the hearing is now available here.

Related Posts (on one page):

California Waiver Hearing:
California Wants a Waiver:

Sabermetrics and the Future of Legal Empirical Studies

The book I have recently read that I think may offer the most insight into the future of legal studies is, of all things, a book on sabermetrics, called Baseball Between the Numbers. Sabermetrics, for those of you not into baseball, is the advanced statistical analysis of baseball. With Bill James as its most famous pioneer, it raised all sorts of probing analysis about which statistics really best determined the value of a baseball player, and what sorts of strategies worked and which didn’t.

So what does any of this have to do with law? Well, what this book does is compile, in a readable way, the major points this advanced statistical analysis has taught us over the last few decades about matters that were previously resolved by tradition, customs, and intuitive reasoning. Some of those traditional views turn out to have some basis, others none or only in a limited way.

For example, advanced statistical analysis shows that batting averages are a useful statistic, but much less important to winning than on-base-percentage. RBIs are largely a distraction, and hot streaks and clutch hitting are stories we tell ourselves to describe statistical clumps that are really just random. Pitchers vary in their ability to strike out batters and avoid walks and home runs, but have little effect on the odds that balls hit in play will become outs, so their ERAs are worse predictors of their future performance that their rates of strikeouts, walks and home runs. The bunt is hugely overused, and generally reduces the odds of victory, other than in a few instances that can be specified with precision.

And it occurred to me that in law we now are largely where sabermetrics was in the early days when Bill James began cranking out his seminal Baseball Abstracts. The bulk of what we teach our students reflects tradition, customs, and intuitive reasoning. Little of it has been subject to rigorous statistical analysis.

In Contracts class, for example, I regularly teach that we can understand all contract law largely as default rules that either reflect what most parties would want or are thought most likely to trigger an explicit contract provision. Then we explore how courts and scholars have resolved such issues, which is largely through armchair reasoning. The issue cries out for rigorous statistical analysis, and we have little to offer.

In Antitrust, much turns on how we think firms are likely to behave. After a merger, will firms engage in Bertrand competition by pricing down to cost, Cournot competition by setting output in a way that depends on the output of others, or oligopolistic coordination on price or output? The traditional approach considers various factors that theoretically bear on this issue in particular cases, but the weighing of them generally turns on unavoidable judgment calls. It would be better to rely on the growing statistical analysis of how firms actually behave (often, it turns out, in ways that lie in between these models). It would be even better to have rigorous statistical data about what the price effects were of a particular method for deciding which mergers to approve or condemn. Right now we choose our merger law methodologies based on theory and never gather and analyze the data to see whether the theory worked.

We are probably even further behind in empirical analysis of basic legal strategy. What sorts of arguments are most effective with judges? Which with juries? Which sorts of contract design are most likely to avoid disputes latter? Which settlement offers are most likely to be successful? These are important things to teach our students, but all we can do is either tell them the received wisdom (which may well be wrong) or avoid discussing these issues (so as not to expose our ignorance).

In short, in law, we are currently still largely in the position of the baseball scouts lampooned so effectively in Moneyball for their reliance on traditional beliefs that had no empirical foundation. But all this is changing. At Harvard Law School, as traditional a place as you can get, we now have by my count 10 professors who have done significant statistical analysis of legal issues. We just hired our first JD with a PhD in statistics. The movement is not at all limited to Harvard, and seems to be growing at all law schools.

So we are hardly devoid of empirical analysis of law. We are just, rather, in our early Bill James era, and can expect the analysis to get more sophisticated and systematic as things progress. I expect within a couple of decades we will have our own book distilling the highlights of things we will know then that conflict with what is now conventional legal wisdom.

None of this means this new empiricism will replace traditional legal theory, much like sabermetrics has not eliminated the need for scouting. Indeed, it is clear to me that a lot of legal empirical analysis misses the boat because it has a poor or thin understanding of legal theory. Many empiricists are good at providing useful input to policy analysis, but surprisingly terrible at doing policy analysis about the implications of their own findings. There will also be some growing pains because it is not clear that empiricists are the best placed persons to teach law students, given that the students themselves need not learn how to do statistical analysis to become excellent lawyers.

But I have no doubt that empirical analysis of law will provide the biggest contributions to our understanding of law over the next few decades. That is where the low-hanging fruit is. The decline of doctrinalism will only accentuate this trend. Because anti-doctrinalist law professors can no longer persuade lawmakers with claims about what the law inherently must mean, they will find it more promising to try to influence lawmakers with findings about what effects particular laws would have. This brings us to my next topic, the death of doctrinalism, which will be the subject of my post tomorrow.

Related Posts (on one page):

Law and Fantasy Literature:

Numerous lawprof bloggers, including Steve Bainbridge, Christine Corcos, David Hoffman, and our own Senior Conspirator are commenting on the portrayal of law in fantasy literature - or rather the seeming lack thereof.

I don't agree with those (Hoffman and Bainbridge) who argue that fantasy literature mostly ignores legal issues. Litigation is indeed absent in most fantasy works. But the absence of litigation is not the same thing as the absence of law. To the contrary, many famous fantasy works do use legal disputes as a central theme. The dysfunctional nature of the legal and political system of the Wizarding world is a central theme and plot device in the Harry Potter books - the most popular contemporary fantasy series. The Harry Potter books even include several trials. Rowling's negative portrayal of the wizard legal system is, of course, also a way to criticize some aspects of our own Muggle law.

Disputes over property rights are central to the work of J.R.R. Tolkien, the biggest influence on the modern fantasy genre. Tolkien's The Silmarillion, the back story to the Lord of the Rings centers around a dispute over the ownership of the silmarils - a set of valuable magic jewels. The Lord of the Rings also features a wide range of property disputes, including the competing claims to the ownership of the Ring itself. For my Property class, I once created a handout illustrating the various common law modes of property acquisition using examples from LOTR. We've got acquisition by creation (Sauron's claim to ownership of the Ring), acquisition by conquest (Isildur's claims); acquisition by find (Gollum); acquisition by exchange (Bilbo, winning the ring in a game with Gollum); and acquisition by gift (Frodo). Gollum could also claim ownership by adverse possession were it not for the fact that adverse possession does not apply against personal property. On a more serious level, LOTR also criticizes the expropriation of traditional property rights by modern government, as in the portrayal of the "gatherers and sharers" who confiscate the Hobbits' property in "The Scouring of the Shire."

Most fantasy novels are set in societies too poor to be able to support an extensive formal legal system that relies on complex litigation. Moreover, litigation is unlikely to make fun reading for the target audience. But that doesn't mean that fantasy literature ignores law. It often does address it, but in a different way.

Related Posts (on one page):

Law and Fantasy Literature:
Law and Fantasy (and Science Fiction):

Roper v. Weaver: Monday's flurry of opinions included a fascinating decision in Roper v. Weaver, a capital case that the Court apparently took to correct a somewhat wacky application of AEDPA from the Eighth Circuit. The case was briefed and argued, and on Tuesday the Court decided to DIG the case — dismiss it as improvidently granted -- on essentially equitable grounds. In other similar cases, including one involving the respondent's co-defendant, AEDPA didn't apply and relief was granted. To avoid a likelihood of having to apply AEDPA — and, one assumes, to deny relief — the Court decided to dismiss the writ and let the Eighth Circuit decision stand to make sure that the similar set of cases received similar results.

Justice Scalia, joined by Thomas and Alito, let'em have it in a dissenting opinion. It's worth reading in full, but the conclusion is particularly pointed:

A postscript is warranted in light of the unusual circumstances in which we dispose of this case. The greatest harm done by today's cancellation is not to the State of Missouri, which will have to retry this murder case almost two decades after the original trial —- though that is harm enough. The greatest harm is that done to AEDPA, since dismissing the writ of certiorari leaves the Eighth Circuit's grossly erroneous precedent on the books. (That precedent, by the way, cannot be explained away — as perhaps the Court's own opinion can — as the product of law-distorting compassion for a defendant wronged by a District Court's erroneous action. As noted earlier, the Eighth Circuit was not informed of that erroneous action. It presumably really believes that this is the way AEDPA should be applied.) Other courts should be warned that this Court's failure to reverse the Eighth Circuit's decision is a rare manifestation of judicial clemency unrestrained by law. They would be well advised to do unto the Eighth Circuit's decision just what it did unto AEDPA: ignore it.
For the foregoing reasons, I respectfully dissent.

Senate Hearing on Habeas Corpus: Tuesday morning at 10am the Senate Judiciary Committee is holding a hearing, "Restoring Habeas Corpus: Protecting American Values and the Great Writ." I am one of five witnesses, and I have posted a copy of my written testimony here. From the introduction:

I will make two points. First, it appears likely that the Supreme Court would hold that the writ of habeas corpus must be available to the detainees as a matter of constitutional law. Second, if this is true, then the Constitution requires a judicial forum that provides the detainees with an effective opportunity to test the legality of their detention. It is uncertain but unlikely that the judicial review presently available to the detainees is adequate to satisfy this standard. Taking these two points together, there is a significant possibility that the absence of habeas corpus jurisdiction over the detainee claims at Guantanamo Bay violates the Suspension Clause of the Constitution.

Oh, and as far as I know, the hearing won't be on C-Span.

More Deceptive Eminent Domain "Reform" in California:

California State Representative Richard De La Torre recently introduced a bill that will supposedly protect the state's property owners against economic development condemnations similar to that upheld by the US Supreme Court in Kelo v. City of New London. There is only one small problem: the bill won't actually achieve anything of the kind. Tim Sandefur of the pro-property rights Pacific Legal Foundation explains why in this helpful post.

I don't have much to add to Tim's analysis of the measure, except to point out that it is very similar to the deceptive eminent domain "reform" measure that the California League of Cities is trying to put on the state's referendum ballot for this fall. The two proposed laws have extremely similar wording and almost exactly the same loopholes. Perhaps De La Torre and the CLC are working together in an effort to head off stronger reform proposals that might actually constrain the government's ability to take property for dubious "development" projects that often benefit the politically powerful at the expense of the politically weak, not to mention the general public.

Last fall, the California legislature enacted a different package of post-Kelo reforms that also pretended to protect property owners, while actually achieving almost nothing of substance.

As I argue in great detail in my paper on post-Kelo reform, California politicians are far from alone in their efforts to exploit voter ignorance by passing off ineffectual eminent domain reform as the real thing.

Related Posts (on one page):

More Deceptive Eminent Domain "Reform" in California:
The California League of Cities' Deceptive Eminent Domain "Reform" Referendum Initiative:

Godfather, Part IV -- Fredo's Revenge:

Nice. Of course, I trust that readers will enjoy that link only in the most sober of ways. Hat tip: Marty.

Hageseth v. Superior Court: Interesting line from a California state court criminal law decision handed down today: "it makes no difference that the charged conduct took place in cyberspace rather than real space."

  The case, Hageseth v. Superior Court, involved a Colorado doctor who participated in an online pharmacy. The doctor, Hageseth, issued an online prescription to a patient in California, and was then charged criminally with practicing medicine without a license in California. Hageseth claimed that he couldn't be charged with a California crime because he was beyond California's jurisdiction, bolstered at least in part by what looks like a dormant-commerce-clause-argument-in-disguise: specifically, that it would create all sorts of trouble for California to try to regulate such conduct beyond its borders.

  The court disagreed, finding that under traditional principles of extraterritorial application of criminal law the state of California could reach the doctor's conduct. The fact that the doctor's conduct took place "in cyberspace" -- that is, using e-mail and websites -- was irrelevant. Next time maybe the defendant should argue that if you commit a crime in cyberspace rather than real space, you only have to go to cyber jail instead of real jail.

  Thanks to Tom Watson for the link.

Related Posts (on one page):

Cyberspace Jurisdiction and the Dormant Commerce Clause:
Jurisdiction in Cyberspace; A Different View
Hageseth v. Superior Court:

Books, TV, even a Graduation Speech: Who knew Jan Crawford Greenburg even does commencement addresses? Good speech, too.

No news is good news:

In Britain, seven years after being forced by a European court to allow gays to serve openly, the policy is producing yawns:

Since the British military began allowing homosexuals to serve in the armed forces in 2000, none of its fears — about harassment, discord, blackmail, bullying or an erosion of unit cohesion or military effectiveness — have come to pass, according to the Ministry of Defense, current and former members of the services and academics specializing in the military. The biggest news about the policy, they say, is that there is no news. It has for the most part become a nonissue.

Read the whole story here. An interesting side note is that the British military is keeping mum about the success of integrating homosexuals so as to avoid embarrassing the United States, which still expels homosexuals based on fears that have proved unfounded for its closest ally. It's hard to escape the conclusion that America's policy of exclusion remains in place for reasons of domestic politics, not military need.

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Twombly -- The New Supreme Court Antitrust Conspiracy Case

I'm afraid the new Supreme Court case on antitrust conspiracies, Twombly, is quite insignificant, notwithstanding the view of the estimable Baseball Crank that it "will almost certainly be the most practically significant case of this term." All the case holds is that bare allegations of a conspiracy and parallel conduct do not suffice without more specificity. That much was the widespread actual practice in the lower courts even before this decision. What we really needed guidance on was which "plus factors" would, coupled with parallel conduct, suffice to make out an antitrust conspiracy. On that the opinion is of no help. So all it really does is slap down one wayward decision without really settling anything important for the future.

Related Posts (on one page):

Why All This Lateral Hiring By Elite Schools?
The Exploding Laterals Law School Market.
Doctrinalism and the Legal Academy:
The Death of Doctrinalism and Its Implications for the Entry-Level Job Market at Law Schools.
Sabermetrics and the Future of Legal Empirical Studies
Twombly -- The New Supreme Court Antitrust Conspiracy Case
Will Basic Legal Subjects Become Globalized?
Einer Elhauge, Guest-Blogging:

The Supreme Court and the 2008 Election: Tom Goldstein has a very provocative post up at SCOTUSBlog on how the 2008 Presidential Election might change the direction of Supreme Court doctrine. Tom's bottom line: a Republican victory in 2008 could bring a fundamental and dramatic shift in the Court's direction, perhaps even undoing the work of the Warren Court and returning many areas of law to their pre-Warren Court status. The basic argument: Stevens and Souter may resign, and replacing them with conservatives could lead the Court on a radically different path.

  I look at things differently, and a thought experiment explains why. Imagine the year is 1969, the end of a decade of 5-4 constitutional blockbusters, and Chief Justice Warren has recently announced his retirement. A time-traveler from 2007 comes back and tells you the dramatic news about who would nominate the Justices of the next four decades. He explains to you that American politics would shift sharply to the right in the future, and that that in the next four decades 12 of the 14 new Justices — over 85% — would be nominated by Republicans.

  If you were told that in 1969, what would you guess about the status of the Warren Court's major decisions as of 2007? And fastforwarding to 2007, how closely would your guess of 1969 match the reality of 2007? My guess is that your guess would be pretty far off.

  Elections matter, of course. But on the whole, I think such a dramatic shift is significantly less likely than Tom's post suggests.

Straight Out of a Weird Law School Hypo:

ABC News reports:

[I]dentical Missouri [Raymon and Richard Miller] twins say they were unknowingly having sex with the same woman. And according to the woman's testimony, she had sex with each man on the same day. Within hours of each other.

When the woman in question, Holly Marie Adams, got pregnant, she named Raymon the father, but he contested and demanded a paternity test, bringing his own brother Richard to court.

But a paternity test in this case could not help. The test showed that both brothers have over a 99.9 percent probability of being the daddy — and neither one wants to pay the child support....

[Judge Fred] Copeland, however, notes that as the judge in the case, he does not have to depend solely on DNA evidence and can rule based on the testimony of Adams as well — who believes she can nail down the date of conception to a night spent with Raymon....

Sounds like a case for the DES market-share liability theory. No, not really, just a little law geek humor here.

Thanks to Daniel Schmutter for the pointer.

President Stands By Gonzales: Alberto Gonzales may only have one supporter in Washington, but it's an important "one." Here's President Bush, speaking today from the Bush Ranch in Crawford, Texas:

[Alberto Gonzales] has got my confidence. He has done nothing wrong. There's been enormous amount of attention on him — that there's been no wrongdoing on his part. He has testified in front of Congress. And I, frankly, view what's taking place in Washington today as pure political theater. And it is this kind of political theater that has caused the American people to lose confidence in how Washington operates.

I stand by Al Gonzales and I would hope that people would be more sober in how they address these important issues. And they ought to get the job done of passing legislation, as opposed to figuring out how to be actors on the political theater stage.

I hope my fellow VC bloggers and commenters will agree to start being more sober in how we address these important issues. You too, Stuart Taylor.

Stephen Smith Elected Dartmouth Trustee:

Stephen Smith, Dartmouth class of 1988 and current University of Virginia Law School professor, has been elected an Alumni Trustee of Dartmouth.

Under the "approval voting" system used for trustee elections, Smith garnered the support of 55% of voters.

Stephen has posted a statement on his website here.

I congratulate him and welcome him to the board. It is a privilege to have the opportunity to serve with him.

Law and Fantasy (and Science Fiction):

My colleague Prof. Bainbridge has a post about the use of law, especially law other than criminal law, as a plot device in fantasy books. He thinks there's relatively little of it, and that's my sense, too (though of course I'm limited by what I read); I'd say the same about science fiction. Christine Corcos, writing in the new Law and Magic Blog, thinks there's actually quite a bit out there.

I think all three of us would agree, though, that this is pretty fertile ground for fiction: The legal fiction genre (at least at its best) shows that law can provide interesting plot twists, an extra source of drama, and a means for showing and developing characters' character traits. In fantasy/SF, it could also show and develop the implications of the new rules or new technologies that the fantasy/SF author is introducing. I'd love to read some first-rate works that combine the genres these ways, or even just introduce some legal elements into the fantasy/SF genre (though I recognize of course that schlock can be written in this mixed genre at least as well as in the individual genres).

Related Posts (on one page):

Law and Fantasy Literature:
Law and Fantasy (and Science Fiction):

Two Significant Decisions: I know nothing about antitrust law or the Individuals with Disabilities Education Act, but this morning the Supreme Court handed down decisions in both areas that commentators are finding significant. Here's the Baseball Crank on today's antitrust decision, Bell Atlantic v. Twombly. Here's SCOTUSblog on today's IDEA case, Winkelman v. Parma City School Dist.

David Attenborough Segments on YouTube: If you're looking for a few minutes of entertainment -- and if you're reading this blog, you probably are -- I highly recommend checking out the various 2-4 minute clips that the BBC has posted on YouTube featuring David Attenborough discussing various exotic animals and plants. This one about caterpillars in Borneo protecting themselves from predators is really cool; so is this one on how cuckoos trick other birds into taking care of their young. Just go here and start clicking; the BBC has posted about 45 of these clips on YouTube, and it seems that they're all pretty good.

Supreme Court Reverses Ninth Circuit in Out-of-Bed-Naked Search Warrant Case: A recent post at SCOTUSblog by Keven Russell discussed ways of getting the Supreme Court interested in your appellate decision if you don't have a circuit split to trumpet. Although it's a very useful post, it didn't mention the easiest approach: make sure you lost in the Ninth Circuit with Judge Reinhardt or Pregerson (or, if you're really lucky, both) in the majority. To wit, today's summary reversal of the Ninth Circuit in Los Angeles County v. Retelle, overturning an unpublished 2-1 memorandum decision of the Ninth Circuit with Pregerson and Thomas in the majority and Senior Judge Robert Cowen of the Third Circuit in dissent.

Retelle is a pretty interesting case. The government obtained a warrant to search two houses for evidence of fraud and identity theft; the suspects in the case were all black. One of the suspects was known to have a gun. The police executed the warrant at the first house at 7:15 am one morning. they knocked and announced, and a a 17-year old caucasian male opened the door. The cops entered the house and went to the bedroom where they expected to find the suspects named in the warrant. Instead, they found a caucasian couple in bed:

The deputies entered their bedroom with guns drawn and ordered them to get out of their bed and to show their hands. They protested that they were not wearing clothes. Rettele stood up and attempted to put on a pair of sweatpants, but deputies told him not to move. Sadler also stood up and attempted, without success, to cover herself with a sheet. Rettele and Sadler were held at gunpoint for one to two minutes before Rettele was allowed to retrieve a robe for Sadler. He was then permitted to dress. Rettele and Sadler left the bedroom within three to four minutes to sit on the couch in the living room.

It turned out that Retelle and Sadler had just recently bought the house, and that the suspects were no longer living there. The police quickly realized this. "They apologized to Rettele and Sadler, thanked them for not becoming upset, and left within five minutes. They proceeded to the other house the warrant authorized them to search, where they found three suspects. Those suspects were arrested and convicted."

Meanwhile, Retttele and Sadler sued the police under 42 U.S.C. 1983. They did not contest that the warrant was valid. Rather, they argued that their rights were violated when the police had ordered them out of bed naked early in the morning while executing the warrant. The Ninth Circuit agreed, holding that a jury could find that the police had violated the Fourth Amendment in doing so, and that qualified immunity didn't protect them. Here's the Ninth Circuit's analysis:

[B]ecause (1) no African-Americans lived in Plaintiffs' home; (2) Plaintiffs, a Caucasian couple, purchased the residence several months before the search and the deputies did not conduct an ownership inquiry; (3) the African-American suspects were not accused of a crime that required an emergency search; and (4) Plaintiffs were ordered out of bed naked and held at gunpoint while the deputies searched their bedroom for the suspects and a gun, we find that a reasonable jury could conclude that the search and detention were "unnecessarily painful, degrading, or prolonged," and involved "an undue invasion of privacy," Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir.1994). . . .

Based on Plaintiffs' version of the facts, we find that a reasonable officer would have known that such a search and detention was unlawful under the circumstances. After taking one look at Plaintiffs, the deputies should have realized that Plaintiffs were not the subjects of the search warrant and did not pose a threat to the deputies' safety. To order Plaintiffs out of bed at gunpoint, early in the morning and before Plaintiffs had dressed, was "unnecessarily painful" and "degrading," and clearly an undue invasion of Plaintiffs' privacy. Franklin, 31 F.3d at 876.

Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir.1994), the case relied on heavily by the Ninth Circuit in Retelle, had involved a search of a home for drugs. The police broke down the door and found that the home was owned by a bedridden man with advanced-stage multiple sclerosis. The man was unable to get out of bed himself or control his bowel movements, but the police had dragged him out of bed anyway, handcuffed him, and left him in another room for two hours with only a t-shirt on while they searched the house in its entirety. In Foxworth, the Ninth Circuit had condluded that treating the disabled man in such a callous and degrading way had violated his Fourth Amendment rights.

The Supreme Court reversed the divided panel in Retelle in a per curiam opinion. According to the Court, it was reasonable for the police to order the couple out of bed and to detain them briefly under the circumstances:

When the deputies ordered respondents from their bed, they had no way of knowing whether the African-American suspects were elsewhere in the house. The presence of some Caucasians in the residence did not eliminate the possibility that the suspects lived there as well. As the deputies stated in their affidavits, it is not uncommon in our society for people of different races to live together. Just as people of different races live and work together, so too might they engage in joint criminal activity. The deputies, who were searching a house where they believed a suspect might be armed, possessed authority to secure the premises before deciding whether to continue with the search. . . . .

In executing a search warrant officers may take reasonable action to secure the premises and to ensure their own safety and the efficacy of the search. The test of reasonableness under the Fourth Amendment is an objective one. Unreasonable actions include the use of excessive force or restraints that cause unnecessary pain or are imposed for a prolonged and unnecessary period of time.

The orders by the police to the occupants, in the context of this lawful search, were permissible, and perhaps necessary, to protect the safety of the deputies. Blankets and bedding can conceal a weapon, and one of the suspects was known to own a firearm, factors which underscore this point. The Constitution does not require an officer to ignore the possibility that an armed suspect may sleep with a weapon within reach. . . . .

The Fourth Amendment allows warrants to issue on probable cause, a standard well short of absolute certainty. Valid warrants will issue to search the innocent, and people like Rettele and Sadler unfortunately bear the cost. Officers executing search warrants on occasion enter a house when residents are engaged in private activity; and the resulting frustration, embarrassment, and humiliation may be real, as was true here. When officers execute a valid warrant and act in a reasonable manner to protect themselves from harm, however, the Fourth Amendment is not violated.

The per curiam opinion was joined by seven Justices. Justice Stevens wrote a short concurring opinion, joined by Justice Ginsburg, which would have reached the same result on qualified immunity grounds without reaching the merits of the Fourth Amendment issue.

Iraqi Jews:

The BBC has a story on Iraqi Jews living in Israel, who remember their former homeland with fondness. My wife is of Iraqi descent, and I think it's fair to say that both of her parents enjoyed life in Iraq, especially her mother, who was from a very wealthy and prominent family (Khalaschy, which can be spelled many different ways in English). Life in Israel, by contrast, was very hard when Iraqi Jews were forced to emigrate around 1950, made worse by the incompetence and ignorance of Israeli authorities. (Well, at least they weren't herded into refugee camps and denied citizenship rights to serve as a political tool for the next sixty years). My father-in-law certainly misses Arabic culture, as witnessed by his new satellite t.v. system which gets 300(!) Arab-language channels.

But as with Jewish refugees from Germany in the 1930s who longed for their homeland, the Iraqi Jewish experience was not always as happy as it seemed in retrospect. My wife's great-grandfather was killed by an anti-Semitic gang in the late 1930s, on his way to synagogue on Friday night. The gang had apparently resolved to kill the first Jew who showed up to services. Not to mention the widespread anti-Jewish agitation and violence that greeted the establishment of the State of Israel. Perhaps not surprisingly, the BBC story is rather light on such details.

Thanks to Honest Reporting for the pointer.

Kmiec v. Lederman - Round III:

Marty Lederman responds to Douglas Kmiec (and to Sandy Levinson) here.

Will Basic Legal Subjects Become Globalized?

In today’s global markets, firms face the reality that they are subject to simultaneous legal regulation by many nations. Lawyers face the reality that they must advise clients subject to such multinational regulation. Yet law schools continue to teach and research basic legal subjects from the parochial perspective of whatever nation they are located in. This doesn’t make much more sense than having, say, Harvard Law School offer a curriculum limited to Massachusetts law on topics like contracts, property, torts, antitrust, and corporate law, just because it is located in Massachusetts.

To be sure, some law schools, including Harvard, are introducing first-year required courses in international and comparative law, which is I think a very welcome step. But generally international law courses focus on resolving conflicts in national laws, and comparative law courses focus on general differences in legal cultures to gain perspective on our own system, in a way that does not necessarily get deep into substantive theory in any particular area. Neither quite confronts the reality that the basic law applicable to much conduct simply is multinational.

Focusing on courses in international and comparative law also, in a sense, ghettoizes the laws of other nations, treating them as something to consider at the margins outside the basic legal subjects. It would be like saying the Massachusetts law curriculum I noted above would be fine if Harvard also offered first year courses in conflicts of laws and comparative state law.

I confess I have a personal stake in this issue, because I have just finished a book (with my European co-author Damien Geradin) called Global Antitrust Law & Economics, which I believe is the first casebook to take the approach that the law applicable to a basic legal subject is multinational. We put US regulations and cases side by side with the EC regulations and cases that regulate the same conduct on global markets, without suggesting that one of them is more important or necessary to understanding basic antitrust law and that the other is only useful to add perspective. We designed the book to be able to replace parochial books on basic antitrust law and teach antitrust lawyers the global landscape they must face, not to merely provide grist for advanced courses in comparative and international antitrust.

I think this is the first casebook to go this far, but glancing through advertising for other casebooks, it seems clear that casebooks in every area are popping up which add an increasing amount of global content to basic legal subjects. My prediction is our book will just be the leading edge of a wave of such books, and that they will transform legal education more than anything else we have seen in the last few decades. Perhaps we will even get to the stage where we do not need courses in comparative and international law because each substantive course already addresses the comparison and how to resolve international conflicts in that subject.

It is not too surprising that antitrust would be the leading edge in such a transformation, much like it was for the incorporation of economic analysis of law. Antitrust economics offers a common body of scholarship across nations already, and there is the convenient fact that the US and EC dominate antitrust enforcement, with other nations generally borrowing the approach of one or the other. This makes it possible to take the approach, like my book did in this first edition, of analyzing the US and EC law in depth and just summarizing other nations’ stance unless they take a distinctive third way approach.

But I can already see that, if I could just find the time to write the necessary casebooks (or find someone else who would), I really should be teaching all my other subjects from a global perspective. Contracts, corporate law, health law – all these raise issues across multiple nations and understanding the laws of many nations on these topics would better describe reality. Doing so in basic substantive courses would also, if my experience from the global antitrust book can be generalized, reveal many interesting theoretical issues that a national approach tends to submerge, and pose very interesting areas for possible empirical studies into what works and what doesn’t. This last point brings us to the next big transformation in legal studies – the growing trend toward empirical analysis – which will be the subject of my blog post tomorrow.

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Einer Elhauge, Guest-Blogging:

I'm delighted to say that we'll be joined this week by Einer Elhauge, Petrie Professor of Law at Harvard Law School and faculty director of the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics. Prof. Elhauge teaches Antitrust, Contracts, Corporations, Health Care Law, and Statutory Interpretation, and writes about all these topics plus, among other things, legislative term limits, the 2000 Presidential election, the implications of interest group theory for judicial review, and whether lawyers improve the legal system. His most recent publication are Global Antitrust Law and Economics (Foundation Press 2007) and Global Competition Law and Economics (Hart Publishing 2007); he is also working on the forthcoming Statutory Default Rules for Harvard University Press, books on Contract Theory and Health Law Policy, and articles on re-engineering human biology and other topics.

As befits Prof. Elhauge's eclectic scholarly tastes, his guest posts will deal with a variety of trends in legal studies, from legal globalization to the teaching market to statutory interpretation. I'm very much looking forward to his contributions this week.

Related Posts (on one page):

If language be not in accordance with the truth of things, affairs cannot be carried on to success:

One of the most prominent features of the city of Taipei is the gargantuan memorial to Chiang Kai-Shek and the large grounds surrounding the memorial. On Saturday, Taiwan's executive branch renamed the structure; it is now "National Taiwan Democracy Memorial Hall."

The renaming has sparked strong protests, and the promise of a lawsuit, from the KMT (Chinese Nationalist Party), which controls Taiwan's legislative branch. Taiwan's executive branch is controlled by the DPP (Democratic Progressive Party), which is much more supportive of Taiwan's independence and much less accommodationist to China than is the KMT.

It might be surprising that the party which is most concerned about not angering China's communist dictatorship would want to preserve the memory of Chiang, who was such a terrible leader of China that he lost the Chinese civil war to Mao, and further annoyed the Maoists by preventing them from conquering Taiwan. But Chiang was the the founder of the KMT. And the Chinese communists recognize that, whatever else one might say about Chiang, he was a believer in "One China." (That is, a "China" of which Taiwan and Tibet are supposedly indispensible, historic components.)

Earlier this year, Chiang Kai-Shek International Airport (on the northern edge of Taipei, in Taoyuan County) was renamed "Taiwan Taoyuan International Airport."

An op-ed in the pro-DPP English-language Taipei Times argues for the renaming of the CKS Memorial, while an article in the same newspaper presents the legal arguments raised by the KMT. The Wikipedia article linked above also has some details on the legal issues.

Since none of the Volokh Conspirators have expertise on Taiwanese law regarding inter-branch controversies over public memorials, comments would be especially welcome on this legal topic, which has received relatively little U.S. study, even in advanced law school courses on Asian law. I do hope that the DPP is legally right, because it is not appropriate to give grandiose honor to a very corrupt man who began severely oppressing Taiwan as soon as the U.S. made Japan give it to him, who himself perpetrated mass killings and the White Terror against the people of Taiwan and kept them under a dictatorship every day of his life, and whose self-serving, dictatorial rule paved the way for the seizure of power in China by the most genocidal tyrant in world history. For most of China's very long history, Taiwan was not part of China, but most Taiwanese today are ethnically Chinese. They are the first ethnic Chinese nation in history to govern themselves democratically. The accomplishment of the Taiwanese people deserves the greatest place of honor in Taiwan's capital; the deceased dictator does not.

The correction of the names of public structures to remove the personality cult that CKS built for himself is long overdue. According to the Analects of Confucius:

Tsze-lu said, "The ruler of Wei has been waiting for you, in order with you to administer the government. What will you consider the first thing to be done?"

The Master replied, "What is necessary is to rectify names." "So! indeed!" said Tsze-lu. “You are wide of the mark! Why must there be such rectification?"

The Master said, "How uncultivated you are, Yu! A superior man, in regard to what he does not know, shows a cautious reserve.

"If names be not correct, language is not in accordance with the truth of things. If language be not in accordance with the truth of things, affairs cannot be carried on to success.

"When affairs cannot be carried on to success, proprieties and music do not flourish. When proprieties and music do not flourish, punishments will not be properly awarded. When punishments are not properly awarded, the people do not know how to move hand or foot.

"Therefore a superior man considers it necessary that the names he uses may be spoken appropriately, and also that what he speaks may be carried out appropriately. What the superior man requires is just that in his words there may be nothing incorrect."

p.s. Those of you who read Traditional or Simplified Chinese may enjoy my Chinese language website, although none of the articles are on Taiwan, China, or Tibet.

The Case Against Perpetual Copyright:

In a New York Times op ed, Claremont Institute fellow Mark Helprin argues that we should have copyright laws that give the owners perpetual rights in their intellectual property. In my view, his proposal is deeply flawed. If it had been in force throughout our history, Shakespeare's heirs could presumably forbid any performances of his plays by groups that refuse to give the Bard's descendants a share of the take. As VC readers know, I'm a strong supporter of property rights; this proposal, however, is a bridge too far. Helprin defends his idea by analogy to real property:

What if, after you had paid the taxes on earnings with which you built a house, sales taxes on the materials, real estate taxes during your life, and inheritance taxes at your death, the government would eventually commandeer it entirely? This does not happen in our society ... to houses. Or to businesses. . .

Once the state has dipped its enormous beak into the stream of your wealth and possessions they are allowed to flow from one generation to the next. . .

That is, unless you own a copyright. Were I tomorrow to write the great American novel (again?), 70 years after my death the rights to it, though taxed at inheritance, would be stripped from my children and grandchildren.

Helprin also argues that perpetual copyright is compatible with the Constitution's Copyright Clause, which grants Congress the power to establish intellectual property rights. There are several major problems with Helprin's argument. He fails to consider key differences between intellectual and physical property. Moreover, his proposal is probably unconstitutional.

I. The Difference Between Physical Property and Intellectual Property.

Helprin ignores the crucial difference between copyright and physical property. Property rights in land and physical possessions protect assets that will lose much of their value if anyone is allowed to use them at any time or if the government can expropriate them at will. For example, if anyone could come and use a house anytime they wanted to, that home would lose much of its utility, since the ability to exclude others is a major part of the value of a house. No one could live in the house in safety and privacy, because they could be disrupted by squatters at any time. Economists refer to such goods as ones subject to "rivalrous" consumption. If I use the good, that makes it difficult or impossible for others to use it at the same time. As a result, all of society benefits from having clear rules that assign the right to physical property to individual owners who can exclude others from using the property without the owners' consent.

By contrast, if you "use" the phrases or ideas in one of my articles, that doesn't prevent anyone else (including me) from using them at the same time. Unlike property rights in physical objects, property rights in ideas actually undermine our ability to use resources in a productive manner rather than further it. The "consumption" of ideas is norivalrous.

Moreover, unlike rights to physical property, copyright and other intellectual property rights impose major restrictions on the ability of others to use their own physical property. I cannot use my property to reprint copyrighted works or incorporate patented inventions in a new product design. This too, is a significant difference between intellectual and real property, and a good reason for limiting the scope of the former more than the latter.

II. Why Perpetual Copyright is Unconstitutional.

Finally, Helprin's proposal is probably unconstitutional. The Copyright Clause does not give Congress the power to create perpetual copyright. Instead, it only gives it the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Helprin tries to get around this wording by claiming that Congress could simply "extend at will the term of copyright," and do so repeatedly. However, he ignores the fact that constitutional text allows Congress to create intellectual property rights only in so far as they "promote the Progress of Science and useful Arts." Copyright can only be extended if doing so furthers the creation of useful ideas and inventions. In cases such as Eldred v. Ashcroft, the Supreme Court has (in my view mistakenly) given Congress substantial deference in determining whether an extension of the copyright time limit really is needed to "promote . . . progress." However, even a deferential Court might recoil from a plan to extend copyright forever. Not only is perpetual copyright not needed to promote innovation, it is likely to actually impede it by making it more difficult to create new works that build on copyrighted ideas and images from old ones.

UPDATE: For a detailed analysis of the ways in which indefinite extension of copyright would undermine innovation more than promote it, see this amicus brief in the Eldred case, authored by 17 prominent economists from across the political spectrum.

UPDATE #2: James Grimmelman of Prawfsblawg rounds up critical reaction to Helprin's piece from various other legal scholar/bloggers.

UPDATE #3: For a more detailed explanation of the reasons why perpetual copyright is unconstitutional, see this excellent article by Glenn Reynolds/Instapundit and Robert Merges. As Glenn notes in a recent e-mail to me, some of the reasoning of this article was rejected by the Supreme Court in its Eldred decision. In my view, however (not to mention Glenn's!), the Court got it wrong. In any event, even Eldred does not explicitly endorse completely unlimited copyright extension.

House Agriculture Committee Passes Eminent Domain Reform Bill:

The House Agriculture Committee recently passed an eminent domain reform bill that would withhold federal "economic development" funds from state and local governments that condemn property for transfer to other private parties (hat tip Jacob Sullum). The text of the bill, known as the Strengthening the Ownership of Private Property Act, is available here. As Jacob Sullum correctly points out, this Act is much stronger than the Bond Amendment, the previous eminent domain reform bill enacted by Congress in 2005 (for a detailed analysis of the largely ineffectual Bond Amendment, see my paper on Post-Kelo eminent domain reform, pp. 35-36). The new bill only allows exceptions for takings that transfer property for 1) public utilities, 2) roads and common carriers, 3) aqueducts and pipelines, 4) privately operated prisons and hospitals, and 5) "any use during and in relation to a national emergency or national disaster declared by the President under other law." The last exception is potentially troublesome given the abuses of eminent domain that took place in the aftermath of Hurricane Katrina. See also here.

Still, if enacted, this bill would definitely provide property owners with greater protection against federally subsidized takings than current law. However, there are two problems. First, it is far from clear whether this law can pass the full House - and especially the Senate - unmodified. In November 2005, the House overwhelmingly approved the Private Property Rights Protection Act, a similar (though probably somewhat weaker) reform. However, the PRPA died in the Senate, thanks in part to the behind-the-scenes maneuvering of Senate Judiciary Committee Chairman Arlen Specter. It is difficult to say whether the new Democratic majority in the Senate will be more supportive of this kind of legislation than the Republicans were. But I'm not holding my breath on it.

The second potential problem is that the new legislation may actually only withhold relatively small amounts of funds from offending jurisdictions. This was a major weakness of the Property Rights Protection Act (see my paper, pp. 35-36). Unlike the PRPA, this year's legislation specifically enumerates the types of federal funds that would be withheld if the act passes. I have not yet had time for a detailed analysis of the range of funds that would be covered. But it seems to be similar to the likely scope of the PRPA, which I estimated to cover only 1.8% of all federal funds available to state and local governments (ibid., pg. 35). Moreover, it seems that many of the funds covered by the new act are agricultural subsidies that would be important only in rural areas where private to private condemnations are in any case rare.

That said, there is no question that, if it passes, the new law would have a significant impact in at least some jurisdictions, particularly those urban areas that depend heavily on federal funds. The interesting question is whether the full House and the Senate will support it. Unfortunately, the experience of the PRPA does not give me great cause for optimism.

Kmiec v. Lederman - Round II:

Douglas Kmiec has a guest post on Balkinization responding to Marty Lederman on the Comey testimony, the late night hospital visit, executive power, and all that. It's worth a look.

Sandy Levinson provides some commentary here.

Related Posts (on one page):

Kmiec v. Lederman - Round II:
Kmiec v. Lederman on Comey Testimony:

John Ashcroft and the War on Terror: The Washington Post has a fascinating Page One article on John Ashcroft's role in the War on Terror, and in particular Ashcroft's quiet role opposing hardliners in the Bush Administration. Some of the article reframes old news, but a good chunk of it seems new. Very much worth reading.

I've long thought that Ashcroft was a misunderstood figure. One interesting example is the drubbing Ashcroft received for the following statement from December 2001, responding to critics of the Patriot Act:

[T]o those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists for they erode our national unity and diminish our resolve[.]

  The media was completely clueless about what Ashcroft meant by this, and most people simply assumed that he meant that making civil libertarian objections to Bush Administration practices helped terrorists. I always thought Ashcroft meant something dramatically different. When Ashcroft made those remarks, in December 2001, he knew something that most people didn't: many criticisms of the Patriot Act had been surprisingly dishonest. It was embarrassingly common for critics of the legislation to make bogus claims about what the Patriot Act did. (Why that happened is a really interesting question; I haven't seen anything like it before or since.)

  Ashcroft must have been deeply annoyed by this, because it was creating a false impression both within the U.S. and abroad that the government had responded to 9/11 by imposing a police state. So Ashcroft criticized those who were trying to scare people with bogus claims of lost rights -- that is, illusions of lost liberty, or, to coin a phrase, "phantoms of lost liberty." But the press and the public didn't understand what Ashcroft meant, so his language was completely misunderstood.

  It goes without saying that Ashcroft was no card-carrying member of the ACLU. But I think his role was more complicated than many have assumed, and I'm glad to see that a more nuanced and accurate picture is surfacing.

Cheers!

Before I tender my farewell, let me say how tremendously impressed I have been at the depth of knowledge and passion for soccer that I’ve found amongst the eminently eclectic readership of the Volokh Conspiracy. Now I must return to the study of mutual funds that supports these football musings.

I can’t resist a few final petits fours, so here is a parting amusement:

Many thanks to Eugene Volokh and his co-Conspirators for their very gracious invitation and willingness to endure a week in the soccer terraces. I look forward to the 2010 World Cup in South Africa, when we can revive these debates or, even better, witness a tournament so successful that we don’t need to. Until then, I’ll be cheering on Liverpool in their Champions League final this coming Wednesday.

Related Posts (on one page):

Sunday Song Lyric: In January 1964, Sam Cooke recorded "A Change Is Gonna Come," an uncharacteristically weighty song for the man who wrote and recorded "Cupid," "Twisting the Night Away," and "You Send Me." Cooke was inspired to write the song by Bob Dylan's "Blowin' in the Wind." According to Rolling Stone, "What struck Cooke was the challenge implicit in Dylan's anthem. "Jeez," Cooke mused at the time, 'a white boy writing a song like that?'" The song became something of a civil rights anthem, and it garnered the No. 12 spot on Rolling Stone's Top 500 Songs of All Time." For a variety of reasons, it struck me as a good song for today. Here is how it begins:

I was born by the river in a little tent
And just like the river, I've been running ever since
It's been a long time coming
But I know a change is gonna come

It's been too hard living, but I'm afraid to die
I don't know what's up there beyond the sky
It's been a long time coming
But I know a change is gonna come.

The full lyrics are available here.

Saturday, May 26, 2007

Friday, May 25, 2007

Thursday, May 24, 2007

Wednesday, May 23, 2007

Tuesday, May 22, 2007

Monday, May 21, 2007

Sunday, May 20, 2007