The Volokh Conspiracy

Saturday, May 26, 2007

[Orin Kerr, May 26, 2007 at 11:15am] Trackbacks

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.

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[Ilya Somin, May 26, 2007 at 6:46am] Trackbacks

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:

92 Comments

[Ilya Somin, May 26, 2007 at 1:11am] Trackbacks

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:

12 Comments

Friday, May 25, 2007

[Todd Zywicki, May 25, 2007 at 5:39pm] Trackbacks

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.

62 Comments

[David Kopel, May 25, 2007 at 4:54pm] Trackbacks

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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[Orin Kerr, May 25, 2007 at 2:24pm] Trackbacks

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."

51 Comments

[Orin Kerr, May 25, 2007 at 2:01pm] Trackbacks

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.

57 Comments

[Orin Kerr, May 25, 2007 at 12:52pm] Trackbacks

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):

39 Comments

[Randy Barnett, May 25, 2007 at 12:19pm] Trackbacks

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.

24 Comments

[Todd Zywicki, May 25, 2007 at 12:19pm] Trackbacks

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.

6 Comments

[Dale Carpenter, May 25, 2007 at 10:53am] Trackbacks

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.

29 Comments

[Randy Barnett, May 25, 2007 at 10:39am] Trackbacks

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.

3 Comments

[Einer Elhauge, guest-blogging, May 25, 2007 at 9:16am] Trackbacks

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.

25 Comments

[Ilya Somin, May 25, 2007 at 3:17am] Trackbacks

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.

149 Comments

Thursday, May 24, 2007

[Jonathan Adler, May 24, 2007 at 11:04pm] Trackbacks

"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.”

23 Comments

[Ilya Somin, May 24, 2007 at 10:21pm] Trackbacks

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):

50 Comments

[David Bernstein, May 24, 2007 at 9:14pm] Trackbacks

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.

19 Comments

[Jonathan Adler, May 24, 2007 at 8:43pm] Trackbacks

"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):

47 Comments

[Eugene Volokh, May 24, 2007 at 6:20pm] Trackbacks

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:

84 Comments

[Orin Kerr, May 24, 2007 at 6:17pm] Trackbacks

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.

3 Comments

[Eugene Volokh, May 24, 2007 at 5:55pm] Trackbacks

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.

28 Comments

[Eugene Volokh, May 24, 2007 at 5:48pm] Trackbacks

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.

89 Comments

[David Kopel, May 24, 2007 at 5:44pm] Trackbacks

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.

2 Comments

[Eugene Volokh, May 24, 2007 at 5:05pm] Trackbacks

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:

30 Comments

[Eugene Volokh, May 24, 2007 at 3:00pm] Trackbacks

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.)

25 Comments

[Eugene Volokh, May 24, 2007 at 1:56pm] Trackbacks

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.

Related Posts (on one page):

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

107 Comments

[Randy Barnett, May 24, 2007 at 11:31am] Trackbacks

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.

Related Posts (on one page):

15 Comments

[Randy Barnett, May 24, 2007 at 10:50am] Trackbacks

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:

Related Posts (on one page):

Blackstone and Copyright and Patent as (Limited) Property:
Literary Property:
Careful With Those Analogies:
Madison on So-Called IP:
George Lucas Wants You To Work for Him for Free:
All we need is "Love"?:

29 Comments

[Einer Elhauge, guest-blogging, May 24, 2007 at 9:16am] Trackbacks

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