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Saturday, June 2, 2007

Electioneering and Tax Law:

Organizations to which donations are tax-deductible (so-called 501(c)(3)s) — including religious organizations — aren't allowed to expressly support or oppose the election of candidates, and are limited in their lobbying for the enactment of legislation. General public education, including advocacy, is fine, but not electioneering or (too much) lobbying; if they want to do that, they need to set up arms that collect non-tax-deductible donations (so-called 501(c)(4)s, as opposed to the 501(c)(3)s).

The Court has upheld this scheme against First Amendment challenge, reasoning that tax exemptions for contributions are a form of subsidy, and the government can impose restrictions on what this subsidy is used for, so long as they are viewpoint-neutral (i.e., no electioneering would be fine, no electioneering in favor of racist candidates would not be). Of course, there are often difficulties in deciding what's forbidden express support or opposition and what's permitted education and advocacy; the IRS has new guidance on the electioneering side of the question.

In any case, Paul Caron (taxprof) passes along an interesting new controversy on this, not terribly novel legally but striking because of the speech involved: An Internet message from an evangelist that "If You Vote for Mitt Romney, You Are Voting for Satan." Talk about demonizing your opposition. In any event, an excerpt from Paul's post,

[T]oday's Washington Post item Separation of Church and State and Tax Exemptions:

Florida evangelist Bill Keller says he was making a spiritual — not political — statement when he warned the 2.4 million subscribers to his Internet prayer ministry that "if you vote for Mitt Romney, you are voting for Satan!"

But the Washington-based advocacy group Americans United for Separation of Church and State says the IRS should revoke the 501(c)(3) tax-exempt status of Bill Keller Ministries, nonetheless.

Paul points out that the evangelist's statement was indeed likely illegal (again, for a 501(c)(3) that's using tax-exempt funds).

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A Room Good Enough to Execute Someone?: From the San Franscisco Chronicle, via Howard:
  California's 15-month-old moratorium on executions was extended at least until October on Friday to give a federal judge time to visit a planned new death chamber at San Quentin and consider an array of proposed changes in the state's lethal injection procedures.
  At a hearing in San Jose, U.S. District Judge Jeremy Fogel said he needs to see the rebuilt execution chamber before hearing arguments on the state's revisions in prison staff selection, training and infusion of the lethal chemicals. . . .
  The judge tentatively scheduled a visit to the prison on Oct. 1 and a hearing on the state's plan the following day. He gave no hint of his assessment of the proposed changes, but made it clear that the case, and the moratorium, could last many months longer.
Will Judge Fogel be satisfied that the new room is a constitutionally adequate place in which to carry out an execution? Stay tuned. For prior coverage of the case, including a link to Judge Fogel's earlier opinion explaining why he thinks the design, lighting, and crowdedness of the room is constitutionally relevant, see here.
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Al Gore Versus the Unabomber:

I took the test many years ago, and got 50%, no better than guessing. I decided to try my luck again. Once again, 50%.

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Justice Ginsburg Speaks: In Thursday's New York Times, Linda Greenhouse had a very interesting essay on how outspoken Justice Ginsburg has become in her dissents, particularly in cases that touch on the Supreme Court's role in the political system:
The justice’s acquaintances have watched with great interest what some depict as a late-career transformation. “Her style has always been very ameliorative, very conscious of etiquette,” said Cynthia Fuchs Epstein, the sociologist and a longtime friend. “She has always been regarded as sort of a white-glove person, and she’s achieved a lot that way. Now she is seeing that basic issues she’s fought so hard for are in jeopardy, and she is less bound by what have been the conventions of the court.”

Some might say her dissents are an expression of sour grapes over being in the minority more often than not. But there may be strategic judgment, as well as frustration, behind Justice Ginsburg’s new style. She may have concluded that quiet collegiality has proved futile and that her new colleagues, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., are not open to persuasion on the issues that matter most to her.
   I'm just speculating, of course, but my tentative guess is the same as Debra Ness's: "She’s sounding an alarm and wants people to take notice." It's the same reaction I had to Ginsburg's warning about the Term back in January.

  The question is, why? One theory is that Ginsburg's goal is the same as Justice Blackmun's near the end of his career: to influence the outcome of the next Presidential election by rallying the troops. In his Planned Parenthood v. Casey dissent, in 1992, Justice Blackmun seemed to be speaking to voters: "I am 83 years old," Blackmun wrote. "I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today." Get the hint? A year later, Clinton was elected, and within two years Blackmun and Justice White had resigned and been replaced with Ginsburg and Stephen Breyer. This is just speculation, obviously, but I wonder if Ginsburg has Blackmun's efforts in mind. (Of course, if true, that doesn't mean Ginsburg herself is considering retiring after the next election; she may just want to influence the political system to increase the chances that future colleagues share her views.)
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Sixth Split on Lethal Injection Challenge:

Yesterday six judges on the U.S. Court of Appeals for the Sixth Circuit dissented from the full court's denial of a petition for en banc rehearing in Cooey v. Strickland, in which a divided panel concluded that the statute of limitations had run on a death-row inmate's Section 1983 challenge to the constitutionality of Ohio's lethal injection protocol. Judge Gilman, who dissented from the initial panel, wrote the brief dissent, joined by Judges Martin, Daughtrey, Moore, Cole and Clay.

Sentencing Law & Policy and the Ohio Death Penalty Information blog have more on the decision.

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Whitman on Libertarian Paternalism:

Economist Glen Whitman has two excellent posts criticizing libertarian paternalism, here and here. I was going to make some of these arguments in a new post myself. But Glen beat me to it, as well as adding some good points that I hadn't thought of!

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Friday, June 1, 2007

Trivializing antidiscrimination law:

I support antidiscrimination laws that prohibit certain types of group-based discrimination by government, including discrimination based on sexual orientation. I also support extending these principles to the private sphere on important matters like employment and housing, with some limitations and exemptions. On this, I may be less libertarian than some of my co-Conspirators. Nevertheless, I join David and Ilya in questioning the wisdom of the suit against eHarmony. My reasoning is a bit different.

I have no view on whether eHarmony's practice of excluding persons seeking same-sex mates violates any California antidiscrimination law. California courts should apply state antidiscrimination law — if the best construction leads to that conclusion — regardless of whether they think it's good policy under the circumstances.

I have no trouble saying, apart from whether this is right or even relevant as a matter of state antidiscrimination law, that eHarmony is engaged in "sexual orientation" discrimination. Discriminating on the basis of a trait (seeking same-sex mates) that is intimately tied to the status (homosexual) is the sort of discrimination that a sexual-orientation antidiscrimination law is properly concerned about. A policy that forbade yarmulkes, and only yarmulkes, is anti-Jewish even though Jews themselves aren't forbidden. Few policies that disadvantage gays take the form of, "No gays allowed." Even the Texas sodomy law, which applied only to same-sex sodomy, did not prohibit homosexuals from having sex — they simply had to choose opposite-sex partners for the identical activity. Yet I have no hesitation saying that law was anti-gay. Again, sexual orientation discrimination may not be problematic generally, or illegal in a particular case, or as applied to eHarmony's practice, but I think the practice at issue here is sexual-orientation discrimination.

I'm dubious about eHarmony's rationale for its practice: that its questions and answers are based on research tailored to heterosexuals that may not fit well for homosexuals. The dynamics of gay and straight relationships are very similar if not identical: the same sorts of problems arise (e.g., financial, division of labor, differences over child-rearing), the same traits are desired in mates (e.g., honesty), and so on. Given that eHarmony's founder is a Christian evangelical, the real objection is probably that eHarmony does not want to facilitate what it regards as immoral and unbiblical relationships. The business about its heterosexuals-only "research" seems pretextual, crafted to fend off litigation.

Ilya raises an interesting concern about federalism. California is a big market and its policies may, as a practical matter, have effects on interstate businesses. On the other hand, I'm not sure which way federalism cuts here. Federalism allows states to experiment with public policies and they shouldn't generally be required to meet the standard of the lowest-common discriminator, or the state with the most libertarian policies. Within broad limits, California should be able to experiment with forbidding anti-gay discrimination and not be put in a strait-jacket by other states' policies. There are constitutional limits on how far states can go to place burdens on the interstate economy when their policies are outliers, but that case has not been made here and I doubt it could be.

But I do think the suit is a bad idea. Modern antidiscrimination law is expanding in two ways that I think are very unhelpful. First, it is being applied in ways that infringe important liberties outside the commercial context. The Boy Scouts case, involving the exclusion of an openly gay scoutmaster, was an example of this. While the harm and indignity done to the gay scoutmaster, who'd been an eagle scout, was not trivial, requiring that the Boy Scouts let him lead troops violated the Scouts' associational and speech interests in very important ways.

Second, antidiscrimination law is increasingly being applied to trivial and/or pretty harmless discrimination that goes well beyond core concerns about things like employment and housing. The exclusion of Catholic Charities from offering adoptions in Massachusetts was unjustified because it was difficult to show how the group's anti-gay policy actually hurt gay couples seeking to adopt.

The eHarmony suit is an example of the trivialization of antidiscrimination law. It doesn't involve a core concern like employment or housing or even a traditional public accommodation. It's also very hard to see how any gay person is really harmed by the policy. Gays aren't lacking for match-making sites, either general ones or those tailored just to same-sex pairs. And personally, I wouldn't give my money to eHarmony regardless of what policy they adopt at this point.

The suit allows some opponents of antidiscrimination law to point, with some justification, to excesses as evidence that the underlying idea is bad. The claim against eHarmony, and a state law that sanctioned it, forgets the four most important words in public policy: up to a point. That point is passed when we make trivial and harmless discrimination, however dumb or prejudiced it is, a matter of legal concern.

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How Often Do Courts Cite Student-Written and Non-Student-Written Articles?

I've just come up with some estimates of this, based on samples from the first five months in 2007, and searches in MEGA;MEGA on Lexis. The estimates are only estimates, for a variety of reasons, but I think they're good ballpark judgments.

So my riddles to you:

(1) How many times per month do U.S. courts — in Lexis-accessible opinions — cite student-written law review articles (denominated Note, Comment, Case Note, and Casenote, though excluding faculty-written works denominated Comment)?

(2) How many times per month do U.S. courts cite non-student-written law review articles?

Let's see who can get closest to right, or at least closest to my estimates of what's right. (By the way, there are a total of about 25,000 Lexis-accessible cases put out per month.) [UPDATE: I should also note that there seem to be about 2500 student articles published per year, and about 9000 non-student articles.]

Related Posts (on one page):

  1. Citations of Student Articles:
  2. How Often Do Courts Cite Student-Written and Non-Student-Written Articles?
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Germans Vote With Their Feet:

This article in the Independent (a left of center British paper) documents how high-achieving Germans are voting with their feet to escape their government's flawed economic policies (hat tip Instapundit):

For a nation that invented the term "guest worker" for its immigrant labourers, Germany is facing the sobering fact that record numbers of its own often highly-qualified citizens are fleeing the country to work abroad in the biggest mass exodus for 60 years.

Figures released by Germany's Federal Statistics Office showed that the number of Germans emigrating rose to 155,290 last year . . . which equalled levels last experienced in the 1940s during the chaotic aftermath of the Second World War....

Stephanie Wahl, of the Institute for Economics, based in Bonn, said that those who are leaving Germany are mostly highly motivated and well educated...

Fed up with comparatively poor job prospects at home - where unemployment is as high as 17 per cent in some regions - as well as high taxes and bureaucracy, thousands of Germans have upped sticks for Austria and Switzerland, or emigrated to the United States.

The article emphasizes the potential damage to Germany from this "brain drain," and it is indeed true that the German economy may be hurt by losing some of its more productive citizens. In the long run, however, this kind of voting with your feet might actually help Germany by giving the government stronger incentives to change its policies. A government faced with the prospect of losing a large part of its tax base has strong incentives to clean up its act. And, as I explained in this article, among others, foot voting has significant advantages over traditional ballot box voting because foot voters have better incentives to become well-informed about their options.

Not all is sweetness and light for the German emigrants, however:

Switzerland already has a resident German population of 170,000. Its presence has even provoked a xenophobic backlash in the country's tabloid press. Earlier this year, the Swiss newspaper Blick ran an anti-German campaign which spoke of a "German invasion" and quoted readers who claimed they found the German immigrants to be "arrogant and rude". Many immigrants, however, say the benefits of lower taxes and pay up to three times higher than at home far outweigh the occasional xenophobic outburst.

The Swiss backlash is ironic because German-speakers are the majority ethnic group in Switzerland already. I was a visiting scholar in Germany in 2004. While there certainly are some "arrogant and rude" Germans, on the whole I found the people to be extremely polite, friendly, and helpful - more so than in most of the other countries I have been to, Switzerland included. I am a great admirer of Switzerland and its political system (which is a model for the containment of ethnic conflict through federalism and limits on government power). Sadly, however, not even the the Swiss are immune to anti-foreign bias.

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Spending Limits for University Student Government Candidates:

The Ninth Circuit just released a very interesting opinion on this subject (thanks to How Appealing for the pointer). The opening paragraph strikes me as a good model of how to provide an effective frame for a persuasive argument, a frame that will guide the reader's thinking as the rest of the work is read:

We are called upon to decide whether the University of Montana may impose a dollar limit on what a student may spend on his campaign for student office. The University’s limit did not affect how the money could be spent; rather, it directly told a student how much he could spend to get elected. The Federal Election Campaign Act of 1971 could not tell James Buckley how much of his money he could spend to be elected a United States Senator. Buckley v. Valeo, 424 U.S. 1, 51-54 (1976) (per curiam). Why, then, may a state university tell students how much they may spend to be elected to student office? Because, unlike the exercise of state-wide political self-determination at a national level at issue in Buckley, the student election at issue here occurred in a limited public forum, that is, a forum opened by the University to serve viewpoint neutral educational interests but closed to all save enrolled students who carried a minimum course load and maintained a minimum grade-point average. These educational interests outweigh the free speech interests of the students who campaigned within that limited public forum.

The court, I think, is quite right to conclude that because student government and student elections are university functions, they should be treated as limited fora, and that the test is therefore viewpoint-neutrality (clear here) plus reasonableness. Here's the court's reasonableness analysis, which also strikes me as persuasive:

The evidence before us clearly shows that the University views the spending limitation as vital to maintain the character of ASUM and its election process as an educational tool, rather than an ordinary political exercise....

We find that the spending limits reasonably serve this pedagogical aim. ASUM exists to teach students responsible leadership and behavior. Imposing limits on candidate spending requires student candidates to focus on desirable qualities such as the art of persuasion, public speaking, and answering questions face-to-face with one’s potential constituents. Students are forced to campaign personally, wearing out their [shoe]-leather rather than wearing out a parent’s -- or an activist organization’s -- pocketbook. Our conclusion is supported by the declaration of Gale Price, former ASUM President:

Unlimited spending in ASUM elections also would change the nature of the election process as a learning experience. The spending limits mean that students have to figure out no-cost or low-cost ways of campaigning. They have to plan ahead to figure out their strategy, rather than just dumping a lot of money into advertising materials at the last minute. They have to make decisions about allocating their resources effectively. Without spending limits, the well-off students would not have to face these constraints or make these kinds of decisions in the course of running for ASUM.

In any case, if you're interested in the issue, read the whole First Amendment analysis -- it's quite accessible even to laypeople. (You can skip the standing and sovereign immunity sections, though, unless you're interested in those topics.)

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What Book Should I Read Before Going to Law School?

As I mention below, lots of people ask me this question. Please post your answers here, but for now let me mention mine: A good English usage dictionary — my favorite is Webster's Dictionary of English Usage, but Garner's A Dictionary of Modern American Usage is good, too. (Garner also has A Dictionary of Modern Legal Usage, which may be worth reading as well, but it covers a different set of matters.)

Of course, this is also good advice for anyone who wants to go into a profession that requires writing English prose for a living. When words are your tools, you need to know them well, (1) so you can convey the right meaning, (2) so you can convey the right meaning without needlessly distracting or annoying the reader, and (3) so you can convey the right meaning without the reader's concluding, fairly or unfairly, that you're ill-educated.

And the trouble is that many people misuse words without knowing they're misusing them, or use words that some dislike (again, whether or not the dislike is well-founded) without knowing that they're risking condemnation. The dictionary is a good way of knowing where the linguistic land mines are.

Plus, at least to me, these dictionaries are fun reads, especially when you read a few pages at a time. Each page has some interesting and surprising tidbits, and the usage dictionaries are also pretty well-written; I'm particularly fond of the style of Webster's.

Of course, knowing other things about writing — how to craft, organize, and edit sentences, paragraphs, and documents — is more important. But most of the people who ask me have already heard "read Strunk & White" (though I should note that not everyone is wild about it). They'll have read it or something like it, though they probably will have a hard time putting it into practice; that's just the nature of writing advice. In my experience, though, knowledge about usage rules is much easier to put into practice, even if it means just remembering that there's a problem with some word (so that you can look up the word again). So that's my tip; use it if you can, and suggest your own in this separate thread if you'd like.

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What Book Should I Read Before Going to Law School?

Lots of people ask me this question, and I don't have many good answers. (I have one, but I'll post it separately.) Can any of you suggest something that you think helped you, or helped friends or students of yours?

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Brewing Scandal at CNBC: Allegations of Cheating in Stock Contest.--

There is a fascinating, though minor, scandal brewing over at CNBC.

CNBC has delayed announcing the winner of its Million Dollar Portfolio Challenge contest, which ended a week ago, because of allegations of cheating in the form of a version of after-market trading. With a $1,000,000 annuity as the prize, the contest proceeded in two stages: a 10-week contest followed by a 2-week finals for the 10 weekly winners and 10 others with the best overall portfolio results. There was also a 2-week consolation contest for those who didn’t make the finals. Although CNBC and its corporate blog have not explained the nature of the problem, commenters to other blogs have been posting some superficially plausible speculations about the complaints of the losing finalists.

So far we have:

(1) a string of highly suspicious (and almost impossibly savvy) trades by some of the 20 contestants in the finals,

(2) an unsubstantiated claim by an anonymous blog commenter that he knows how such trades were accomplished because he found a software glitch that he used to cheat his way to a near-winning performance in the consolation round contest, and

(3) the announcement by CNBC that patterns of suspicious trading and allegations of irregularities have caused them to launch an internal investigation before declaring a winner in the contest that ended a week ago.

It will be interesting to see how the journalists at CNBC handle this CNBC scandal, in particular what they disclose about when they first heard about any problems and what they tried to do to prevent any violations. So far Mark Koba, the corporate blogger assigned to the contest, has performed shamefully. If Koba has been muzzled by his superiors, he should disclose this fact in a matter of fact way. If he has been muzzled and ordered not to disclose that he has been muzzled, then he's in a tougher spot (journalism jobs are hard to come by; not every outrage is a quitting offense). Will CNBC sweep any irregularities under the rug or instead engage in serious financial journalism and be tough on anyone that they find to have used a software glitch to violate the rules of the contest.

In the absence of meaningful disclosure by CNBC, here is what has been alleged about how after-market trading might have been accomplished. Some companies release earnings before the market opens or during the trading day, but some release just after the market’s 4pm close. Contestants could make only one set trades every day, with their choices supposedly made by 3:59pm ET each afternoon, just before the market’s close. Traders were working with an imaginary portfolio of a million dollars. Each day before 4pm one could, for example, enter trades buying 200,000 shares of each of 50 stocks including the dozen or two stocks releasing earnings just after that day’s close. If nothing further were done, only the first of the 50 trades submitted would be completed, investing essentially all of the contestant’s portfolio in one stock (with perhaps a single share of a later low-priced stock being purchased as well with the few dollars remaining after the first trade was entered). Before the 4pm market close, the contestant could alter the priority of her 50 orders, which would change which stock trade would consume 99.9% of that day’s investment.

But according to allegations by blog commenters, if a contestant kept her computer CNBC pending trades window open at the close, she could wait for earnings to be released after 4pm and watch the movements of those stocks in after-market trading until perhaps 4:30pm. (Scroll down to comments on a non-CNBC blog here at 5/25/2007 10:09 AM, 5/25/2007 3:16 PM, 5/25/2007 3:38 PM, 5/25/2007 3:59 PM, 5/25/2007 4:31 PM, and 5/27/2007 6:14 AM.) The stock that jumped the most in after-market trading until 4:30pm could be moved to top of the priority list, and CNBC would then process that stock trade as if it had been made BEFORE the 4pm close, rather than AFTER the earnings were released a few minutes after 4pm.

If these allegations are true--and for now CNBC is not saying anything informative--CNBC has a mess on its hands, since presumably the same tactic could have been performed during the rest of contest as well. At least as to the 20 finalists, one hopes that CNBC has adequate computer time stamps to show when the priority of a set of orders was changed by a contestant. If not, they would be forced to rely on the statistical probabilities of one person (or several people) picking strings of winners.

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The Effects of Modest Amounts of Anti-Semitic Speech and Unfair Anti-Israel Sentiment on American Jews and Israel:

American Jews naturally worry about anti-Semitic speech, for the obvious reason that it could lead to anti-Semitic murder, other crimes, job discrimination, and more. They also worry about unfair criticism of Israel, because it could undermine American help for Israel, American trade and professional exchanges with Israel, and the like.

But it seems to me there are also contrary effects. American help for Israel -- especially private help -- is also undermined by any decline in American Jews' emotional connection to Israel, a decline that can stem from (1) growing assimilation, (2) a declining sense that Israel is unfairly embattled, and (3) a declining sense that Jews are unfairly embattled and need Israel as a defender and retreat of last resort. Likewise, what most undermines these days the welfare of the American Jewish community as an independent community (rather than just as individual people)? My sense is that the answer is assimilation and declining sense of common fate, rather than an unwillingness to identify as Jews for fear of ostracism or violent reprisal (a fear that was more serious some decades ago).

Modest amounts of anti-Semitic speech and unfair criticism of Israel, it seems to me, can strengthen American Jews' self-identity as Jews, and thus indirectly support both the preservation of the American Jewish community as a community, and strengthen support for Israel. Feeling embattled as a group tends to strengthen group solidarity. Hearing unfair criticisms for Israel tends to strengthen the sense that Israel is unfairly embattled and deserves more support. Feeling some fear of anti-Semitism reminds American Jews of the value of preserving American Jewish institutions. And it reminds American Jews of the value of protecting Israel, in case one day American Jews may need refuge somewhere just like European Jews once did. ("Home is the place where, when you have to go there, They have to take you in.")

If anti-Semitic speech became too common, these community-strengthening effects may be decreased (for instance, if American Jews became afraid to be publicly identified as Jews) or might be swamped by harmful effects (again, such as violence, ostracism, discrimination, or fear suffered by individual Jews). But my sense is that at modest levels, the existence of this speech in America is a net positive (not an unalloyed positive, but a net positive) both for Israel and for the American Jewish community. And we are talking these days about such modest levels, if one looks at the big picture of Jewish existence in America today.

So far I have tried to be purely descriptive: I have tried to describe what I think is an existing phenomenon, a phenomenon that is positive for Israel and for the American Jewish community as a community. (I should say that I'm a relatively assimilated Jew who doesn't care as much about the American Jewish community as a community as some do; I'm much more concerned with the welfare of individuals, Jewish or not, than with the welfare of the community. Still, even I see some value, so long as anti-Semitism does exist, in America and elsewhere, in protecting Israel and preserving American Jewish institutions.)

Now, though, let me shift to the prescriptive: I think that this phenomenon ought to further strengthen American Jews' support for free speech, including for free speech by anti-Semites and unfair, bigoted critics of Israel. (I think we should support such free speech even without this phenomenon, but I hope this phenomenon strengthens such supprot in others.)

Anti-Semitism, whether Muslim, white nationalist, or otherwise, is out there. Suppressing such speech might diminish anti-Semitism in some ways (for instance, if the suppression is effective and stops the persuasive or attitude-reinforcing effect of such speech), or it might increase anti-Semitism in some ways (for instance, for making the anti-Semites look sympathetic in some people's eyes, or making people who are from the same community as anti-Semites feel embattled and hostile to those who are seen as persecuting them). But on balance, the main effect of such suppression, if it is effective, will be to make American Jews feel more complacent. And publicly identifying and condemning such speech will remind American Jews that there is anti-Semitism out there, that it must be fought -- and that fighting such anti-Semitism and protecting against its most harmful effects is one reason that both Israel and American Jewish institutions need support.

Naturally, there are limits to this. Certainly no-one should foment anti-Semitic speech or conduct, or blow it out of proportion, or tolerate leaving actual anti-Semitic violence unpunished. Increasing group solidarity is not the most important thing.

But if you think that increasing group solidarity is on balance one important thing (either as an end or as a means), the First Amendment rights of American anti-Semites help you rather than hurt you. You shouldn't be demanding speech codes; you should be shipping in more video cameras (and of course demanding protection from violence for those who use them), and publicizing the bad speech that you find.

Free speech is valuable because it informs people -- and it informs people not just when the listener hears and believes the facts the speaker says, but also when the public learns more about the speakers. Publicly visible anti-Semitic advocacy is, at least in America today, an important informational tool: It informs American Jews of the value of Jewish institutions, and it presents this information in an especially emotionally effective way. Again, not in my view the best reason to support free speech, or even close to it. But those who don't share my views about the broader moral and instrumental value of free speech should, I think, consider this more immediate instrumental value.

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Israel and the South African Analogy:

Advocates of boycotts of Israel and Israelis, such as the British boycott Eugene blogs below, often draw an analogy between Israel's occupation of the West Bank and Gaza and South African apartheid. And just as South Africa was boycotted, they argue, so should Israel be boycotted.

For reasons that should be obvious to any objective observer, I find the South Africa analogy to be both absurd and obscene. However, let's assume for the sake of argument that Israel's occupation of the lands it captured in 1967 is indeed morally analogous to South African apartheid.

The relevant analogy would then have to be as follows. South Africa has publicly declared its willingness, indeed eagerness, to end apartheid, and in fact allowed the African National Congress to return from exile and administer most of South Africa, subject to government security conditions. The ANC and the South African government then launched into final status negotiations, at which time the South African government once again expressed its willingness to end apartheid, and offered a deal which most objective observers thought met 95% or so of the ANC's stated demands, and went much further than most observers thought that the South African government would ever be willing to go.

The ANC responded not by demanding the other 5%, not by launching a worldwide public relations campaign seeking to press the South African government to accede to its final demands, but by launching a terrorist war against the white civilian population of South Africa, resulting in hundreds of civilian deaths.

A few years later, the South African government unilaterally ended apartheid in about half of the disputed territory, turning sovereignty over to the ANC, and expressed its hope that the ANC would govern responsibly and that its withdrawal from this territory would ultimately form the basis for a new chapter in their relationship.

Instead, the black population of South Africa voted in a new government composed of black supremacists, who expressed openly and vigorously their hatred and contempt of white people, and swore that they would never negotiate any accommodation with the South African government, short of turning all of South Africa into a black supremacist state, with whites being forced to return to their "homelands". The new black government used its new territorial sovereignty to establish terrorist bases, smuggle weapons, and establish new military and political ties to other organizations that had genocidal views toward South African whites. White South African towns faced a constant missile barrage from this territory.

Even knowing the hatred leveled at South Africa during apartheid years, I find it hard to believe that under these circumstances anyone with a modicum of respectability would have been calling for boycotts of the South African government.

The long and the short of it is that calls to boycott Israel are not about "the occupation," but about calling into question the legitimacy of Israel per se. The boycotters are not anti-occupation, they are pro-Hamas. As such, they are morally culpable in Hamas's genocidal anti-Semitism, totalitarian Islamism, and so forth. Those who voted for the boycott should reveal their names publicly, so that people of good moral conscience can decide whether THEY should be boycotted.

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Ridiculous Prediction of the Week:

Washington Post: "George Mason University's Stephen Fuller called up a PowerPoint slide predicting that in 2057, the average annual household income for the region will be $1,307,000.

Whoo hoo! That sounded great. Then he pointed out that in 50 years, the average Washington area house will cost a whopping $14,061,000."

Putting aside the absurdity of trying to predict wages and housing prices fifty years out, I'd love to see the assumptions that allow housing prices to be eleven times average household earnings. Are long term interest rates expected to decline to 2%?

I'd have thought Fuller would have gotten out of the prediction business given that he was quoted in Fall 2005 with regard to the D.C. area housing market as follows: "In a nutshell, you couldn't be in a better market. If you're worried about some bubble, or slow down, or something that's evil, just put yourself in any other market."

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Britain's Lecturers' Union Votes for a Boycott of Chinese Universities and Academics,

because China denies its students academic freedom. Oh, no, that's not right — it voted for a boycott of Saudi universities and academics, because of Saudi Arabia's second-class treatment of women. Whoops, I got that wrong — it voted for a boycott of Iranian universities and academics, because of Iran's oppressive government.

D'oh! Wrong again. As best I can tell it hasn't voted for a boycott of any of them; it only voted for "a boycott of Israeli universities and academics yesterday, in protest over Israel's treatment of the Palestinians." Of course.

Thanks to Aeon Skoble for the pointer.

Related Posts (on one page):

  1. British Lecturers' Union Boycott Discussions:
  2. Israel and the South African Analogy:
  3. Britain's Lecturers' Union Votes for a Boycott of Chinese Universities and Academics,
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47 U.S.C. § 230 and State Intellectual Property Rules:

In late March, the Ninth Circuit handed down an important holding about 47 U.S.C. § 230. This statute immunizes Internet Service Providers, Web site operators, and others from being held liable for what their users post. Thus, for instance, if you post something defamatory in the comments, we won't be liable for it to the defamed party, though you would be liable, and though we would be liable for content we ourselves originate.

The statute, though, exempts "intellectual property." That clearly means the provider or operator could be liable for copyright infringement by its users (subject to the separate rules provided by the Digital Milennium Copyright Act, 17 U.S.C. § 512), and likely for federal trademark infringement. But it's not clear whether it covers state law rules that are sometimes characterized as intellectual property laws, for instance the state law right of publicity. The Ninth Circuit held that the § 230 exemption covers only federal intellectual property laws, not state ones.

Bruce Wessel reports that yesterday the Ninth Circuit amended the opinion to justify its conclusion further:

In its petition for rehearing, Perfect 10 claims that our decision on this point conflicts with Universal Communication Systems, Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir.2007). But neither party in that case raised the question of whether state law counts as “intellectual property” for purposes of § 230 and the court seems to simply have assumed that it does. We thus create no conflict with Universal Communication.

We note that Universal Communication demonstrates the difficulties inherent in allowing state laws to count as intellectual property for CDA purposes. In that case, the district court struggled with the question of whether the “trademark dilution” claim brought under Florida Law counted as intellectual property for purposes of the CDA, and concluded that it was more like a defamation claim than a trademark claim. Id. at 423 n. 7. Rather than decide how to draw the line between defamation and trademark, the First Circuit held that “because of the serious First Amendment issues that would be raised” if Lycos were found liable, defendant had not violated the Florida statute. Id. at 423.

The First Circuit was able to sidestep the question of what counted as intellectual property on First Amendment grounds. But we cannot do so here. States have any number of laws that could be characterized as intellectual property laws: trademark, unfair competition, dilution, right of publicity and trade defamation, to name just a few. Because such laws vary widely from state to state, no litigant will know if he is entitled to immunity for a state claim until a court decides the legal issue. And, of course, defendants that are otherwise entitled to CDA immunity will usually be subject to the law of numerous states. An entity otherwise entitled to § 230 immunity would thus be forced to bear the costs of litigation under a wide variety of state statutes that could arguably be classified as “intellectual property.” As a practical matter, inclusion of rights protected by state law within the “intellectual property” exemption would fatally undermine the broad grant of immunity provided by the CDA.

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More on Republican Grassroots v. Establishment:

One other quick note on the conflict between the Republican establishment and the grassroots, and the idea that the problem is the message, not the messenger.

I was recently at an event where a distinguished political scientist argued that "spending" per se was not causing a problem for Republicans in elections. That may be. But it seems to me that the problem with the Republicans when they ran Congress was not just excessive spending, but rather the combination of spending and misplaced priorities that gave rise to a perception of corruption and incompetence in the administration of the government.

I became aware of this when a friend of mine here in DC--a largely nonpolitical fellow who leans conservative Republican when he votes--was seeking top secret clearance for his job and was told that the government was out of money to process new applications. To which he commented, "How can it be that the government can find enough money to build a 'bridge to nowhere' but not to process applications for top secret clearance?" Good question.

And for what its worth, a quick search in the Westlaw "Allnews" database reveals that the phrase "bridge to nowhere" appears 3993 times. Perhaps not all of those are for the infamous Alaska bridge, but that seems like a lot to me. Moreover, a quick glance notes that a surprising number of the references are in letters to the editor and similar citizen comments. I suspect that the "bridge to nowhere" became a shorthand for what was wrong with Republican party rule in Washington in recent years, not just as an example of reckless spending, but of self-interest and incompetence.

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Clueless Republican Establishment:

Is it possible for the Republican Party establishment to be more clueless than this?

The Republican National Committee, hit by a grass-roots donors' rebellion over President Bush's immigration policy, has fired all 65 of its telephone solicitors, The Washington Times has learned.

Faced with an estimated 40 percent falloff in small-donor contributions and aging phone-bank equipment that the RNC said would cost too much to update, Anne Hathaway, the committee's chief of staff, summoned the solicitations staff and told them they were out of work, effective immediately, fired staff members told The Times.

Several of the solicitors fired at the May 24 meeting reported declining contributions and a donor backlash against the immigration proposals now being pushed by Mr. Bush and Senate Republicans.

"Every donor in 50 states we reached has been angry, especially in the last month and a half, and for 99 percent of them immigration is the No. 1 issue," said a fired phone bank employee who said the severance pay the RNC agreed to pay him was contingent on his not criticizing the national committee.

Talk about blaming the messenger....

For the record, I personally don't have strong views on immigration. I just find it amazing that the response to grassroots opposition is to fire the telephone solicitors!

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Internet Dating Websites and Institutional Diversity:

David's post about the ill-advised lawsuit against E-Harmony for failing to provide options for same-sex dating is another example of the conflict between diversity within institutions and diversity across institutions. If the plaintiff gets her way, E-Harmony and other dating services will have to cater to both homosexual and heterosexual daters. By the same logic, J-Date will have to cater to gentiles as much as Jews, and so on. And of course gay dating websites would have to work to facilitate heterosexual dating as well.

This result would greatly undercut the advantages of specialization and diversity. It would lead to the homogenization of dating websites, as all would have to cater to all groups equally. No site would be able to specialize in serving the distinctive needs of any one group, whether that group be gays, Jews, or evangelical Christians. Basic economics - and basic common sense - suggest that members of all these groups can benefit from diversity and specialization across dating websites. While many of the individual sites may have a very homogenous clientele that effectively "excludes" various groups, there is enormous diversity in the dating website market as a whole; that diversity is of course partly the result of the homogeneity of individual sites. And for those who do not want to limit their dating to a particular group, there are numerous generalist dating websites, such as Match.com.

If the suit succeeds, dating websites could try to mitigate the harm it causes by providing only pro forma equality to those groups they don't really want to cater too. For example, J-Date allows non-Jews to join on the same formal terms as Jews; but obviously the site is much less useful to those seeking gentile mates than those seeking Jewish ones, and it has many features that cater to the specific interests of Jews (e.g. - allowing participants to indicate which Jewish denomination they belong to, but not providing the same options for adherents of other religions). This kind of approach presumably would not satisfy the E-Harmony plaintiff. After all, E-Harmony already permits gays to join on the same formal terms as heterosexuals. It's just that the service it offers (the opportunity to date members of the opposite sex) has much less value for gays than for heterosexuals.

UPDATE: I should have noted that this case also has an interesting federalism angle. Since the case involves only California antidiscrimination law, not federal, a victory for the plaintiff technically would only affect people in that state. But because of California's obvious importance as a major market, a win for the plaintiff might well compel dating websites to alter the services they provide nationwide. The only alternatives would be to 1) create a separate and more "inclusive" site for California residents alone, or 2) refrain from offering services to California residents entirely. This dilemma is an example of the broader problems caused by states regulating commerce in ways that have major effects outside their own borders. A well-functioning system of federalism must constrain state governments, not just the feds. For a more detailed discussion, see this article.

Related Posts (on one page):

  1. Trivializing antidiscrimination law:
  2. Internet Dating Websites and Institutional Diversity:
  3. Eharmony Sue for Sexual Orientation Discrimination:
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Some Distinctions, Please:

Commenter Pete writes, on the UC Irvine thread:

There have been incidents of violence by muslims against non muslims at UCI including throwing a cinderblock at an FBI agent's car, muslim students disrupted Daniels Pipes speech, student housing was defaced with swastikas, and here is a rather hateful speech called "Israel the 4th Reich" by Amir Abdel Malik Ali sponsored by the campus Muslim Student Union.

For those interested in what the chancellor is defending, here is a video of one of the events where the speaker blames Jews for 9/11 and where the blogger doing the videotaping is thrown out when discovered. The blogger was also followed by and assaulted by Muslims after they found out he was video taping the event.

I've heard similar catalogs from others who are faulting UCI, and seemingly calling for more speech restrictions.

The trouble is that this mixes together a great deal of behavior, some of which should clearly be punished -- though by punishment of the attackers, not restrictions on the speech of coreligionists -- and some of which is constitutionally protected.

Thus of course students who throw cinderblocks at cars, vandalize student housing, and assault people should be criminally punished, and punished by the university as well. If the police or UCI knew who the criminals were, had proof that they committed the crimes, and failed to punish them, that should be strongly faulted; likewise if the police or UCI didn't investigate the crimes adequately. But if the swastika drawers were simply never found, despite a reasonable investigation, then there's little to fault the police and UCI for. Certainly UCI can't punish Muslim student groups generally for the acts of individual Muslim students (unless there's some evidence that the group was actively involved in the act), much less for acts in which the actor is unknown.

Likewise, people who disrupt speakers (assuming we're talking about noise, rushing the stage, and the like, and not just holding a peaceful but offensive protest outside) should be disciplined. If you have evidence that UCI had the goods on them but didn't properly discipline them -- or refused to get the goods on them -- then pass them along, and we can decide to fault UCI for that. But again the penalties would have been punishing the students, not shutting down extremist Muslim events organized by other students.

But a "rather hateful speech called 'Israel the 4th Reich'" is, well, speech. The freedom of speech surely extends to expressions of hatred and hostility to foreign governments (or for that matter one's own government), however unfair or bigoted those expressions might be. Likewise, a "speaker [who] blames Jews for 9/11" is a speaker, engaged in speech. The freedom of speech likewise extends to arguing that there are government coverups and malign conspiracies, even when we think such theories are foolish and hateful.

University chancellors should defend the right to engage in such speech. And certainly the fact that some Muslim students have engaged in vandalism and assault doesn't warrant a university's stopping other Muslim students from inviting other Muslim speakers who want to engage in constitutionally protected speech.

Related Posts (on one page):

  1. Some Distinctions, Please:
  2. UC Irvine Chancellor Speaks Up for Free Speech:
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Intercepted Cell Phone Calls:

[NOTE IMPORTANT UPDATE BELOW.]

Mickey Kaus writes:

On page 93 of the new Gerth-Van Natta Hillary Clinton book, a sentence describes how, during the '92 campaign, Hillary herself

"listened to a secretly recorded audiotape of a phone conversation of Clinton critics plotting their next attack. The tape contained disucssions of another woman who might surface with allegations about an affair with Bill. Bill's supporters monitored frequencies used by cell phones, and the tape was made during one of those monitoring sessions."

...

Isn't [this] not so legal? ... See also this exegesis of the elements of a violation of 18 U.S.C. 2511(1)(a)....

To answer Mickey's question, 18 U.S.C. § 2511(1) does provide (and as best I can tell did provide in 1992) that

Except as otherwise specifically provided in this chapter any person who--

(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;

[is guilty of a felony, and subject to civil suit].

Thus, if Hillary conspired with those who intercepted the phone conversations, solicited such interception, or aided that interception, that would be a crime.

What if the tapes just anonymously landed on her desk, so that there is no conspiracy, solicitation, or aiding, and she just listened to them and used them in her campaign? That too would be prohibited, by section (d), which equally covers any person who

(d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection.

Her only defense (assuming the tapes were pretty clearly a result of an intercepted communication) would be, I think, that the First Amendment allows her to use information that she indirectly got from someone else's intercept in crafting the campaign's own First Amendment activity. See the narrow and mysterious Bartnicki v. Vopper (2001), which makes most First Amendment calculations in this area hard to make, and ignore the temptation to make much out of Boehner v. McDermott (D.C. Cir. 2007) (en banc) (4-1-4), in which the swing vote turned on a special factor not present here (the fact that the defendant was a Representative whose conduct was also barred by a House Rule).

UPDATE: Orin, in the comments, points out that as of 1992 the law barred interception only of cell phone calls, not cordless calls. I had assumed the book passage was correct in saying they were cell phone calls, but if they were cordless calls, the materials that Orin cites (and Orin knows about such matters) would mean the behavior was legal. It's also possible that if Hillary used the material reasonably assuming that it was cordless calls rather than cell phone calls, she would be off the hook even if the calls proved to be cell phone calls after all.

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Thursday, May 31, 2007

Eharmony Sue for Sexual Orientation Discrimination:

Eharmony.com, the most profitable on-line dating service, is being sued under California law for discrimination based on sexual orientation for failing to include "women seeking women" or "men seeking men" categories on its website. Eharmony, for its part, claims that its services are based on research regarding what makes heterosexuals compatible, and because it has no similar research available for homosexuals, it does not provide services to them. Complicating matters is the fact that Eharmony's founder is an evangelical Christian with apparent ties to Focus on the Family.

The media reports I've found don't mention what is the underlying statutory basis for the lawsuit. I would imagine, however, that as an initial matter, the plaintiff will have to prove that this is indeed discrimination based on sexual orientation. Eharmony does not technically prevent gays and lesbians from using its services; rather, it provides services for people looking for partners of the opposite sex. Assumedly, any self-identified homosexual who decided to look for an opposite sex partner would be able to use Eharmony's services. Is this a distinction without a difference? I'm not so sure. I wouldn't think that a strip club featuring nude females could be sued for sexual orientation discrimination simply because few gay men would be interested in utilizing its services. On the other hand, if the club excluded gay men who did wish to ogle nude women (or hang out with men who did), that would clearly be discrimination based on sexual orientation.

If a court held that Eharmony's policy was nevertheless sexual orientation discrimination because in practice Eharmony has chosen to serve only a heterosexual clientele (and this would depend, I should think, on the relevant statutory language and how courts have intepreted it), Eharmony would still have the defense that its dating system (which, I understand, involves detailed questionaires) is based on heterosexual-specific compatibility research.

Finally, notwithstanding the recent Australian decision permitting the establishment of a gays-only bar, I wonder whether a favorable outcome for the Eharmony plaintiff would serve the interests of gays. If a dating site that serves only heterosexuals is guilty of sexual orientatation discrimination, so would a dating site that serves only homosexuals. Minorities, sexual and otherwise, tend to prize services specifically tailored toward them, and it woudl seem counterproductive to force Eharmony to serve people serving same-sex partners if the result was to inhibit or prohibit services specifically geared (perhaps with underlying research on compatibility) to such people.

As as aside, in You Can't Say That!, I discuss an Australian decision forbidding the establishment of a Jewish-only dating service. The decision was later overturned, but only because the owner of the service was able to present expert testimony about the "need" for such a service in a minority community. Of course, my view is that short of prohibiting fraud, the government shouldn't be in the business of regulating dating services, period.

Related Posts (on one page):

  1. Trivializing antidiscrimination law:
  2. Internet Dating Websites and Institutional Diversity:
  3. Eharmony Sue for Sexual Orientation Discrimination:
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UC Irvine Chancellor Speaks Up for Free Speech:

The L.A. Times reports:

UC Irvine Chancellor Michael V. Drake ... tried to explain [Wednesday] that campus events seen by some as anti-Semitic are actually expressions of constitutionally protected free speech.

Drake met with more than 600 members of the county's Jewish community who expressed concern about what they perceived as anti-Semitic activity on campus, much of it involving Muslim students....

UCI has become a flashpoint in the national Israeli-Arab debate that has created hard feelings between Muslims and Jews. This month, Muslim students on campus sponsored a presentation, "Israel: Apartheid Resurrected," protesting that country's policies toward Palestinians.

It was the latest in a series of events that have sparked tension between the groups on campus, with some Jewish students complaining that the exhibit relayed a message of anti-Semitism and hatred of Jews.

On Wednesday, Drake heard complaints that Jewish students were afraid to be on campus and was challenged repeatedly to draw a line between free speech and hate speech. But he said it was an impractical and impossible assignment.

"Free speech means simply that: free speech," he told one questioner.

To another, he said: "Speech is protected. It can be hateful. It can be wrong. It can be vile." Unlike speech, he added, violent acts are not protected.

The chancellor repeatedly said he found anti-Semitism abhorrent, calling it "the utterance of fools." But he also said the right of free speech allows Muslim students to sponsor speakers with whom he disagrees....

Sounds exactly right to me. If Jewish students are assaulted or threatened for being Jewish or pro-Israel (or anything else), that should be punished -- and if UCI isn't using adequate efforts to do this, then it should be faulted for that. But expression of anti-Semitic views should remain protected, just as expression of other views should remain protected.

As to the quote from "community member Richard Meyers" -- "[The Chancellor] keeps saying that he abhors hate speech, but he's unwilling to take a position on the issue of what to do about anti-Semitic activity" -- it sounds to me like the Chancellor (1) does abhor hate speech, (2) does take a position for punishing anti-Semitic violence, and (3) does take a position against punishing anti-Semitic speech. And these items are perfectly consistent: University chancellors may (and should) protect even speech they abhor, and distinguish protected speech from unprotected violence.

Related Posts (on one page):

  1. Some Distinctions, Please:
  2. UC Irvine Chancellor Speaks Up for Free Speech:
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Does It Matter That Sen. Brownback Doesn't Accept the Theory of Evolution?

Jonathan links to Sen. Brownback's explanation of his views, which do indeed seem to reject the proposition that man evolved through a natural process from lower life forms. Nor, as best I can tell, does he take the view that evolution took place but that the mechanism for evolution was set up by God. Perhaps I'm wrong on this -- his argument isn't crystal clear -- but it seems that he is viewing man as a product of separate creation:

While no stone should be left unturned in seeking to discover the nature of man’s origins, we can say with conviction that we know with certainty at least part of the outcome. Man was not an accident and reflects an image and likeness unique in the created order. Those aspects of evolutionary theory compatible with this truth are a welcome addition to human knowledge. Aspects of these theories that undermine this truth, however, should be firmly rejected as an atheistic theology posing as science.

How should this affect a person's judgment about whether he supports Sen. Brownback? I'm not sure I know the answer, but I thought I'd raise the question, and mention a few thoughts of my own. (Note that I am by no means a supporter of Brownback's, though I have no implacable hostility to him, either.)

1. We might argue that this shows Brownback believes things that are provably false, and that this reflects badly on his judgment. But while I myself believe in evolution, I can hardly say that divine creation is provably false, at least under any familiar standard of "proof." If God exists, and he can work miracles, he might have created man in a way that makes evolution look plausible. I don't see any evidence for this proposition, but I can't say I can disprove it. For that matter, I can't say that a theory that man was created by super-intelligent aliens -- either created from scratch or "uplifted," to borrow David Brin's science fiction term, from apes -- is provably false.

2. We might argue that this shows Brownback believes things about the physical world that are not based chiefly on reason and evidence, and that this reflects badly on his judgment. This is a classic burden-is-on-believers-to-show-it argument against belief in God: As a friend of mine put it, there is the same evidence for the existence of God (at least once evolution is available to explain the development of complex systems) as for the existence of werewolves. Yet we would comfortably say that "werewolves don't exist," and look askance at someone who says "wait, maybe they do exist, you can't prove that they don't." We usually put the burden on people who are claiming the existence of things to provide some evidence that they exist; a contrary view is seen by us as superstitious or unscientific (again, consider claims about werewolves, vampires, or ghosts).

Likewise, the argument would go, we should fault those who assume the existence of a God, and a miracle-working God at that, without real evidence or logical deduction. Of course, this assumes that we've rejected the logical arguments for the existence of God, but I've never found any of those to be particularly persuasive, and in my experience even many religious people don't rely on those arguments.

Note, though, that this argument would equally apply to candidates who sincerely believe in the Virgin Birth, in the Resurrection, in the parting of the Red Sea, and in any other miracle. Perhaps it should apply to them; but I do want to flag that this argument isn't peculiar to evolution.

3. We might argue that this shows Brownback, if elected President, will have a lousy science policy.

Evolution is not in some abstract sense the "simplest" or "most plausible" theory of the development of mankind or of other species. Divine creation is in some ways simpler, and to some more plausible. Evolution is the simplest or most plausible theory that doesn't require the existence of some external intelligence (whether God or aliens); in that respect, there is some truth to the argument that belief in evolution rests on a sort of judgment about the relevance of God just as creationism does.

But what makes evolution better is that this naturalistic assumption is much more productive of potentially useful predictions about the world. Compare, by analogy, the theories that the planets appear to move around the sky because of gravity, that the planets appear to move around the sky because divine beings push them, and that the planets appear to move around the sky because all reality is just a dream. The good thing about the gravity theory isn't that it's provably true and the others are provably false; they definitionally resist disproof. Rather, the gravity theory is the most useful theory -- most useful at predicting the location of planets, at developing machines, and more -- and the other theories aren't useful at all.

If this is right, then rejecting the theory of evolution would lead a Brownback Administration to misinvest science research resources, and to underinvest in research that assumes the theory of evolution. This might distinguish most beliefs about one-off miracles in the past; it's unlikely, for instance, that a government leader's belief in the Virgin Birth would lead to poor governmental judgments about funding of gynecology and obstetrics.

4. We might argue that electing Brownback would make America look foolish to world elites that accept the theory of evolution. On the other hand, note that this, too, is potentially true of electing people with various other religious beliefs; and query more generally how much we should guide our judgment by such concerns.

In any case, these are just some tentative thoughts. I offer them not because I'm sure about them, or because I feel I've settled on an answer, but just because I think this is an important intellectual and practical question, and I wanted to stoke the conversation a little.

Related Posts (on one page):

  1. Does It Matter That Sen. Brownback Doesn't Accept the Theory of Evolution?
  2. Brownback on Evolution:
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Brownback on Evolution:

At the first Republican Presidential debate, Senator Sam Brownback was among those who raised his hand when asked if any of the candidates did not believe in evolution. Today Senator Brownback takes to the New York Times op-ed page to try and explain his position.

The premise behind the question seems to be that if one does not unhesitatingly assert belief in evolution, then one must necessarily believe that God created the world and everything in it in six 24-hour days. But limiting this question to a stark choice between evolution and creationism does a disservice to the complexity of the interaction between science, faith and reason.

The heart of the issue is that we cannot drive a wedge between faith and reason. I believe wholeheartedly that there cannot be any contradiction between the two. The scientific method, based on reason, seeks to discover truths about the nature of the created order and how it operates, whereas faith deals with spiritual truths. The truths of science and faith are complementary: they deal with very different questions, but they do not contradict each other because the spiritual order and the material order were created by the same God.

Senator Brownback wants to argue that religious faith in a divine creator is compatible with the science of evolution, but he can't bring himself to embrace any aspects of evolutionary theory that are rejected by creationists. He explicitly accepts microevolution and rejects evolution insofar as it entails "an exclusively materialistic, deterministic vision," carefully eliding over his views of evolution's role in speciation. It's as if he wants to appear to take a position while leaving plenty of room to spin his views to various constituencies -- or, as Jack Balkin suggests here -- pretend to engage the subject with intellectual sophistication while continuing to reject the scientific validity of evolution.

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Bush Puts Forward New Climate Policy:

The Associated Press is reporting that President Bush is calling upon the leaders of the fifteen nations with the greatest carbon dioxide emissions to meet and set emission targets by the end of 2008.

UPDATE: More from Reuters here. One part of the proposal that seems long overdue is a cut in tariffs and other trade barriers that inhibit the proliferation of cleaner technologies.

FURTHER UPDATE: Here are some excerpts from Bush's remarks today about the new approach.

Bringing progress and prosperity to struggling nations requires growing amounts of energy. It's hard to grow your economy if you don't have energy. Yet, producing that energy can create environmental challenges for the world. We need to harness the power of technology to help nations meet their growing energy needs while protecting the environment and addressing the challenge of global climate change.

In recent years, science has deepened our understanding of climate change and opened new possibilities for confronting it. The United States takes this issue seriously. The new initiative I am outlining today will contribute to the important dialogue that will take place in Germany next week. The United States will work with other nations to establish a new framework on greenhouse gas emissions for when the Kyoto Protocol expires in 2012.

So my proposal is this: By the end of next year, America and other nations will set a long-term global goal for reducing greenhouse gases. To help develop this goal, the United States will convene a series of meetings of nations that produce most greenhouse gas emissions, including nations with rapidly growing economies like India and China.

In addition to this long-term global goal, each country would establish midterm national targets, and programs that reflect their own mix of energy sources and future energy needs. Over the course of the next 18 months, our nations would bring together industry leaders from different sectors of our economies, such as power generation and alternative fuels and transportation. These leaders will form working groups that will cooperate on ways to share clean energy technology and best practices.

It's important to ensure that we get results, and so we will create a strong and transparent system for measuring each country's performance. This new framework would help our nations fulfill our responsibilities under the U.N. Framework Convention on Climate Change. The United States will work with all nations that are part of this convention to adapt to the impacts of climate change, gain access to clean and more energy-efficient technologies, and promote sustainable forestry and agriculture. . . .

Last week, the Department of Energy announced that in 2006, our carbon emissions decreased by 1.3 percent while our economy grew by 3.3 percent. This experience shows that a strong and growing economy can deliver both a better life for its people and a cleaner environment at the same time.

At the G8 summit, I'm going to encourage world leaders to increase their own investments in research and development. I'm looking forward to working with them. I'm looking forward to discussing ways to encourage more investment in developing nations by making low-cost financing options for clean energy a priority of the international development banks.

We're also going to work to conclude talks with other nations on eliminating tariffs and other barriers to clean energy technologies and services by the end of year. If you are truly committed to helping the environment, nations need to get rid of their tariffs, need to get rid of those barriers that prevent new technologies from coming into their countries. We'll help the world's poorest nations reduce emissions by giving them government-developed technologies at low cost, or in some case, no cost at all.

UPDATE: Daniel Drezner rounds up some of the coverage here.

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"Capitalism Against Climate Change":

In today's W$J, economist R. Glenn Hubbard, former Chairman of President Bush's Council of Economic Advisors, makes the case for a carbon emission trading scheme along the lines proposed by the National Commission on Energy Policy.

We do not know how much long-term climate change will result from our ever-expanding economic activity — primarily from the burning of fossil fuels — or how much climate change is "safe." To understand this from an economic perspective, we need a flexible, measured approach, one that continues to research the consequences of climate change and how we can avoid damage in the future. This approach would establish a policy architecture that sends appropriate signals to businesses and consumers in order to spur climate-saving innovations, while engaging both rich and poor nations in similar, cost-effective activities to reduce the threat of climate change throughout the world. . . .

. . . near-term actions should not impose greater risks than the problem they seek to address. MIT economist Richard Schmalensee, a member of the NCEP, once put forward a helpful analogy: If you smell smoke at home, it would be silly to do nothing until you actually see flames, but you also should not hose down the house after one whiff of what might be smoke.

For the global warming debate, uncertainty justifies neither inaction nor over-reaction. As the smoke analogy suggests, the United States should pursue a moderate policy that can be justified as we learn more about the threat of climate change and the costs of alternative responses.

The NCEP proposal meets this test of taking serious action while not imposing economic risks greater than the threat of climate change itself. It comprehensively addresses all U.S. emission of CO2 and other climate change-related gases. It does this using one system: tradable permits. In such a system, the use of coal, oil and natural gas will require permits in proportion to their CO2 emissions, typically sold along with the fuel — so individuals need not deal with the permit market.

Those businesses and individuals who can reduce their fuel use and emissions most inexpensively will do so. Those who cannot will end up purchasing more permits and supporting those who can. In this way, the program flexibly encourages the least-expensive efforts to reduce emissions without constraining any individual or business. And revenue from the auction of a portion of these permits could be used to reduce the corporate income tax, blunting adverse economic consequences.

This approach, Hubbard argues, will help control emissions "without betting the bank." Can the same be said for any legislation likely to pass this (or any) Congress?

Related Posts (on one page):

  1. "Capitalism Against Climate Change":
  2. Choosing among Climate Policy Instruments:
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Blogging Defendant Blows Defense:

A Massachusetts pediatrician pseudonymously blogged a malpractice trial, spicing up his commentary with jabs at the plaintiff, plaintiff's attorney, and even the jury. The problem? It was his own trial. After he was forced to admit his authorship of the blog on the stand, the case promptly settled. The Boston Globe covers the story here. (LvHB)

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McDermott Lawyer's McGaffe:

From Daily Business Review, via Law.com, comes the story of a lawyer's "super-size" gaffe and its consequences.

Saying a bankruptcy judge was "a few french fries short of a Happy Meal" may cost an out-of-state lawyer the ability to practice in U.S. Bankruptcy Court for the Southern District of Florida.

The comment already has cost Chicago-based McDermott Will & Emery partner William P. Smith his client -- Miami Beach's Mount Sinai Medical Center & Miami Heart Institute.

Bankruptcy Judge Laurel Myerson Isicoff in Miami also slapped the hospital with a restraining order at the same hearing where Smith made his fast-food quip. She found Mount Sinai's anti-competitive actions in the bankruptcy case of South Beach Community Hospital violated bankruptcy law.

During a May 7 hearing, Smith told Isicoff, "I suggest with respect, your honor, that you're a few french fries short of a Happy Meal in terms of what's likely to take place."

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Wednesday, May 30, 2007

"Terror in the Skies," Three Years Later: Three years ago, a lot of bloggers were discussing Annie Jacobson's story about being on a flight involving an apparent terrorist "dry run." (It's no longer online, but it's now in book form. Snopes has a summary.) After awhile, the consensus was that it was all a false alarm; it looked like the group was just a music band, and Jacobsen had overreacted. Recently, the Department of Homeland Security released a version of its 2006 Inspector General report about the flight. If I read the report correctly, it confirms a lot of the suspicious behavior that Jacobson had reported (while not suggesting that the group actually had any evil plans). It's worth checking out if you wanted a follow-up to the Jacobson story.
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Beware Rudy's Reign?

The Cato Institute's David Boaz thinks Rudy Giuliani would be a most un-libertarian president, particularly given the expansion of executive power under President Bush.

Throughout his career, Giuliani has displayed an authoritarian streak that would be all the more problematic in a man who would assume executive powers vastly expanded by President Bush. . . .

Giuliani's view of power would be dangerous at any time, but especially after two terms of relentless Bush efforts to weaken the constitutional checks and balances that safeguard our liberty.

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Dam Trade-Offs:

The Reason Foundation's Shikha Dalmia challenges environmentalist calls to remove dams from western rivers. Hydroelectric dams may have been wasteful and environmentally destructive boondoggles when they were built, but now that they are in place they provide relatively cheap electricity without emitting carbon dioxide.

Once regarded as the symbol of national greatness, hydroelectric dams have now fallen into disrepute for many legitimate reasons. They are enormously expensive undertakings that would never have taken off but for hefty government subsidies. Worse, they typically involve changing the natural course of rivers, causing painful disruptions for towns and tribes.

But tearing down the Klamath dams, the last of which was completed in 1962, will do more harm than good at this stage. These dams provide cheap, renewable energy to 70,000 homes in Oregon and California. Replacing this energy with natural gas--the cleanest fossil-fuel source--would still pump 473,000 tons of additional carbon dioxide into the atmosphere every year. This is roughly equal to the annual emissions of 102,000 cars.

Given this alternative, one would think that environmentalists would form a human shield around the dams to protect them. Instead, they have been fighting tooth-and-nail to tear them down because the dams stand in the way of migrating salmon. Environmentalists don't even let many states, including California, count hydro as renewable.

Yet hydro is not the only power that some environmentalists oppose. Nearly every viable alternative energy source has provoked some amount of environmentalist opposition.

Their opposition to nuclear energy is well known. Wind power? Two years ago the Center for Biological Diversity sued California's Altamont Pass Wind Farm for obstructing and shredding migrating birds. ("Cuisinarts of the sky" is what many greens call wind farms.) Solar? Worldwatch Institute's Christopher Flavin has been decidedly lukewarm about solar farms because they involve placing acres of mirrors in pristine desert habitat. The Sierra Club and Wilderness Society once testified before Congress to keep California's Mojave Desert--one of the prime solar sites in the country--off limits to all development. Geothermal energy? They are unlikely to get enviro blessings, because some of the best sites are located on protected federal lands.

What to do? No source of energy is perfect; all involve trade-offs. Some like to think conservation is the cure, but marginal reductions in energy use will only do so much. If global warming is the greatest environmental threat, then it may be worth enduring other environmental impacts to reduce carbon dioxide emissions. In a world of infinite trade-offs, we can only do so much.

UPDATE: American Rivers responds here. Their bottom line: "To say that all dams are beneficial and should be protected, . . . is as absurd as saying all dams are bad and should be removed." The issue is which dams should (or should not) be removed and why.

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Dictum, Judicial Modesty, and Judicial Efficiency:

Last week, I blogged about the Ninth Circuit's reading-material-as-evidence case. Defendant was accused of attempting to seduce a 14-year-old girl. His defense was that he expected all along that the girl was actually an adult (which was indeed the case, though he didn't expect that the adult was an FBI agent) who was pretending to be 14. He thought, he argued, that their exchange was acting out a fantasy, and he was expecting to meet and have sex with an adult woman. The prosecution introduced evidence that the defendant had read explicit stories involving sex with children, in order to show that he really was intending to seduce a 14-year-old.

The defendant raised several arguments: He argued that the evidence was irrelevant, and thus violated Rule 401. He argued that the evidence was an impermissible attempt to infer conduct from past behavior, which violated Rule 404 (and maybe the First Amendment, given that the past behavior involved reading). And he argued that the potential of at least some of the evidence to create unfair prejudice substantially exceeded its probative value, which violated Rule 403. The en banc court rejected his Rule 401 and 404 arguments, but held that the conviction had to be reversed because the trial court had refused to read all the evidence before admitting it, and thus couldn't perform the proper unfair prejudice / probative value balancing required by Rule 403.

Judge McKeown, joined by Judges Pregerson, Kozinski, Thomas, and Berzon, concurred in the judgment, and wrote:

All fifteen judges on the en banc court agree on one undisputed fact and on the single reason to remand this case: the district judge did not read all of the pornographic stories admitted into evidence to weigh their probative value against the potential for unfair prejudice. Nothing more needs to be said.

Instead of simply stopping at deciding the case, the majority goes on at length about whether to overrule Guam v. Shymanovitz, 157 F.3d 1154 (9th Cir. 1998), which has nothing to do with the failure to review the evidence [but focuses on the Rule 404 question], and speculates about how the Federal Rules of Evidence might play out on remand. The bulk of the majority’s discourse is dicta. See United States v. Henderson, 961 F.2d 880, 882 (9th Cir. 1992) (defining dicta as language that is “unnecessary to [the court’s] holding”). Once the case goes back to the district court, we don’t know how it will be resolved. Maybe there will be a plea. Or, if there is a retrial, we don’t know what evidence the prosecutor will offer or how the district court will rule. Indeed, after this appeal, the prosecution may well reevaluate the need or admissibility of these salacious stories. Nonetheless, the majority offers a far-ranging discourse on Rules 401, 403, and 404, among other matters. The case can be resolved on a simple principle.

I see no reason to go further. Not surprisingly, the breadth of the majority’s opinion prompted Judge Kleinfeld’s thoughtful concurrence, which expresses concerns that I share.

Here's my question: Even if the majority's discussion of Rules 401 and 404 isn't quite dictum (and I think it's not, for complex reasons), the court could well have disposed of the case by just reversing on Rule 403 grounds without reaching Rules 401 and 404. But then there likely would have been a retrial, and the trial court would have had to face the very same Rule 401 and 404 questions. If the trial court decided those questions the same way, there'd be another appeal on those issues. The panel would have been bound by Shymanovitz, and would have reversed — calling for yet a third trial. Then there would have been another en banc call; if that failed, and the panel decision had stood, then there would be a third trial.

The result would be extra cost and delay, for the defendant, for the prosecution, for the trial court, and for the court of appeals, which would have had to conduct another 15-judge en banc hearing. What's more, consider how this would apply in other cases where there are several unrelated evidentiary issues, and not just two (here, the judge-didn't-read-it issue and the substantive Rule 401/403/404 issues).

Say the trial court makes five decisions, A, B, C, D, and E, and finding any of them to be an error would require a reversal; and say the court of appeals is firmly committed to "simply stopping at deciding" the minimum required to reverse. The defendant is convicted; the government appeals; the appellate court reverses on A. Now there's trial 2, at which the trial court makes B, C, D, and E (since it still thinks those decisions are right). The appellate court reverses on B. Now there's trial 3, at which the trial court makes C, D, and E. The appellate court reverses on C. This goes on until trial 6, at which the court finally retries the case without A, B, C, D, and E. Wouldn't it have been better for the appellate court to decide A, B, C, D, and E at once, so that the defendant, the prosecution, the witnesses, the trial court, and the court of appeals had to deal with only two trials, not six?

In fact, my recollection is that courts often do deal with other issues beyond the strict minimum needed to reverse, precisely because such issues are likely to come up again on retrial. I don't recall the cases off the top of my head, but I'm pretty sure that they are not uncommon. Is that approach, which is to say the en banc court's approach, the better one? Is Judge McKeown's approach the better one despite this efficiency concern? Is one better in some situations and the other in other ones, and, if so, where should the line be drawn?

Again, recall that this isn't just about abstractions about the judicial process. Some defendants can handle two trials but would be bankrupted by three. Some who would be bankrupted in any case could at least pay for the lawyer of their choice in the first two trials but have to rely on an overworked appointed public defender in the third trial. In this trial, the witnesses likely wouldn't be much traumatized by having to testify again and again, but in trials with a real child victim they would be traumatized. And of course any money and effort expended by courts, prosecutors, and appointed defense lawyers in extra iterations of this case is money and effort that they'll lack for other cases.

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Affirmative Action (in the Sense of Exemption from Antidiscrimination Law) for Gay Venues?

From Peel Hotel Pty Ltd., Victorian Civil & Administrative Tribunal, VCAT 916 (24 May 2007) (some paragraph breaks added):

8 The Peel is a hotel and social venue. It primarily provides (as well as its hotel services) dancing and music. It is very popular. It has many hundreds of patrons on weekend nights (including Fridays). Over a week, it will have thousands of patrons.

9 The Peel aims to provide its facilities primarily for gay men. While is has marketed itself primarily to the gay male community, it has not hitherto sought exemption from the EO Act because it was believed that it could operate in a way that welcomed all, excluded none, but focused on or was aimed primarily at gay male patrons. It has this focus because it seeks to provide a safe, non-threatening, comfortable and enjoyable social environment for the gay male community.

10 I accept Mr McFeely’s evidence that providing such an environment is important for a number of reasons. Although gay men are now less at risk than they were in the past to various issues and behaviours, there are still instances of sexuality-related violence, insult, ostracism, derision, harassment and hostility. These are directed to gay men by other members of the community. Some of these occur when gay men display towards each other what society would tolerate among heterosexuals behaving as a couple -– kissing, hugging, or expressing love, attraction or affection in a physically intimate way. This venue is designed to provide an environment where gay men can do these things, can socialise, can make friends, can meet and find prospective partners without an atmosphere of derision, hostility or insult or even of violence. It provides an atmosphere where they can express themselves physically or sexually in a way that would be acceptable among men and women in a mixed sex venue.

11 The venue aims to provide gay men with the same opportunities as mixed sexes have in the venues to which I have referred. There are many thousands of these venues across the Melbourne CBD....

13 The venue has operated without difficulty for many years. It is an all-night venue, operating from 9pm until dawn. It has live music and no cover charge. Perhaps because of these factors, increasing numbers of heterosexual men and women and lesbians have particularly over the past year asked to enter the venue. A number of difficulties have arisen. I accept Mr McFeely’s evidence and Sergeant Mercer’s evidence about these.

14 If heterosexual men and women and lesbians come to the venue in large groups, then their numbers may be enough to “swamp” the numbers of gay male patrons. This would undermine or destroy the atmosphere which the company wishes to create. Sometimes, heterosexual groups and lesbian groups insult and deride and are even physically violent towards the gay male patrons. In doing these things, they use sexually-based insults. Sometimes, groups seek to use the venue for parties and it is clear from Mr McFeely’s affidavit that these groups wish to look at the behaviour of the gay male patrons as a kind of spectacle or entertainment for the group’s enjoyment. Entry of these groups would undermine or destroy the unique atmosphere which aims to foster and not frighten or discomfit its gay male patrons.

15 I accept Mr McFeely’s evidence that there are a large number of alternative venues which provide similar kinds of services to that provided at the Peel Hotel. These venues can be attended by people of any sex, any sexual orientation or any gender identity. I also accept his evidence that there are a very significant number of venues which market their services to lesbians. The Glasshouse, which is a venue close to the Peel Hotel, is one of these.

16 The Peel does not wish to have an all-male or all-gay male environment. It simply wishes to preserve its primarily gay male environment and its non-threatening atmosphere in which gay males can feel comfortable to express affection, physical intimacy or sexuality in a way that will not make them a target of derision, hostility or criticism and where that behaviour might, if expressed in a mixed sex venue, lead to that hostility, derision or criticism.

Should the exemption be granted?

17 In my view, it should.... There is no express exception provision which clearly applies. However, the application is in the spirit of those express exception provisions which seek to allow special measures to be taken to redress disadvantage suffered by those with a particular attribute. An example of these is s82.

18 The exemption promotes that objective of the Act which is to promote the recognition and acceptance of everyone’s right to equality of opportunity. It seeks to give gay men a space in which they may, without inhibition, meet, socialise and express physical attraction to each other in a non-threatening atmosphere, in a way that heterosexual couples have in mixed sex venues.

19 It is also consistent with the scheme of the Act. The Act now includes attributes of sexual orientation and gender identity. It has always included the attribute of lawful sexual activity. The objective concerning the recognition and acceptance of equality of opportunity applies equally to all attributes, including these three. Just as it is consistent with the Act’s objective to provide special measures to redress disadvantage suffered by, for example, women or those with disability, so also is it consistent with that objective to provide this venue for those with a particular sexual orientation.

20 The exemption also seeks to prevent discrimination against gay men, for whom this venue is designed. The anti-social behaviour which would be at the heart of a decision to refuse or restrict entry to groups of heterosexuals or lesbians is sexuality-based behaviour and includes sexuality-based insults and derision. It would be most unfortunate if at this venue, gay men were subjected to the very behaviour that the venue seeks to protect them from.

I would add that I take a similar view of the restriction or refusal of entry to those groups who wish to use the venue for “hens’ nights” and the like, where they wish to use the gay male patrons as a form of entertainment. To regard the gay male patrons of the venue as providing an entertainment or spectacle to be stared at as one would at an animal at a zoo, devalues and dehumanises them. It is, although subtle, another form of sexuality-based humiliation or discrimination. In my view, it is appropriate to grant the exemption.

A few thoughts:

(1) I sympathize with everyone's desire not to be attacked or insulted, and gays certainly have special reason to worry about that. But if the concern is antigay violence or insults, I'm not sure how the "gay men only" policy would address that.

I take it that the bouncers at the nightclub don't have perfect gaydar; I doubt they'd evict a group of would-be harassers (likely an all-male group, I'd expect) because they can tell the harassers aren't gay. They'd evict them because they're being violent or insulting. Why then not just have a policy of evicting the violent.

(2) If the concern is about gays' discomfort with being viewed in a certain way, isn't that close kin to the concern that has long been used to support discrimination against gays? (A) Some straight men don't like feeling that they are being viewed with lust by some gays. (B) Some gay men don't like the feeling that their social activities are being viewed as entertainment by some women.

The premise of bans on sexual orientation discrimination is that attitude (A) is no reason to exclude people from public places based on sexual orientation: If you don't like what you think someone is thinking when he's looking at you, deal with it, don't have him kicked out. Why should attitude (B) be any more persuasive a justification for discrimination?

(3) If the concern is about gays wanting to be in a predominantly gay environment, my sense is that successful gay venues can generally accomplish this just fine without kicking out nongays. Such venues tend to disproportionately attract gays, and while there are occasional outsiders visiting, the repeat business will largely be those people who feel most comfortable in the environment, and most interested in the environment. (Maybe I'm too influenced by having lived near West Hollywood for so long, though; I'd love to hear what others with other experiences have to say about this.) And even if for some reason too many straights show up and the venue stops being seen as having "the atmosphere which the company wishes to create," I don't quite see why maintaining a mostly-gay atmosphere is any stronger a justification for discrimination than maintaining an all-straight atmosphere, an all-male atmosphere, an all-female atmosphere, an all-Armenian atmosphere, or whatever else.

(4) One can debate whether bans on sexual orientation discrimination (or other discrimination) in privately owned public places are sound. But it seems to me that the project of persuading people to treat people equally without regard to sexual orientation will be more retarded than advanced by having the antidiscrimination law itself discriminate. Even if there are exceptions to this, and one accepts "affirmative action" justifications for special treatment for historically disfavored groups, it seems to me that there ought to be at least some powerful and factually supported reason for any particular justification. I don't see much such reason here.

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Two Dollars . . . I Want My Two Dollars: Well, it's not a case about two dollars, but here's a federal appeal over a $25 processing fee issued for a traffic violation: United States v. Trimble. The Ninth Circuit holds that the magistrate judge violated the Constitution by imposing the fee on some traffic violators and not others based on the happenstance of which form they received. Hat tip: Decision of the Day.
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Fred Thompson Set to Run: Politico.com reports that Fred Thompson is likely to join the Presidential race over the July 4th weekend. USA Today adds:
In an interview with USA TODAY, . . . the former Tennessee senator not only makes it clear that he plans to run, he describes how he aims to do it. He's planning an unconventional campaign using blogs, video posts and other Internet innovations to reach voters repelled by politics-as-usual in both parties.
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Ledbetter v .Goodyear Tire & Rubber: Although I have no background at all in employment law, I was very interested in yesterday's 5-4 decision in Ledbetter v. Gooyear Tire and Rubber.

  The issue in the case was whether Ledbetter had filed her employment discrimination case before the EEOC in time: Federal law requires that a case must be filed within 180 days "after the alleged unlawful employment practice occurred." 42 U. S. C. §2000e–2(a)(1). Ledbetter worked for Goodyear for about ten years, and after she retired in 1998 she sued Goodyear for giving her low raises on account of her gender throughout the term of her employment. Goodyear responded that under federal law she could only sue for any discrimination within the last 180 days, and that no discrimination occurred within the 180-day window.

  Five Justices agreed with Goodyear: Alito, Roberts, Scalia, Kennedy, and Thomas. According to the majority, the case was simple and the result was clear based on text and a string of precedents. To figure out how the 180 day clock runs, you just identify the alleged discriminatory act and then count the 180 days. The discriminatory act was the discriminatory raise, so Ledbetter couldn't sue over discriminatory raises from years earlier. The majority seems sort of perplexed that you could look at the case differently; after summarizing an earlier precedent that pointed to the same result, Justice Alito wrote, "It would be difficult to speak to the point more directly."

  Justice Ginsburg dissented, joined by Stevens, Souter, and Breyer. Although Ginsburg did rely on one prior precedent, much of her opinion was based on policy concerns. According to Ginsburg, differences in pay increases may be hard to identify at first, and employees may not want to sue over them when they're unclear. Requiring employees to sue within 180 days of the discriminatory raise would gut the statute, because few cases would be brought. As a result, "the unlawful employment practice" should be read as the payment of the salary, rather than the pay raise itself; because pay raises are usually cumulative, that would let an employee sue for a discriminatory pay raise long outside the 180 day window.

  It's a very interesting case, I think. I don't know enough to know which side is right, as I haven't read the prior precedents or studied the statute. I do find myself inclined towards Alito's approach because of its traditional focus on text and precedent, but without delving into the cases I can't be certain.
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Lou Dobbs and leprosy:

A good column today about Lou Dobbs' latest whopper, that "invading" immigrants are bringing an epidemic of leprosy to the U.S.:

“The invasion of illegal aliens is threatening the health of many Americans,” Mr. Dobbs said on his April 14, 2005, program. From there, he introduced his original report that mentioned leprosy, the flesh-destroying disease — technically known as Hansen’s disease — that has inspired fear for centuries.

According to a woman CNN identified as a medical lawyer named Dr. Madeleine Cosman, leprosy was on the march. As Ms. Romans, the CNN correspondent, relayed: “There were about 900 cases of leprosy for 40 years. There have been 7,000 in the past three years.”

“Incredible,” Mr. Dobbs replied.

Mr. Dobbs and Ms. Romans engaged in a nearly identical conversation a few weeks ago, when he was defending himself the night after the “60 Minutes” segment. “Suddenly, in the past three years, America has more than 7,000 cases of leprosy,” she said, again attributing the number to Ms. Cosman.

To sort through all this, I called James L. Krahenbuhl, the director of the National Hansen’s Disease Program, an arm of the federal government. Leprosy in the United States is indeed largely a disease of immigrants who have come from Asia and Latin America. And the official leprosy statistics do show about 7,000 diagnosed cases — but that’s over the last 30 years, not the last three.

The peak year was 1983, when there were 456 cases. After that, reported cases dropped steadily, falling to just 76 in 2000. Last year, there were 137. . . .

So Mr. Dobbs was flat-out wrong. And when I spoke to him yesterday, he admitted as much, sort of. I read him Ms. Romans’s comment — the one with the word “suddenly” in it — and he replied, “I think that is wrong.” He then went on to say that as far as he was concerned, he had corrected the mistake by later broadcasting another report, on the same night as his on-air confrontation with the Southern Poverty Law Center officials. This report mentioned that leprosy had peaked in 1983.

Of course, he has never acknowledged on the air that his program presented false information twice. . . .

I have been somewhat taken aback about how shameless he has been during the whole dispute, so I spent some time reading transcripts from old episodes of “Lou Dobbs Tonight.” The way he handled leprosy, it turns out, is not all that unusual. . . .

The most common complaint about him, at least from other journalists, is that his program combines factual reporting with editorializing. But I think this misses the point. Americans, as a rule, are smart enough to handle a program that mixes opinion and facts. The problem with Mr. Dobbs is that he mixes opinion and untruths. He is the heir to the nativist tradition that has long used fiction and conspiracy theories as a weapon against the Irish, the Italians, the Chinese, the Jews and, now, the Mexicans. . . .

More to the point, if Mr. Dobbs’s arguments were really so good, don’t you think he would be able to stick to the facts? And if CNN were serious about being “the most trusted name in news,” as it claims to be, don’t you think it would be big enough to issue an actual correction?

That's a very good question. What does CNN have to say?

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Rolled by the "Enrolled Bill" Rule:

Yesterday the U.S. Court of Appeals for the D.C. circuit turned away Public Citizen's challenge to the validity of the Deficit Reduction Act of 2005 (DRA) in Public Citizen v. United States District Court for the District of Columbia. According to Public Citizen, the DRA was invalid because the House and Senate did not both approve the same version of the DRA. Rather, due to an alleged clerical error (that nonetheless altered substantive provisions of the bill), the two versions were different. This means the DRA never became a law, according to Public Citizen, because the bill signed by the President did not first pass both the House and Senate in accordance with Article I, section 7 of the Constitution.

The D.C. Circuit, in an opinion by Senior Circuit Judge Harry Edwards, upheld the district court's holding that the claim was foreclosed by Marshall Field & Co. v. Clark, an 1892 case in which the Supreme court held that "the judiciary must treat the attestations of 'the two houses, through their presiding officers' as 'conclusive evidence that a bill was passed by Congress.'" Once a bill is signed by the leaders of the House and Senate, it is an attested "enrolled bill" that "should be deemed complete and unimpeachable" for purposes of the Constitution's bicameralism requirement. This "enrolled bill" rule precludes the sort of challenge Public Citizen sought to advance. Public Citizen sought to distinguish its case from Marshall Field in various ways, or suggest that the decision had been tacitly overruled, but the D.C. Circuit rejected these arguments.

One interesting aspect of the court's ruling is it's conclusion that the enrolled bill rule presents a threshold question that may be resolved before concluding that the court has jurisdiction to hear the claim in the first place. Therefore, the D.C. Circuit concluded, it could dismiss the case under the enrolled bill rule before determining whether Public Citizen had standing to challenge the legality of the DRA in the first place. According to the court, it "is not obliged to decided jurisdictional issues before certain nonjurisdictional rules designed not merely to defeat the asserted claims, but to preclude judicial inquiry." In this case, the enrolled bill rule established by Marshall Field is "a non-merits threshold ground for dismissal."

Also interesting to note are the two rationales for the enrolled bill rule established in Marshall Field: separation of powers and the need for certainty in "the statute laws of the land." The Court rejected the idea that the judiciary should challenge the validity of laws that the two political branches attest were passed in accordance with the relevant constitutional requirements. Such a "spectacle" would subordinate" the legislature to the judiciary and "disregard" its coequal position in the government. Moreover, it could lead to unnecessary uncertainty in the law.

Better, far better, that a provision should occasionally find its way into the statute through mistake, or even fraud, than that every act . . . should at any and all times be liable to be put in issue and impeached . . . . Such a state of uncertainty in the statute laws of the land would lead to mischiefs absolutely intolerable.
Thus, an enrolled bill attested to by the Congressional leadership is itself "conclusive evidence" that it was passed by Congress and "the enrollment itself is the record, which is conclusive as to what the statute is."

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Don't "Allow Foreign Religions and Foreign Beliefs and Other Philosophies

to defile the very soil of this land." That's the message of a New Zealand church leader who is urging rejection of a New Zealand Human Rights Commission's draft statement that New Zealand "had no 'established religion,'" and who is supporting a declaration "that New Zealand was a Christian nation."

There are lots of different ways that a free nation can handle its religious history; I don't want to suggest that the approach of the American Constitutions -- an express prohibition on establishment of religion both in the federal constitution and in nearly all state constitutions -- or the approach of the U.S. Supreme Court's Establishment Clause precedent is the only right way. England is a free country, in which to my knowledge citizens enjoy a great deal of religious freedom and religious equality (at least with respect to the government) even though the Anglican Church is the established church. The same is true, to my knowledge, of many Western European countries.

My personal preference is for a system in which the government may not discriminate among religious people and institutions; generally may not discriminate in favor of or against religious people and institutions (subject to some possible narrow exceptions that I won't go into here); generally may not fund religious observances in their capacity as religious observances (as opposed to giving religious people and institutions equal access to broadly available funding programs); but may engage in certain kinds of religious speech, especially those that can't be extirpated without denying a great deal of the nation's history. But there's a lot of room for different approaches here, it seems to me.

Yet no country, it seems to me, can sensibly be called free if it balks at "allow[ing] foreign religions and foreign beliefs and other philosophies to proliferate into [the] country," and officially treats religious conversion as a form of "defile[ment] of the very soil of this land." Freedom means the freedom of citizens to change their own minds, and to change the minds of others, through persuasion. And that's true on religious topics as well as political topics. One can debate on the borderline about which ideas might be so dangerous and so extreme to be off limits. (I prefer, however, the American approach, in which all ideas can be advocated, and in which the narrow content-based restrictions are designed so that they don't stop the debate about any ideas.) But any definition of "so dangerous and so extreme to be off limits" that covers all non-Christian -- or non-Muslim or whatever else -- ideas is a definition that's inconsistent with freedom.

Now it doesn't sound like the church leader (Bishop Brian Tamaki) and the other participants are expressly calling now for a prohibition on other religions. But listen to Tamaki's statement: "This nation must have the right to be able to discuss and to talk about whether we are going to establish and affirm and accept our religious identity as a country, or whether we are going to walk away and let that be lost, perhaps forever, and to allow foreign religions and foreign beliefs and other philosophies to proliferate into our country and begin to defile the very soil of this land." He certainly sounds like he doesn't want to "allow foreign religions and foreign beliefs," and like he thinks his audience agrees. He sees foreign religions as not just error but as a "defile[ment]." He sees the two alternatives are either "allow[ing] foreign religions and foreign beliefs" or "establish[ing] and affirm[ing] and accept[ing] our religious identity as a country."

The concern of those who support strong anti-establishment measures -- including ones stronger than I would support -- is precisely that modest tolerance for government endorsement of a religion will lead to broad intolerance (including governmental intolerance) for other religions. Justice Scalia and others who would take a narrower view of the Establishment Clause stress that one can have some degree of endorsement of broad religious traditions but still have religious freedom and religious equality in tangible rights and benefits. I take it that others in other countries take a similar view.

But Bishop Tamaki's rhetoric points in the opposite direction: a stark choice between anti-establishment rules on the one hand and "[dis]allow[ing] foreign religions and foreign beliefs." If that's the choice, I'll gladly choose the former, despite the bowdlerizing of government speech this may cause (and that I would not prefer). I hope that others in free countries (or countries aspiring to freedom) would do the same. And those who want a middle path, and who want to urge a Scaliaesque preservation of national religious traditions while still supporting -- and assuring the public that they support -- religious freedom and equal treatment of citizens without regard to religion, should distance themselves from views such as Bishop Tamaki's.

Thanks to InstaPundit for the pointer.

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Tuesday, May 29, 2007

Justice Ginsburg and the "Purpose" of Title VII:

Dissenting today in Ledbetter v. Goodyear Tire & Rubber Co., Justice Ginsburg writes, "This is not the first time the Court has ordered a cramped interpretation of Title VII, incompatible with the statute’s broad remedial purpose."

The history of Title VII and its "purpose" is, at best, much more ambiguous than that. Title VII was modeled after state antidiscrimination laws enforced by Fair Employment Practice Commissions, which spread throughout the North and Midwest after WWII. The FEPCs focused on mediation between the aggrieved party and the allegedly discriminating employer, often lacked much in the way of enforcement power, and were widely perceived as largely ineffectual. Title VII built on various aspects of the FEPCs; the requirement of getting EEOC approval to file a suit, for example, built on the FEPC's agency-centered procedures. Civil rights advocates did win the right to sue with agency permission, but with damage caps and time limits.

At the time of its passage, then, many thought that Title VII would turn out to be not much more consequential than the FEPCs had been. In fact, my impression is that the public accommodations provision of the 1964 Civil Rights Act was far more controversial than was Title VII, especially when advocates for the latter promised it would not interfere with union seniority schemes or mandate "reverse discrimination."

Much to most people's surprise, however, civil rights advocates within the Justice Department turned Title VII into a powerful tool, by bringing large-scale class actions against employers, often on a disparate impact theory that was very far from the minds of Congress in 1964. Moreover, while at the time Title VII was thought to primarily be concerned with discrimination in hiring, plaintiffs' attorneys eventually realized there was more money, and a greater possibility of success, in filing cases involving discrimination in firing. All of this was nudged along by sympathetic courts, who consistently proclaimed, quite falsely, that Congress had intended Title VII to be a very broad, vigorous, remedial statute.

Whatever one thinks of this outcome, there's no excuse for distorting the history of the statute. In fairness to Justice Ginsburg, Congress did endorse many of the innovations initiated by Justice and plaintiffs' attorneys in later legislation, such as the Civil Rights Act of 1991. [Update: But to the extent she is arguing that even unamended parts of Title VII should be interpreted broadly because the statute, in 1964, had a broad remedial purpose, that is a rather distorted view of the law's history. As Justice Ginsburg suggests, the current Congress might choose to adopt her interpretation of Title VII through new legislation, but that is hardly evidence that her interpretation is consistent with the scope and intent of the statute as written.]

FURTHER UPDATE: I think it's a mistake to look at legislative "intent", which is easily manipulated post hoc. Rather, the issue is the "purpose" of Title VII, which can be easily gleaned from the text of the statute: to provide certain limited rights for individuals to sue for employment discrimination. The law's purported "broad remedial purpose" is contradicted by the requirement of EEOC approval to sue, but its application only to large employers, by damage caps, and so on. To the extent this isn't clear from the face of the statute, its historical relationship to the modest fair employment practice laws should make it clear. Congress has since broadened the statute somewhat, but not to the extent that one could reasonably argue that the law is intended to skew the balance drawn between employee and employer interests heavily in favor of the employees, as Justice Ginsburg's opinion suggests.

I picked on Justice Ginsburg's opinion because its language, joined by three other Justices, recalls the excesses of the Warren and Burger Court. In those days, the Court would routinely ignore the fact that a particular statute resulted from legislative compromise among various interest groups, pick out a "purpose" that suited the Justices ideological proclivities (preventing discrimination [but not noting the countervailing interests of employers reflected in the statutory language], protecting the environment [but not noting the countervailing interest in business efficiency and profits], helping the poor [but not noting Congress's desire to limit administrative burdens on local government, and the cost to taxpayers], and so forth), declare that to be the sole, overarching purpose of the statute, and proceed to ignore statutory language and often common sense in interpreting the statute.

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Jesse Jackson Ally Calls for "Snuffing Out" Gun Store Owner:

The Second Amendment Foundation is complaining about this incident:

Chuck's Gun Shop, 14310 S. Indiana Ave., was the target of the protest [march led by Jesse Jackson]. The protesters blamed Chuck's, which is just across the border from Chicago, for many of the guns on the city's streets....

Jackson and Revs. James Meeks and Michael Pfleger encouraged the crowd to push for stricter gun laws. They vowed that the rally was just the beginning and that civil disobedience was possible....

The SAF reports,

In a stunning audio recording of Pfleger’s remarks, the pastor of St. Sabina’s Church can clearly be heard stating, “John Riggio ... we’re going to find you and snuff you out.” Moments later, Pfleger added, “We’re going to snuff out John Riggio, we’re going to snuff out legislators that are voting ... against our gun laws and we’re coming for you because we are not going to sit idly.”

The SAF argues that this is a death threat, and demands that the Justice Department investigate Pfleger for this.

My sense, from having listened to the audio, is that Pfleger meant "snuff out" as referring to lawfully driving Pfleger out of business using protest and social condemnation. This is a public, peaceful rally. The speaker does not have a history of violence. The surrounding statements relate to political actions. I know of no pro-gun-control violence against gun store owners; a statement such as this might be interpreted differently against the backdrop of such violence.

And of course whether something is intended to be understood, and is likely to be understood, as a threat does turn on context. The newspaper story, for instance, further reports: "About 30 counterprotesters stood outside the store. One man carried a sign that read, 'Jesse — How many armed guards do you have?'" In some situations, "How many armed guards do you have?" might be a threat, suggesting that you don't have enough guards to protect you against my retaliation. In this situation, it pretty clearly means "Isn't it unfair that you employ armed guards, but you're not respectful enough of law-abiding citizens' rights to arm themselves to guard themselves?"

This having been said, "snuff out" does seem like a pretty poor choice of words, since it sometimes means "kill," especially when used about a particular person. "Let's snuff out Jesse Jackson," for instance, would likely convey at least a possibility of physical menace, and a considerably stronger possibility than involved in the "armed guards" statement (which might be interpreted as threatening, but only with a good deal more indirection).

It's ambiguous enough that, in many contexts, people should understand it as likely not being a threat. But the ambiguity also suggests that it may rightly, and needlessly, worry people who think a less benign meaning is intended. Nor is there even the justification that there's something particularly logically or rhetorically apt about the statement that makes it an especially valuable way of conveying the message.

I see little justification in general for trying to drive out of business a particular gun store, at least in the absence of some evidence — and none is mentioned in the newspaper article — that it is somehow unusually lax in, say, checking buyers' backgrounds or stopping obvious straw purchases. That the gun store is particularly near Chicago is hardly justification itself; driving it out of business would simply require criminals to go a little further down the road. But at least there is a plausible argument to be had on these points. There seems to me no justification for putting the debate in terms often associated with murder.

UPDATE: Reader Brett Bellmore suggests that the call might be for illegal "civil disobedience" as well as legal protesting and social pressure; the article says, "Jackson and Revs. James Meeks and Michael Pfleger encouraged the crowd to push for stricter gun laws. They vowed that the rally was just the beginning and that civil disobedience was possible." I hadn't focused on possible civil disobedience against the gun store (I suppose a sit-in at a gun store would be conceivable but rather unusual). But if such action does turn from "possible" to "real," for instance involving blocking the door of the store or some such, then the action would indeed be illegal.

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Refusal to Give Religious Divorce and the Secular Legal System:

From the Canadian Press, Jan. 25, 2007 (via Daniel Pipes and David Bernstein):

The Crown says a Montreal man's refusal to grant his Muslim wife a Shariah divorce should be considered an aggravating factor when he is sentenced Friday for stabbing her and their baby daughter.... The Crown has asked for a seven-year sentence, citing the refusal to grant the Shariah divorce as an aggravating factor.

Of course, a secular Canadian divorce is all that's needed for secular purposes, in Canada and in other non-Muslim countries. But the article suggests that without a religious divorce, the wife might still be seen as married in some Muslim countries; and my sense (though please correct me if I'm mistaken) is that she might also be seen as married by the Muslim community, so that, for instance, there would be social pressure against her remarrying.

Should such extra punishment for failure to perform a religious ceremony be permitted? Or does it improperly coerce religious behavior? In the U.S., similar questions have arisen with regard to "Get laws," though these are special civil laws limiting access to divorce rather than enhanced criminal punishments.

Under Jewish law, at least as understood by many Jews, a civil divorce decree isn’t enough to terminate the marriage from a religious standpoint -- unless the husband gives the wife a bill of divorce, called a Get (pronounced just like the word “get”), she may not remarry. If she civilly remarries before receiving a Get, her sexual relations with her new husband are seen as adulterous, notwithstanding her civil divorce; also, any children born of such a civil remarriage are treated as illegitimate, and may not marry freely within the Jewish community. A recalcitrant wife may cause somewhat similar problems for the divorcing husband if she refuses to accept the Get.

Of course, all these impairments are purely a matter of Jewish law; American secular law does not at all enforce them. Nonetheless, they are taken seriously by many observant Jews, and women who have been refused Gittin and the smaller group of men whose ex-wives have refused to accept Gittin are put in a difficult position. The ability to impose this position can also give a spouse substantial leverage to try to negotiate a more favorable settlement as a condition of giving (or receiving) the Get.

The Get laws are the attempts of a few states to deal with this problem; here, for instance, is New York Domestic Relations Law § 253:

3. No final judgment of annulment or divorce shall thereafter be entered unless the plaintiff shall have filed and served a sworn statement:

(i) that, to the best of his or her knowledge, he or she has, prior to the entry of such final judgment, taken all steps solely within his or her power to remove all barriers to the defendant’s remarriage following the annulment or divorce; or

(ii) that the defendant has waived in writing the requirements of this subdivision....

6.... “[B]arrier to remarriage” includes, without limitation, any religious or conscientious restraint or inhibition, of which the party required to make the verified statement is aware, that is imposed on a party to a marriage, under the principles held by the clergyman or minister who has solemnized the marriage, by reason of the other party’s commission or withholding of any voluntary act....

7. No final judgment of annulment or divorce shall be entered, notwithstanding the filing of the plaintiff’s sworn statement prescribed by this section, if the clergyman or minister who has solemnized the marriage certifies, in a sworn statement, that he or she has solemnized the marriage and that, to his or her knowledge, the plaintiff has failed to take all steps solely within his or her power to remove all barriers to the defendant’s remarriage following the annulment or divorce, provided that the said clergyman or minister is alive and available and competent to testify at the time when final judgment would be entered....

9. Nothing in this section shall be construed to authorize any court to inquire into or determine any ecclesiastical or religious issue....

My sense is that the Get laws, as well as enhanced criminal punishments for refusing to give a religious divorce (whether Jewish, Islamic, or otherwise), would (in the U.S.) generally violate the First Amendment, because they would indeed impermissibly coerce the performance of a religious act. It's true that the religious act has important social effects among members of that religion, and that refusing to give it could be used as a bargaining chip in property settlement or child custody negotiations. But it seems to me that these social effects within the religious community, whether as a result of the performance or nonperformance of religious acts (whether divorce, excommunication, refusal to baptize, or whatever else), or for that matter as a result of practices such as shunning, must be beyond the scope of civil law. (The argument about shunning is subtly different from the others, but they're related, and the others all focus on the principle that the Establishment Clause bars the government from coercing the performance of a religious act.) Compare Megibow v. Megibow, 612 N.Y.S.2d 758 (1994) (ordering husband to give get, and not discussing the First Amendment question) with Aflalo v. Aflalo, 295 N.J. Super. 527 (1996) (holding that such an order would violate the First Amendment). See generally Lisa Zornberg, Beyond the Constitution: Is the New York Get Legislation Good Law?, 15 Pace L. Rev. 703 (1995).

Note, though, the twist in this case: It sounds like the refusal to give a religious divorce has not only a social effect within a religious community, but also has foreign legal ramifications. Might that justify legal pressure to give a divorce, on the theory that what is being required is an act with independent legal significance? Or should the religious nature of the act categorically foreclose the government (at least if the case happened in the U.S.) from mandating the act?

Finally, note that the matter may well be different if the parties had entered into a civil contract to perform a religious act (whether to give a divorce, to raise the children in some religion, or whatever else). The Canadian Press article notes one such case that was pending in January before the Canadian Supreme Court. ("The divorce agreement stipulated that [the husband] agree to the ghet -- something he did not do [for 15 years after the divorce]. [The wife], who now lives in New York, was awarded $47,500 because she couldn't marry or have children in the interim, but that judgment was overturned by the provincial appeals court.")

In any case, an interesting set of controversies -- and a reminder that a lot of the legal controversies in Western countries involving Muslim religious practices are, as a legal matter, closely connected with other controversies involving the practices of other religious groups.

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President Bush on Critics of Immigration Bill: From a Presidential address this morning in Georgia, with italics added:
Those determined to find fault with this [immigration] bill will always be able to look at a narrow slice of it and find something they don't like. If you want to kill the bill, if you don't want to do what's right for America, you can pick one little aspect out of it, you can use it to frighten people.
  UPDATE: Just to be clear, what I find notable -- and very unfortunate -- is the use of this kind of language coming from the President of the United States. I realize that it's easy to find such rhetoric online, and that some columnists use it. But it's different coming from the President of the United States, who deserves to be held to a much higher standard.
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Australian Muslim Group Warns of "Worrying" Response to Ayaan Hirsi Ali's Forthcoming Visit:

The Australian (a newspaper) reports:

Nada Roude, of the NSW Islamic Council, said Hirsi Ali's comments on the prophet Mohammed were a "no-go zone".

"They (prophets) are not just like you and me, they have special status — you're supposed to show respect," Ms Roude said.

"There have to be boundaries in how far you go in respecting other's beliefs. The reaction from the community is likely to be quite worrying." ...

Ms Roude said there seemed to be a double standard about who was allowed to visit Australia, particularly as Hirsi Ali's visit appeared to have the potential to incite hatred.

"Muslims are not treated the same," she said. "There are a set of rules for one community and another for the rest of the community. Anyone who causes harm to our society because they have the right to express their opinion is not welcome." ...

A tip: When you warn that your religious community will respond to critical speech in a "worrying" way, it is that response — and your use of that response as an attempt to deter such speech — that has the most potential to incite hostility. Oddly enough, citizens of a free country are often hostile (sometimes even to the point of hatred) to ideologies that demand suppression of critical religious views. And if your view is that Islam is a religion of peace, and that the overwhelming majority of Muslims don't support religious violence, then condemn the (by hypothesis) small and unrepresentative segment of the community that is likely to act violently rather than using the "reaction from the community" as a threat in your political advocacy.

As to one set of rules for one community and another for the rest of the community, does Australia really try to exclude people who harshly criticize Christianity, or depict Jesus in a blasphemous light? Coercive government actions to restrict blasphemy of Christianity are not completely unheard of in recent decades in Western democracies — see Otto-Preminger-Institut v. Austria, in which the European Court of Human Rights upheld such an action (in 1994) — but I've heard of none in Australia, nor any attempts to exclude visitors to Australia based on their blasphemous religious speech. And if Australia does allow free speech on religious matters, then who is the one who's seeking "a set of rules for one community and another for the rest of the community"?

Thanks to InstaPundit and to Andrew Bolt's blog at the Herald Sun for the pointer.

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Zany Filtering in the Dogpile Search Engine:

So go to dogpile (a search engine results aggregator, it appears), and enter "gun" or anything with it ("gun control," "guns of navarone," and more"). You'll get this response, unless you have a cookie set with dogpile from a previous iteration:

You've entered a Web search term that is likely to contain adult content.

Would you like to:
View Unfiltered Dogpile Web results with Adult Content.
View Filtered Dogpile Web results with NO Adult Content.
Filtered Results only include Web results from partners that provide such results.

Warning!!! If you are under 18 or live in a place that viewing adult content is prohibited, please revise your search.

Your Search Filter is currently moderate.

Of course, "sex discrimination" and anything else with "sex" will give you the same response; "breast cancer," however, doesn't, even though other "breast" queries do. "Murder," "making meth," and lots of other queries do not give this response.

Now I don't want to suggest that the filter is particularly onerous. In fact, in some ways it's the opposite: It lets your kids avoid it just by clicking on "View Unfiltered Dogpile Web results with Adult Content," or, at most by following the Preferences link in the search results (if you've set a preference that prevents the above warning from coming up). Dogpile even prominently tells the user, with every batch of search results, "Your urrent preferences are set to filter results for this type of keyword and/or search. Click here to change your preferences." Oh, and the first result in the "heavy" filtering mode for sex? "Free Sexy Webcam Striptease Videos" (which seems to be exactly what the name suggests).

On the other hand, how can we know? I'm not aware of whether dogpile actually filters out much gun stuff using its filter. The no filtering query returns 65 results while the heavy filtering query returns 62 results; I haven't compared them closely, partly because the most obvious difference is in the order of results — for instance, heavy filtering gives the Wikipedia entry for "gun" as #1 and the official site for "gun the game" as #2, and no filtering reverses that order.

But dogpile's description of its filtering hardly instills confidence: It describes the filter as being "designed to filter out sexually explicit material from your results." If that's all dogpile is doing, there seems to be little reason to warn readers about searches involving "gun." Something is happening under the hood, and we don't know what it is — an inherent problem with all filtering software, but even more of a problem when one part of the site tells you one thing about the filter ("designed to filter out sexually explicit material") and another part tells you another ("gun" is "a Web search term that is likely to contain adult content"). Doesn't make this search engine look particularly trustworthy, it seems to me.

Thanks to Peter Buxtun for the pointer.

UPDATE: Some readers have suggested that "gun" could be flagged because it's occasionally used as a slang term for "penis." But "peter" and "johnson" are probably more commonly used as slang terms for penis than "gun," and they rightly aren't barred. If every term that has a primary meaning far removed from "penis," but has sometimes been used as slang for "penis," were filtered, that would be a very long list.

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Jack Goldsmith, "The Terror Presidency": Via Melissa Waters and Peter Spiro, I learn that this fall Jack Goldsmith will be publishing a book, "The Terror Presidency: Law and Judgment Inside the Bush Administration." Sounds like a must-read. Jack's book promises to be a very interesting counterpoint to John Yoo's "War by Other Means: An Insider's Account of the War on Terror."
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Power to the Experts! - A Solution to the Problem of Political Ignorance?

As I noted in my last post, some advocates of libertarian paternalism try to get around the problem of political ignorance by suggesting that their policies be implemented by government-appointed experts rather than by elected officials. This is not a new argument. Totalitarians from Plato to Lenin have argued that the ignorance of the masses can be offset by concentrating power in the hands of an expert elite. So too have some moderate liberal scholars such as Supreme Court Justice Stephen Breyer and even libertarian Bryan Caplan. Breyer, the libertarian paternalists, and Caplan would never think of taking the argument as far as Plato or Lenin. But the core logic is similar: the experts know better than the average person - and therefore they should make the decisions.

For advocates of limited government, the rule of experts is like the vampire that refuses to die no matter how often we drive a stake through its heart. We've been fighting it for 2500 years, but have never quite managed to finish it off. Nevertheless, I'm going to put on my vampire slayer hat, and take a wee little stab at it.

As a solution to the problem of political ignorance, the rule of experts has major shortcomings relative to letting individuals make their own decisions with the help of markets and civil society.

First, it is essential to recognize that individual consumers don't have to rely on government for expertise. They can hire their own experts in the market or rely on more knowledgeable friends and acquiantances. When I get seriously ill, I go to a doctor. When I decide how to invest my money, I rely on the advice of friends who work in venture capital and investment banking. The real question is not whether we are going to rely on experts to help us make decision, but who gets to choose the experts and whether or not the experts will have veto power over the final decision on what to do.

I. Who Gets to Choose the Experts?

If instead of each individual choosing his or her own experts, there is a single set of specialists chosen in democratic elections, then the quality of the decision is likely to be impaired by political ignorance - the very problem that the rule of experts is supposed to stave off. Voters' choice of experts is just as likely to be compromised by rational ignorance and rational irrationality as any other electoral decision. By contrast, market participants generally have much stronger incentives to pick experts wisely.

Of course the experts could instead be chosen by nondemocratic means and insulated from political pressure. Yet, in the absence of democratic control, it will be difficult to ensure that the experts are actually serving the interests of the people as opposed to their own. By contrast, experts hired in a competitive market have better incentives; they know that if they pursue their own interests at the expense of the consumer's, they are likely to be out of a job.

Finally, both democratic and nondemocratic means of choosing government experts have a common weakness: both eliminate the option of dispensing with experts entirely. For some people, that may well be the best choice.

II. Should the Experts Get the Final Word?

The second major shortcoming of government-appointed experts relative to those hired in the market is the fact that government coercion deprives the consumer of the right to make the final decision. If I hire an expert in the market, I retain the right to reject his advice and pursuing a different course of action. This is a vitally important option. Although the expert is more knowledgeable than I am about technical issues in his field, I am more knowledgeable than he is about my own values. An expert on smoking knows more about the health risks involved than I do. But I am in a better position to determine whether the enjoyment I derive from smoking (if any) is enough to outweigh those risks. This insight is central to Hayek's classic critique of economic central planning, and it applies also to less extreme forms of expert control.

Libertarian paternalist policies that use expertise only to "nudge" or "frame" decisions for individuals are less vulnerable to the Hayekian criticism than are more aggressive exercises of expert authority. Yet even relatively modest assertions of expert-driven coercion carry the risk of preventing individuals from applying their own knowledge by increasing the cost of doing so. In any event, as Glen Whitman points out, the libertarian paternalist agenda goes well beyond reframing decisions. In many cases, it seeks to dictate them.

Ultimately, it is a question of whether we control the experts or they control us. Personally, I prefer the former.

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Monday, May 28, 2007

Political Ignorance and Libertarian Paternalism:

"Libertarian Paternalism" is all the rage in law and economics circles these days. To slightly oversimplify, libertarian paternalists claim that people systematically make mistakes as a result of cognitive errors and biases. Afterwards, they end up with outcomes that they themselves consider inferior to at least some of the alternatives they could have gotten by making a different decision in the first place. As a result, third party intervention (usually, but not always, by the government) can help people make the "right" decision. The difference between the new paternalism and the old is that the former defines "right" by reference to the actor's own preferences, not by some "objective" theory of morality or utility imposed by others. Thus, claim libertarian paternalists, we aren't saying that government should override people's preferences; we just want to help people get what they themselves want. For an introduction to the concept by Richard Thaler (a leading proponet) and a critique by NYU economist Mario Rizzo, see this debate in the Wall Street Journal Econoblog.

At least tentatively, I agree with libertarian paternalists that cognitive errors often lead people to make mistakes that they afterwards regret. The question is, however, compared to what? To justify paternalistic policies ("libertarian" or otherwise), advocates must prove not only that autonomous individuals make mistakes, but that the government will make fewer mistakes if you let it constrain individual choices.

If government policy is subject to democratic control, the key question is whether people are more irrational and ill-informed when they act as consumers than when they act as voters. Regular VC readers won't be surprised to learn that my answer to this question is an emphatic "no." Ignorance and irrationality heavily influence voting decisions, and voters are routinely ignorant about very basic things, such as the mere existence of extremely important government policies. They also hold irrational and ill-founded beliefs about even simple political issues (e.g. - believing that the economy is a zero-sum game and that free trade reduces national wealth instead of increasing it). While direct comparisons with markets are hard to come by, few if any market errors are as widespread as numerous voter errors (of which the free trade example is a notable case). Similarly, few consumers are likely to be as ignorant of the basic characteristics of the products they buy as the 70 percent of eligible voters unaware of the very existence of President Bush's medicare prescription drug plan, the largest and most expensive new government program voters have "bought" over the last 40 years.

Overcoming bias and cognitive error requires time and effort. In political markets, voters have only an infinitesmal chance of influencing the outcome (less than 1 in 100 million in a presidential election, for example). That gives you very little incentive to do the hard work of increasing your knowledge and overcoming your biases. By contrast, when you choose to buy a product in the market, your individual choice is highly likely to be decisive in determining what you get. That gives you a much stronger incentive to try to choose wisely. Casual empiricism bears out this hypothesis. I have yet to meet a person of any ideological persuasion who spends more time and effort deciding which candidate to support for president than they do deciding which car to buy. And it's certainly not because the presidency is less complicated than your car, or less important!

Libertarian paternalists may be right to be pessimistic about how well people make decisions in market settings (though my colleague Josh Wright has an excellent article questioning this). They are, however, implicitly overoptimistic about the quality of the decisions we make as voters.

For some libertarian paternalists, of course, the alternative to market decisionmaking is not democracy but decisionmaking by unelected experts. I will take up this possibility in a follow-up post.

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Memorial Day Blawg Review

is here.

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Memorial Day: The Associated Press has a summary of Memorial Day services and events today here. For an interesting site on the history and traditions of Memorial Day, visit usmemorialday.org.
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Bleg for Help re Morning Commute Down Clara Barton/MacArthur:

I haven't been able to locate a good D.C. traffic discussion board, but maybe a V.C. reader can help: how is traffic around 8:00 a.m. on the Clara Barton Parkway/Canal Road or MacArthur Blvd going south from Cabin John/Glen Echo/Bethesda? How long does it take to get past Georgetown? Thanks.

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Sunday, May 27, 2007

Were Mass Resignations Planned at DOJ?: We have known for a while that friction between DOJ and the White House over some kind of secret surveillance system led a number of top DOJ officials to come close to resigning back in 2004. Newsweek has a piece suggesting that the threatened resignations may have been broader than originally thought. Here is the picture Newsweek portrays, as told in a present-tense reconstruction:
Appalled by the White House's heavy-handed attempt to coerce the gravely ill attorney general, virtually the entire top leadership of the Justice Department is threatening to resign. The group includes the director of the FBI, Robert Mueller, Associate Attorney General Robert McCallum and the chief of the Criminal Division, Chris Wray. Some of them gather in the conference room of Deputy Attorney General James Comey, who describes Ashcroft's bravely turning away the president's men from his hospital bed. The mood that night in the conference room was tense—and sober. "This was a showdown," says a former senior Justice Department official who was there. "Everybody understood the choice they were making and the gravity of the situation. Everybody knew what the stakes were." A different source estimated that as many as 30 top DOJ officials would have resigned. . . . "This was not ideological," recalled a former Ashcroft aide. "This was about the difference between pushing the limits to the edge of the line and crossing the line."
Thanks to Josh Marshall for the link.
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Sunday Song Lyric -- Memorial Day Edition:

It seems to me that there are many song lyrics that should be appropriate for Memorial Day. Knee-deep in exam grading, however, I am devoid of inspiration for a song lyric today, particualrly one that would seem appropriate. So, I am leaving it up to you. What song lyrics would be appropriate for Memorial Day and why?

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They're Not Me:

David Schraub wants the real Jonathan Adler to stand up. He found three (including me) but forgot this one.

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