Saturday, July 14, 2007

The Ladies Night Case and the Rules for Class Action Lawsuits:

In my last post, I considered the constitutional flaws in attorney Roy Hollender's suit claiming that ladies nights at night clubs are unconstitutional sex discrimination. In this one, I explain why his proposed lawsuit also violates the rules governing class actions. According to the National Law Journal, Hollender is "seeking to be named class representative for all men charged more money or burdened by stricter time restraints than women at [four New York night] clubs over the last three years."

A class action is a law suit where one "named plaintiff" represents the interests of other individuals who are not directly involved in the case, but have suffered from the same allegedly illegal behavior that the plaintiff is seeking to prevent or rectify. Under the Federal Rules of Civil Procedure, a class can only be certified by a district court if it meets the standards set out in FRCP Rule 23. In this case, the crucial requirement is Rule 23(A)(4), which requires the court to ensure that the class representative "will fairly and adequately protect the interests of the class."

Hollender clearly fails to meet this requirement because many of the members of the class in question ("men charged more money or burdened by stricter time restraints than women" at the night clubs in question) actually benefit from these practices. At the risk of belaboring the obvious, a key purpose of ladies nights at night clubs is to benefit (heterosexual) men. Many night clubs and bars become relatively unappealing to men because the male-female ratio is too high, reducing male patrons' chances of picking up a date. By attracting more women, ladies' nights improve the dating odds for male patrons. To be sure, there are men such as Hollender who decry ladies nights as invidious discrimination. But many of the men belonging to the class specified in Hollender's suit probably prefer a night club with ladies night that increases the percentage of female customers to a nondiscriminatory policy that results in a more unbalanced male-female ratio. Many, perhaps the vast majority, of the men in the class Hollender proposes to represent have interests diametrically opposed to the result he seeks to achieve. For that reason, the district court should refuse to certify his proposed class.

Hollender says that "[w]hether this case succeeds or fails, it will result in a much needed victory for men." True enough (except maybe for the "much needed" part). If he wins, men who agree with him will get a "victory," but those who benefit from ladies nights will be harmed. If he loses, the male beneficiaries of ladies nights will have reason to celebrate. Since there are male night club customers with interests on both sides of the suit, Hollender should not be certified as an acceptable representative of this class.

UPDATE: I have corrected a minor but annoying typo in the first sentence of the post.

Related Posts (on one page):

  1. The Ladies Night Case and the Rules for Class Action Lawsuits:
  2. Ladies' Night and the 14th Amendment:
  3. Are "Ladies' Nights" Discriminatory?
Ladies' Night and the 14th Amendment:

Jonathan Adler posts on the extremely weak class action lawsuit claiming that ladies nights at private night clubs violate the 14th Amendment. Hopefully, the district court will dismiss this seriously misguided lawsuit. Attorney Roy Den Hollender's lawsuit is flawed because the Fourteenth Amendment clearly does not ban this kind of "sex discrimination" by private parties and because certification of the class would violate the rules governing class action lawsuits.

First, the constitutional point. I will cover the class action issue in a follow-up post.

The Equal Protection Clause of the Fourteenth Amendment clearly says that a "state" may not "deny to any person within its jurisdiction the equal protection of the laws." The Amendment does not ban discrimination by private parties, only that undertaken by states. Over the years, courts have sometimes ruled that private racial or sex discrimination can be imputed to states in cases where the private actor is actually an agent of the government or otherwise closely entertwined with it. However, Hollender is claiming that night club owners who institute ladies' nights are state actors merely because they are regulated and licensed by the government. This theory was specifically rejected by the Supreme Court in the Civil Rights Cases of 1883, which held that the Fourteenth Amendment did not give Congress the power to regulate common carriers, "places of public accomodation" (e.g. - hotels, restaurants) despite the fact that most such businesses were highly regulated often required to have government licenses. In his dissent, Justice John Marshall Harlan strongly emphasized the regulated and licensed nature of the businesses in question, a consideration that failed to sway the majority. Although criticized by many academics, the Civil Rights Cases remain binding precedent, and were reaffirmed by the Court in United States v. Morrison in 2000.

Moreover, there is good reason to believe that The Civil Rights Cases majority was right to hold that licensing and regulation alone do not equate to state action. Almost all important private activities are licensed or regulated to some extent. If Hollender's argument prevails, all would be subject to the same restrictions on ethnic, religious, and sex discrimination as are imposed by the Fourteenth Amendment on government. For example, marriage requires a state-issued license. On Hollender's theory, therefore, the Constitution would forbid individuals from engaging in racial, ethnic, or religious discrimination in deciding whom to marry, since the Equal Protection Clause surely forbids such discrimination by government. If the state bans Jews from marrying non-Jews, that is a clear violation of the Fourteenth Amendment under modern doctrine. Yet if licensing is enough to turn a private action into state action, then a Jew who marries a fellow Jew after rejecting gentile suitors solely on religious grounds would be a state actor engaging in unconstitutional discrimination.

It may be that some extreme forms of licensing or regulation do involve the state so pervasively in private activity as to convert that activity into state action for Fourteenth Amendment purposes. But that cannot be true for all types of regulation and licensing, as Hollender's theory requires.

Hollender is therefore right to foresee an "uphill" battle for his suit. He is, wrong, however to attribute his likely difficulties to the fact that "he is arguing on behalf of men and not women, whom he says the U.S. Supreme Court has given 'preferential treatment for past invidious, economic discrimination.'"

In reality, many of the Supreme Court's most important Equal Protection Clause precedents striking down laws that discriminate on the basis of sex involved discrimination against men. These include landmark decisions such as Craig v. Boren, the 1976 case that instituted the current "intermediate scrutiny" standard for government sex discrimination, and Mississippi University for Women v. Hogan (1982), an important case that ruled that an all-female state university was unconstitutional.

In the area of race discrimination, the Supreme Court has indeed given somewhat looser constitutional scrutiny to programs that benefit racial minorities as opposed to whites. That is not, however, true of the Court's constitutional scrutiny of programs that discriminate in favor of women relative to those that benefit men (the Courts statutory consideration of affirmative action for women under Title VII of the Civil Rights Act of 1964 is a different matter).

UPDATE: As commenter and lawprof Eric Muller points out, the Supreme Court's 1972 Moose Lodge (which held that a Moose Lodge was not a state actor merely because it had a state liquor license) decision probably undercuts Hollender's position even more clearly than the Civil Rights Cases do.

More Harry Potter:

[Warning: If you haven't finished all of HP through book 6, but you plan to, do not read this post, because it contains plot details.] To follow up on Ilya's post to kick off the weeklong build-up to Harry Potter 7...I recommend that serious Potterphiles check out Some very sophisticated analysis. On this page, you'll see links to buy some books--which I urge you to purchase with expedited shipping, so you can read them this week, and thereby understanding Book 7 in greater depth when you start reading it at midnight on Friday. "Who Killed Albus Dumbledore?" and "Unlocking Harry Potter" provide diverse analyses of the mystery, of Rowling's literary techniques, and of the omnipresent influence of alchemy.

At the least, these books demonstrate quite persuasively that what Harry (and the naive reader) saw on the Astronomy Tower in the climactic scene of book 6 was certainly not the full explanation for what was really taking place.

My own analysis, "Severus Snape: The Unlikely Hero of Harry Potter book 7" was originally published on the VC in 2005, and was cited by the NY Times a few weeks ago. Russian, Polish, French, and Spanish translations are available.

A few further predictions:

1. Especially given the alchemical necessity of a resolution involving the combination of all four Houses, Luna Lovegood will play a major role in book 7.
2. Harry's ability to speak with snakes (which he shares with Voldemort) was important in early part of book 1, very important in book 2, and has been mostly ignored since then. I predict that it will be important in book 7, most likely with Nagini.
3. In the penultimate scene of movie 5, Luna (searching for her lost shoes), talks with Harry about Sirius's death, and explains that important things which we have lost often come back to us, although in unexpected ways. She immediately finds her shoes, tied to a rafter. In a movie that had to make tough decisions about condensing a 900 page book (with Rowling supervising the screenplay and every detail of the movie--including where objects are placed), I think that the inclusion of this seemingly trivial scene points us very strongly to Sirius meeting Harry again, somehow.

Related Posts (on one page):

  1. More Harry Potter:
  2. Open Harry Potter Speculation Thread:
Two Cheers for Newhounds

My latest media column for the Rocky Mountain News praises the citizen activist website for providing checks and balances to Bill O'Reilly's extremely deceptive coverage of a controversy at Boulder High School. (The coverage is discussed in depth in an Issue Paper I wrote for the Independence Institute.) I wish that Newshounds were less angry in its tone, but I do think that it sometimes plays a useful role in providing facts which are omitted in Fox's coverage of issues.

The column also discusses a new ranking of the most influential political blogs in Colorado (my Independence Institute colleague Ben Degrow won second place for Mount Virtus), and the Denver Post's failure to fully correct a major error: incorrectly claiming that Powell, speaking in Aspen, had predicted a Sunni victory in Iraq; he actually predicted a Shia victory.

More on Terrorism Courts:

The Goldsmith-Katyal proposal for a "National Security Court" that could authorize preventative detention has provoked an extensive debate in the comments to this post at Opinio Juris. At Is That Legal? Eric Muller thinks the proposal "has a lot going for it," but is surprised that Goldsmith and Katyal would propose authorizing the preventative detention of U.S. citizens on the basis of simple group membership.

The idea of a domestic terror court is also advocated by my former colleague Amos Guiora. He discusses the idea here, and it's covered in the L.A. Times here.

[NOTE: I revised this post so as to more accurately portray Eric Muller's thoughts on the GOldsmith-Katyal proposal.]

UPDATE: Amos Guiora expands on his domestic terror court proposal here.


Friday, July 13, 2007

Open Harry Potter Speculation Thread:

In just one week, the long-awaited final book of the Harry Potter series will be out. So this week is your last chance to indulge in speculation about the plot. To facilitate that important purpose, I am creating this open Harry Potter thread, so that VC readers who are also Harry Potter fans can ponder such burning questions as the following:

1. Is Snape good or evil?

2. Is Dumbledore really dead?

3. Which characters will live and which will die?

4. What are the remaining horcruxes?

5. What, if anything, is the most important theme of the series?

A few speculations of my own, that I'm not going to try to support with any analysis:

Snape: good.

Dumbledore: dead.

Characters I think will die: Voldemort, Snape, at least one Weasley (not Ron or Ginny), Hagrid, most of the Death Eaters.

Horcruxes: I don't have any really good guesses on this one.

Moral of the story: No one clear moral, but several different themes. One that is certainly present is a very skeptical view of government. Another is that universal values such as love, freedom, friendship, opposition to evil, etc., cut across racial, ethnic, and cultural divisions. As Dumbledore says in The Goblet of Fire (pg. 723): "differences of habit and language are nothing at all if our aims are identical and our hearts are open."

This is not to suggest that J.K. Rowling is a libertarian or conservative. She isn't; as far as I can tell, her politics are conventionally left-liberal. Nonetheless, the books do take a dim view of both government and moral and cultural relativism. At the same time, it would be a big mistake to assume that these political and philosophical themes exhaust the series, or are even its most important aspect.

And for the killjoys who may claim that this post is inappropriate for a "legal blog," I would point out that 1) we are not just a legal blog, and 2) there are many legal themes in Harry Potter. See here and here, for analyses by legal scholars. The second link is an entire symposium on "Harry Potter and the Law."

Speculate away!

UPDATE: I initially forgot to note my expectation that Snape will die. I have amended the post to add him to the list of the (soon to be) dead.

Related Posts (on one page):

  1. More Harry Potter:
  2. Open Harry Potter Speculation Thread:
Charges Filed 32 Years After Alleged Rape Have Now Been Dropped:

The Providence Journal reports:

The attorney general's office yesterday dropped a case against a 48-year-old Narragansett man who had been charged with raping a woman 32 years ago when both he and the alleged victim were 16 years old.... The case against [the man] was based on memories that the alleged victim had repressed until recently, and a spokesman for [Attorney General] Lynch’s office said state prosecutors did not believe that her testimony would be allowed in court....

The dismissal form cites a 1996 Rhode Island Supreme Court case, State v. Quattrocchi, which requires any case that relies on repressed memory to have a pre-trial hearing on the evidence. "The State dismisses despite its belief that the allegation made by the victim and corroborated by independent evidence established probable cause. However, the high burden for admissibility, at trial, of testimony based on repressed memory as set forth by the court in Quattrocchi provides a legal impediment that the state is unlikely to overcome." ...

Although the attorney general’s office was familiar with the requirements under Quattrocchi before filing charges against Allen, prosecutors did not consider them until after the indictment against him was returned, said [a spokesman for the Attorney General's office].

Thanks to Brian Bishop for the pointer.

Related Posts (on one page):

  1. Charges Filed 32 Years After Alleged Rape Have Now Been Dropped:
  2. "Man Charged 32 Years After Alleged Rape":
British Chocolate:

The New York Times has this piece on the superiority of British chocolate over American standards like the Hershey bar. What the article misses is that chocolate everywhere, not just Britain, is better than U.S. chocolate. Forget Belgium--even places that I wouldn't have expected to be chocolate havens, like Israel and Greece, have basic chocolate bars that are vastly superior to basic American chocolate.

Sunstein on the Direction of the Supreme Court: Over at the The New Republic's Open University blog, Cass Sunstein has an interesting post about the future direction of the Supreme Court.

  I think there's a key distinction underlying Sunstein's post that needs to be brought out here: the difference between the relative political orientation of the Justices and the relative political orientation of the law. They are related, but they are not the same. To see the difference, consider a very highly stylized example. Imagine in Year 0 a majority of the Court is very far to the left, and and as a result key areas of law are pushed quickly to the left. Now imagine that ten years later, a majority of the Court is only moderately to the left, and that now the law is being pushed only slowly to the left.

  So is the new Court "conservative" or not? It depends how you look at it. The net effect of the new Court is still to move the law to the left in key areas, just more slowly than before. At the same time, the political orientation of the Justices will have moved to the right: the new Court will be much more conservative than in the old days of Year 0. The result would be a Supreme Court that people call "conservative" even if the effect of the Court's decision is to move the law to the left. (To be clear, I'm not saying that this is exactly what happened with the Warren Court, and no, I'm not trying to endorse such a political view of the law; this is just an illustration to show the distinction.)

  I wonder if this distinction explains why the public perception is different from what Sunstein suggests: my sense is that Cass is focused on the changing orientation of the Justices, whereas the common critique is more focused on the changing positions of the law.
Does the Constitution Require Congress to Pass Particular Statutes "By Negative Implication"?: Today the Ninth Circuit amended its earlier habeas decision in Irons v. Carey, and I was intrigued by the following dicta that Judge Noonan added to his concurring opinion:
The great writ exists, by negative implication, in Article I of the Constitution of the United States. It was initially understood to extend only to prisoners in the custody of the United States. It was extended by statute in 1867 to embrace prisoners of a state in custody in violation of the Constitution of the United States. It may be that the right to federal review of a claim of unconstitutional incarceration by a state is now to be considered an essential of due process just as the existence of federal courts to hear cases in numbers that it would be impossible for the Supreme Court to handle alone may be viewed as essential to due process. In each case, Congress exercising a power originally designed for application to the national government may lie under a constitutional obligation to exercise it more broadly for the preservation of the Constitution. In each instance, Congress would be called to enact a statute which is necessary.
  Does anyone know what that is supposed to mean? It sounds like Judge Noonan is suggesting that the constitution requires Congress to pass particular kinds of statutes when necessary "for the preservation of the Constitution" -- with the catch, I suppose, that Congress only knows when a statute is necessary "for the preservation of the Constitution" when a judge like John Noonan says so. Of course, it's one thing to say that a federal constitutional right exists, and therefore that courts can entertain a claim absent legislation. That's common enough. But it sounds like Judge Noonan is speaking of an affirmative obligation to enact a statute. Am I interpreting this passage correctly, and if so, am I wrong in thinking that this is a pretty radical idea? Unfortunately, Judge Noonan does not provide any citations in this passage.
Strange First Amendment Decision:

The Second Circuit just handed down Husain v. Springer, which strikes me as quite odd. The case is complex, but the short version is this:

A college student newspaper endorsed a slate of candidates for student government. The university president thought this was unfair and a violation of student government election rules, so she canceled the election, suggesting that she would cancel future elections if the student newspaper made similar endorsements in the future. The Second Circuit held that this cancellation of the election violated the student newspaper's First Amendment rights, because it was "designed to chill the speech contained in future editions."

What makes this a strange First Amendment case, of course, is that the newspaper wasn't ordered to stop speaking. Nor was it threatened with loss of funding or any other tangible loss for not speaking. Rather, it was threatened with frustration of its purpose -- "if you keep endorsing candidates, we'll make sure that your endorsed candidates don't get elected."

I'm unaware of any First Amendment case that remotely reaches this sort of "chill[ing of] speech"; and such behavior by the government seems quite far from the sort of government actions that the law has recognized as triggering the First Amendment. This alone, it seems to me, should have led to the conclusion that the president enjoyed qualified immunity (something the Second Circuit did not conclude).

But let's turn to the merits: Does your right to urge result X really include the right to prevent the government from making result X impossible (even when the government is retaliating against your speech)?

Say, for instance, that a newspaper -- not even a student newspaper -- urges the government to do something. A government official doesn't like what it sees as improper meddling (perhaps the government thinks the newspaper's justification interferes with government decisionmaking, or is based on some improper reason, such as someone's race, religion, sexual orientation, or what have you). The official then says "You want us to hire [or not hire] a gay candidate because he's gay. [Assume, just for the sake of simplicity, that there's no legal prohibition on sexual orientation discrimination.] I disapprove of this argument, and I feel it taints the entire selection process. Instead, we will just start the hiring process over in six months."

Or "You want us to hold a State History Appreciation Day event -- we were planning to, but now that you've started a campaign aimed at characterizing the event as partly a commemoration of our state's Confederate history, we feel that the event would be tainted in people's minds, so we'll cancel it." Or "You threatened to use our Veteran Appreciation Day event as a vehicle for your 'God Hates Fags' / 'Thank God for Dead Soldiers' demonstration, so we'll cancel the event altogether and deprive you of your excuse."

Does that really violate the First Amendment rights of the speakers whom the government disapproves of? It seems to me the answer is no, but the Second Circuit's decision would suggest that the answer would be yes.

Nor is there something special here about canceling the student election. As far as the opinion is concerned, there was nothing otherwise illegal about the president's decision to cancel the election -- the decision was within the president's power.

If the cancellation decision was illegal, then it would have had to be challenged under whatever state law made the decision illegal, not as a violation of the newspaper's First Amendment rights. For instance, if a governor canceled a statewide election because he disapproved of some newspaper endorsements, I'm sure this would be illegal, because governors generally aren't allowed to cancel elections at their own discretion. But the illegality would be a violation of state law, not of the newspaper's First Amendment rights.

The Second Circuit decision basically reasons that the government may not "engag[e] in conduct designed to chill the speech contained in future editions" of the speaker's speech, even when the "conduct" is simply the government's decision not to allow its government processes to be used to accomplish the results the speaker urges. Doesn't seem quite right to me, but I'd love to hear what others think.

Federal Appellate Judge Dissents Without Reading Majority Opinion,

because "this is not a case that should occupy the mind of a person who has anything consequential to do."

I kid you not; the opinion, dissenting from a 44-page majority opinion that finds a university president's actions violated the First Amendment rights of a student newspaper, is here.

It's too bad that the dissenting judge didn't take the case more seriously: I think the majority opinion may well be wrong, and certainly sets an important precedent that would benefit from serious, skeptical scrutiny. Even if the dissenter thinks the case should be unimportant ("this silly thing," he calls it), and that the plaintiffs are suffering from a "fantasy of oppression" and engaging in a "slow-motion tantrum," the case now is indeed important. It seems to me that the matter deserved his time and attention.

Thanks to How Appealing for the pointer.

Related Posts (on one page):

  1. Strange First Amendment Decision:
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Columbia University Abandons Threat to Use Eminent Domain to Seize Residential Property in Harlem:

Last year, I wrote a series of posts criticizing Columbia University's plans to potentially use eminent domain to seize land it coveted in the Manhanttanville neighborhood in Harlem (see here and here).

I am happy to be able to report that, according to the New York Times, Columbia has decided to renounce the use of eminent domain to further its expansion plans (hat tip: VC reader Michael Pitkowsky):

Columbia University announced yesterday that it would not ask the state to use eminent domain to evict residents of 132 apartments in the 17-acre area of Harlem that it wants to move into.

The announcement, covering all the remaining residents in the area, suggests that the university, which is seeking the city’s support for a major northward expansion of its Morningside Heights campus, is trying to be conciliatory.

Unfortunately, as the article notes, Columbia still reserves the option of using eminent domain to acquire the "few" commercial properties that remain in the area. As I explained in great detail in my first post on this issue, there is no good justification for allowing politically powerful institutions such as Columbia to use eminent domain to acquire the property of relatively weaker groups, such as the mostly poor African-American residents of Manhattanville.

After getting extensive negative publicity, Columbia has made the right decision with respect to residential properties. Hopefully, it will eventually reach the same conclusion about the commercial properties as well.

UPDATE: As commenters point out, there is some evidence that Columbia may have actually changed its mind on this issue several months before their recent public announcement (see the account in this article). Whatever the case may be, it is good that they have backed off their earlier threats to use eminent domain against homeowners, but unfortunate that they persist in doing so against owners of commercial properties.


Responding to a commenter who used the phrase "this data," another commenter writes:

Not to be pedantic or anything, but I'm sure you meant these data. Perhaps it's old-fashioned, but I feel anyone with a PhD should be able to use "data" correctly. Anyone else, and I don't particularly care.

What puzzles me is what exactly the word "correctly" means here. My Merriam-Webster Webster's Dictionary of English Usage, for instance, reports that both the plural noun version of data (for which the dictionary offers the analogy earnings, and which takes plural verbs) and the abstract mass noun version (for which the dictionary offers the analogy information, and which takes singular verbs) "are standard" in English. In Latin, "data" might be exclusively plural. But we're speaking English, and in English both the singular and the plural are, according to this dictionary, fine.

My New Shorter Oxford likewise describes "data" as "pl. & collect. sing." The big online Oxford lists both. The American Heritage lists it as "pl. n. (used with a sing. or pl. verb)"; it does provide a usage note, but reports that "Sixty percent of the Usage Pannel accepts the use of data with a singular verb" as in "the data is in."

Garner's Dictionary of Modern American Usage is the most pro-plural modern source of the ones I've checked, but even it reports only that "in more or less formal contexts [data] is preferably treated as a plural." The original 1926 Fowler does insist that "data is plural only"; the 1996 New Fowler's Modern English Usage begins by giving as an example that "The data are (not is) insufficient," but reports that "In modern times usage varies," and notes that "In computing and allied disciplines [data] is treated as a singular noun."

Now let's set aside whether one views the singular data as elegant or grating; let's also set aside whether one would counsel one's students to take the course that will annoy, rightly or wrongly, the fewest readers. (Note that here both the singular and the plural versions may annoy some.) The claim was that the singular is not "correct[]." And I don't quite see for what sensible meaning of "correct" that claim is correct.

What Fraction of the Population is Gay or Lesbian?

This question comes up every so often, so I thought I'd pass along what seems to be the best data out there -- from Laumann et al., The Social Organization of Sexuality 311 (1994). All numbers are percentages.

1. Sexual partners:

Last year (men / women)Past 5 years (men / women)Since age 18 (men / women)Since puberty (men / women)
No partners10.5 / 13.35.9 / 7.13.8 / 3.43.3 / 2.2
Opposite gender only86.8 / 85.490.0 / 90.791.3 / 92.590.3 / 94.3
Both men and women0.7 / 0.32.1 / 1.44.0 / 3.75.8 / 3.3
Same gender ony2.0 / 1.0 2.0 / 0.80.9 / 0.40.6 / 0.2

2. Sexual identity ("Do you think of yourself as heterosexual, homosexual, bisexual, or something else?"):


3. Sexual attraction ("In general are you sexually attracted to only men, mostly men, both men and women, mostly women, only women?"):

Sexual attractionMenWomen
Only opposite gender93.895.6
Mostly opposite gender2.62.7
Both genders0.60.8
Mostly same gender0.70.6
Only same gender2.40.3

Naturally one has to be cautious about even well-conducted random studies of small sexual minorities, especially when some respondents might lie. Also, note that even though the study tried to be precise in the questions it asked, other studies might not, or might focus on different questions -- whether someone is "gay" or "lesbian" is not unambiguously defined, and the definitions may vary from survey to survey and respondent to respondent. Still, this seems to be the best approximation I've seen.

Podcast on Brendlin v. California: I recently recorded a podcast on the Supreme Court's recent decision in Brendlin v. California, the Fourth Amendment traffic stop case, for the Federalist Society's "SCOTUScast" series. If you're interested in listening to my ruminations about the case, you can listen here. (Approx length: 15 minutes.)
The Unwritten Law, Written:

I'd often heard of "the unwritten law," under which a husband who caught his wife and another man having sex would be acquitted for killing the other man -- not just found guilty of mere manslaughter rather than murder (which tends to be still the law today, under the right circumstances), but entirely acquitted. I had assumed that it was a matter of custom and jury and prosecutor discretion ("no jury in the land would convict me").

But, as I just learned (entirely from reading cases, mind you), this was actually the written law -- either statutory or common law -- in several U.S. states until the 1970s. Here's a summary from Jeremy D. Weinstein, Adultery, Law, and the State: A History (1986), though I've read some of the cited cases myself:

Some American states, either by statute or judicial decision, made it legal for a husband to kill an interloper caught in the act of adultery with his wife. [Footnote: The civil law provides an interesting comparison. Its primary difference from the common law is that since ancient times the cuckold was allowed to kill the wife as well as the marital interloper.] ...

Until 1974, when it was repealed, [a] Texas statute provided:

Homicide is justifiable when committed by the husband upon one taken in the act of adultery with the wife, provided the killing take place before the parties to the act have separated. Such circumstance cannot justify a homicide where it appears that there has been, on the part of the husband, any connivance in or assent to the adulterous connection.

... Although an early case established that the statute permitted the husband to kill his wife as well as her paramour, Texas courts criticized this interpretation and reversed it the following decade [in 1925]. Furthermore, Texas judges refused to extend the statute to permit a wife to kill her husband's paramour. Under the Texas statute, the injury to the paramour was only justifiable when inflicted with the intent to kill [as opposed to, in one case, castrate]....

Until 1977, Georgia [common law] also permitted a husband or father to kill the paramour of his spouse or child under limited circumstances.... The Georgia courts interpreted the justifiable homicide law as a class of self-defense, while the Texas statute was in effect a law allowing revenge. The most significant distinction between the Georgia and Texas rules was that the killing under the Georgia rule was defensive in nature and had to be necessary to prevent and defend against the adultery. A killing after the adultery was vengeance, and therefore was murder or manslaughter depending on whether it was committed in the sudden heat of passion. The defensive nature of the justification allowed killing to stop an adulterous relationship of which the husband or father was aware if it seemed to the husband or father to be the only way to do so. In contrast, under the Texas statute a husband was only permitted to act if he was surprised with a present adultery.... [The law] extended to the protection of daughters and fiancees, although evidence of the woman's chastity was admissible on the question of whether it was necessary to kill to protect it, which was a question for the jury.

In contrast to the situation in Texas, in Georgia the wife could kill her husband's paramour, but just as in Texas, the spouse was not permitted to kill the other spouse. Another difference between the Georgia and Texas justifiable homicide rules was that, in Georgia, the paramour [generally was not allowed to use lethal force to defend himself against the spouse's lethal attack]....

[Until 1973], two other American jurisdictions, New Mexico and Utah, had statutes justifying the killing by a husband of his wife's paramour if he found them together in adultery. [Unlike the rationale given by Georgia courts, the New Mexico courts framed the matter as one of excuse rather than justification]: "[t]he purpose of the law is not vindictive. It is humane. It recognizes the ungovernable passion which possesses a man when immediately confronted with his wife's dishonor. It merely says the man who takes life under those circumstances is not to be punished; not because he has performed a meritorious deed; but because he has acted naturally and humanly."

Incidentally, a 1975 Georgia appellate case that began the abrogation of the Georgia rule drew a three-judge opinion that began (in relevant part), "I violently dissent." "What were the rights of the common law wife [who caught her common law husband in adultery with another woman] -- to walk away, taking no action whatever to prevent the act of adultery, or its completion? That is directly at variance with the law of Georgia!" (Note that the dissent wasn't just arguing that the defendant should have had the benefit of the old rule, however wrong, but seemed to be defending the rule itself, and arguing that the rule justified killing of the spouse as well as of the spouse's paramour.)

A pretty appalling state of affairs, and shocking that it persisted until 30 years ago.

Updating the Foreign Intelligence Surveillance Act: I have just uploaded a draft of a new essay, Updating the Foreign Intelligence Surveillance Act, forthcoming in a symposium issue of the University of Chicago Law Review. It's a short article, about 22 pages. Here's the abstract:
This essay argues that the Foreign Intelligence Surveillance Act should be restructured to account for changes in communications technology and Fourth Amendment law since FISA's enactment in 1978. FISA reflects the person-focused assumptions of 1970s-era technology and constitutional law. At that time, foreign intelligence monitoring necessarily focused on subject identity and location. Although some modern investigations track this traditional approach, many do not; investigations involving packet-switched networks often start with data divorced from any known person or location. FISA should be amended to create two distinct authorities for surveillance: data-focused authorities when the identity and/or location of the subject are unknown, and person-focused authorities when the identity and/or location are known. A two-pronged approach can best implement the goals of foreign intelligence investigations given the realities of modern communications networks.
Is Green the New Yellow?

Slate's Jack Shafer thinks "Yellow journalism now comes in a new color: green."

Often as sensationalistic as its yellow predecessor, green journalism tends to appeal to our emotions, exploit our fears, and pander to our vanity. It places a political agenda in front of the quest for journalistic truth and in its most demagogic forms tolerates no criticism, branding all who question it as enemies of the people.

Two Divided Habeas Opinions on the Sixth in One Day:

In 1987, Abdul Haliym (then known as Wayne Frazier) was sentenced to death by an Ohio court for his role in the murders of Marcellus Williams and Joann Richards in Cleveland Heights, Ohio. After exhausting his state law remedies, Haliym filed a federal habeas petition asserting some 20 grounds for relief, all of which were denied in federal district court. Today in Haliym v. Mitchell, a panel of the U.S. Court of Appeals for the Sixth Circuit unanimously rejected Haliym's appeal with regard to his conviction, but ruled favorably, by a 2-1 vote, on Haliym's claim that he was denied the effective assistance of counsel during the mitigation phase of his sentencing.

Judge Clay, joined by Judge Merritt, concluded that Haliym was denied effective assistance of counsel because his attorney "failed to discover important mitigating information that was reasonably available and suggested by information already within their possession," and that Haliym demostrated prejudice from this failure.

had counsel conducted a thorough investigation, they could have presented a dramatically different picture of Petitioner’s life than the picture presented at sentencing. As the trial court and the Ohio Supreme Court were presented with almost no mitigating evidence supporting a sentence other than death, it is not entirely surprising that each court concluded that the balance of factors favored the death penalty. Had Petitioner put the available mitigation evidence on the other side of the balance, though the Ohio courts might still have determined that death was the appropriate sentence, such evidence also “might well have influenced the [factfinder’s] appraisal of [Petitioner’s] moral culpability.”
Judge Siler dissented.

In a second case, In re Abdur'Rahman, a divided panel of the same court (again) ruled against Abu-Ali Abdur'Rahman's efforts to chellenge his conviction. As Judge Siler, joined by Judge Batchelder, summarized in his opinion for the court:

In 2004, our en banc court concluded that Abu-Ali Abdur’Rahman’s post-judgment motion should be treated as a Fed. R. Civ. P. 60(b) motion rather than a second or successive habeas petition. In re Abdur’Rahman, 392 F.3d 174, 182 (6th Cir. 2004), vacated, Bell v. Abdur’Rahman, 545 U.S. 1151 (2005). In 2005, the Supreme Court granted certiorari in this case, vacated our previous judgment, and remanded for our consideration in light of Gonzalez v. Crosby, 545 U.S. 524 (2005). Bell, 545 U.S. 1151. Based on Gonzalez, Abdur’Rahman’s motion should be treated as a motion pursuant to Rule 60(b), not a second or successive habeas petition. However, we dismiss his motion as untimely.
Judge Cole dissented, arguing that once the panel concluded (correctly, in his view) that Abdur'Rahman's motion should be treated as a Rule 60(b) motion, it should have remanded the case back to the trial court. He further argued that even if the case were not remanded, it should not be considered untimely. Of note, one of the issues that divided the majority and dissent in this case is how to treat aspects of the Sixth Circuit's prior en banc decision in the case that had been vacated by the Supreme Court after Gonzales.

Action Park:

This Wikidedia entry brings back some fond memories of the late, great Action Park of New Jersey. Where else could a fourteen year old ride a go cart at highway speeds? I didn't know that local doctors referred to it as "Traction Park," but I'm not surprised. When I went with some friends in 1981, one misjudged the Tarazan rope ride and landed on the ground instead of the water, causing a moderate leg injury, several others got nasty scrapes from the Alpine slide, and I felt at great risk of drowning in the wave pool--every time I tried to climb out, a wave would hit me and knock me off the ladder. How this park managed to stay in business for twenty years, I don't know, it was probably the single most obviously dangerous place I've ever been.

The Status of Appellate Court Nominations:

Ed Whelan has a useful summary of the status of judicial nominations to federal appellate courts at NRO's Bench Memos. The Administrative Office of the U.S. Courts also has this tabular summary of vacancies.

New Study on Mortgage Disclosures:

Given the turmoil in the subprime mortgage market it is inevitable that legislatures and regulators are going to be considering new regulations.

One area in which that market certainly could work better would be with respect to the comprehensibility of disclosures to consumers. In that vein I commend to readers and regulators an excellent new study just out from the Bureau of Economics at the Federal Trade Commission on "Improving Mortgage Disclosures." The report is available here.

The report has a number of interesting findings. Most interesting to me are:

-Prime and subprime borrowers seem to be equally able (or more precisely unable) to comprehend their mortgage disclosures. In a test about the content of their loans, prime borrowers could only answer 62.0% of the questions correctly and subprime borrowers could answer 59.6% correctly. So subprime borrowers in general do not appear to be any dumber or unable to comprehend their loan terms than prime borrowers.

-More complex loans lead to more errors in understanding loan terms. The disclosures in the study were based on those currently mandated by various federal laws and regulations.

-Better disclosures are possible: As part of the study, the FTC staff worked up some prototype improved disclosures based on economic theory and experience at the FTC enforcement actions against deceptive lending practices. Using the prototype disclosures, comprehension of lending terms rose from an average of 61% correct to 80% correct.

-The increase in comprehension with the prototype disclosures was greatest for more complex loans.

The overall takeaway of the FTC study is both dispiriting and encouraging. Dispiriting in that current disclosure regulations lead to consumer confusion and mistakes about the terms of the mortgages that they are entering into. Encouraging in that improved disclosures are in fact possible that could substantially increase consumer comprehension and reduce mistakes, especially in that it seems that there are no systematic differences in the abilities of prime and subprime borrowers to understand the terms of their loans.

Yesterday I did a lecture for Capitol Hill staff on subprime lending through the Mercatus Center's Capitol Hill Campus program. I summarize the FTC study toward the end of my Powerpoint presentation that I gave yesterday at slides 35-37.

More Ways to Identify Judicial Clerkships from Hell:

University of San Diego lawprof Michael Rappaport follows up his earlier post on his judicial clerkship from hell with an addendum to my suggestions on ways clerkship applicants can identify judges who abuse their clerks:

Ilya raises the question of how information about judicial tyrants can be publicized. One possibility is simply to list whenever a law clerk quits his or her job. While one or two quits might be innocent, a pattern would be revealing, especially when supplemented with gossip. One Volokh commentator mentions that many clerks resigned from their clerkship with Judge Irving Kaufman of the Second Circuit. At law school, I knew that about Kaufman – everyone did – but I had no knowledge about [Judge] Sloviter [the oppressive judge Rappaport clerked for]. (Interestingly, my two co-clerks did know that she had a reputation for being a very tough boss, but they took the clerkship anyway, because their wonderful interview with her (mistakenly) convinced them that the reputation was undeserved.) As I remember it, when I started the clerkship in 1985, three Sloviter clerks had quit in the six years she had been a judge. My co-clerk made it 4 in 7 years.

Michael's suggestion is a good one. On rare occasions clerks resign for reasons of their own that are no fault of the judge's; sometimes, a judge will have no choice but to force a clerk to resign because the latter is simply too lazy or incompetent to do the job. Even so, a pattern of repeated resignations does indeed suggest that there's something wrong with the judge in question.

Michael's idea is only a partial solution to the information problem. Even if their judge is an oppressive tyrant, clerks will hesitate to resign early because of the very high costs of doing so. Because prospective future legal employers will almost always contact the judge an ex-clerk served under, alienating the judge by leaving the clerkship early is likely to be a major career setback. Still, Michael's proposal would certainly provide valuable information about those (probably very few) judges who are so bad that large numbers of their clerks are willing to pay the high cost of resigning in order to be rid of them.

David Lat at Above the Law has his own proposal for increasing the availability of information about hellish clerkships:

Never fear, Above the Law is here! We're happy to serve as a clearinghouse for your clerkship horror stories.

Email us with your tales of clerkship woe. We will confirm that you actually clerked for the judge in question (or were otherwise properly situated to acquire such dirt). We will then post your horror story, but without identifying you as our tipster, per our standard procedure. (Of course, if you for some bizarre reason WANT to be credited, we can do that too.)

Judges are public figures, and they're used to being criticized. But sometimes even judges sue for libel. So — and this should go without saying — only send us stories that are TRUE.

I should mention that David is himself a useful font of information about judges and their clerkship policies, since he has a virtually encyclopedic knowledge of the various denizens of the federal judiciary. If you want the real dope on what it's like to work for a particular judge, he's often one of the best people to ask.

Finally, I want to emphasize that I am NOT suggesting that applicants should automatically forego clerkships with judges who treat their staff badly. Sometimes, the educational and career benefits of clerking for a nasty judge will outweigh the pain and suffering involved. Some mean judges are also outstanding and highly respected jurists whom clerks can learn a lot from. Others are major figures in the legal profession who can do a lot for a clerk's career prospects. Applicants will have to decide for themselves whether the benefits of clerking for a particular judge are worth the costs. I simply hope that such decisions will be taken with the benefit of as much accurate information as reasonably possible.

Related Posts (on one page):

  1. More Ways to Identify Judicial Clerkships from Hell:
  2. Judicial Clerkships From Hell:

Thursday, July 12, 2007

D..C. Circuit to Take Terry Stop Decision En Banc: I blogged about the panel decision here; Howard has the news about the court's decision to go en banc here. It seems like a strange case to take en banc given how fact-specific it is, but I guess it adds some variety to the docket.
Is Splitting the Ninth the Answer? (What Was the Question?):

Is there anything wrong with the Ninth Circuit? Anything that splitting the Court would solve? For more on these questions see this post at SCOTUSBlog by Ben Winograd and this post by Ethan Leib on Prawfsblawg.

Are "Ladies' Nights" Discriminatory?

A New York attorney has filed a class action lawsuit against several Manhattan nightclubs, alleging that by hosting "ladies nights" they are engaged in unlawful gender discrimination. He is seeking a declaratory judgment that the nightclub policies in question constituted "state action" due to their regulation by the state Alcoholic Beverage Division. Such a finding would be necessary for the nightclubs to be liable under Section 1983.

He is looking to the case of Seidenberg and DeCrow v. McSorleys' Old Ale House, Inc., 317 F.Supp 593, as precedent for finding the existence of "state action" by bars and nightclubs. The U.S. District Court for the Southern District of New York, where Hollander has filed his complaint, ruled in 1970 that state action existed when McSorleys' Old Ale House refused to serve two women.

Hollander also foresees an "uphill battle" in classifying the action as invidious discrimination, since he is arguing on behalf of men and not women, whom he says the U.S. Supreme Court has given "preferential treatment for past invidious, economic discrimination."

"Whether this case succeeds or fails," says Hollander, "it will result in a much needed victory for men." . . .

Hollander is seeking to be named class representative for all men charged more money or burdened by stricter time restraints than women at these clubs over the last three years. He has as evidence e-mail advertisements for promotions held on the nights he attended these clubs and according to Hollander, these e-mails advertise discriminatory admittance policies for men versus women. The case seeks an injunction to end these policies.

The general manager for one of the nightclubs being sued labeled the suit "ridiculous."

God Forbid That People Should Look at Demographic Data

(except, of course, when God forbid that people should ignore demographic data): The Feminist Law Professors blog writes:

[TITLE:] Oh for the love of...

Exactly what possessed Eugene Volokh to look into the sexual orientation of female law profs whose scholarship gets cited a lot? See his "update" at end of this post and try to avoid banging your head on the computer monitor.

Hmm — what would possess an academic to look into disproportionate representation by sexual orientation when one is looking at data showing disproportionate representation by sex and ethnicity? Could it be academic curiosity? A desire to find — and then to call attention to — interesting data points that might help shed light on the degree to which personal attributes correlate with professional success, and potentially influence professional success?

Look, let's say the data I give did generalize beyond its very small sample. I stressed that it was quite limited, since it revealed only that 2 of the 6 women law professors on the list of the 50 most cited professors who entered law teaching since 1992 were lesbian or bisexual; at this point, it is at most very tentatively suggestive. But let's say it did lead some readers to look more closely, and find that indeed lesbians and bisexual women are substantially overrepresented among successful women in certain fields.

Wouldn't that be a matter of some scholarly interest? It doesn't matter what one thinks the cause for this disproportion might be: different patterns of discrimination by outsiders, different internal cultural norms within the group, different social and familial structures, biological differences, or whatever else. It doesn't even matter if one is unsure of the cause at the outset, but is just trying to find data that may eventually help identify the cause. Wouldn't the data be pretty interesting to people who are seriously interested in sociology, biology, demography, the legal profession, and a wide range of other fields?

To me, the glory of the academic life is that you're supposed to look for interesting data, bring it up to colleagues, investigate it, speculate about it, and the like. All people should be entitled to do this, but for us this sort of inquisitiveness is part of our jobs. It's too bad that identifying such data leads some to want to bang their heads against their monitors.

More broadly, if you're curious about human behavior — as a scholar or just as a fellow human — isn't there something striking and intriguing about the marked correlations between sexual orientation and participation in various professions? Male homosexuals are notoriously overrepresented in some fields, and while some such claims might at times be spurious, my sense is that on balance conventional wisdom reflects reality. Lesbians are also often said to be overrepresented in other fields (chiefly athletic, in my experience, though not only that); again, some of this may be myth, but I see no reason to assume that it's all myth.

Why is this? Is it culture? The effects of discrimination? Biology? Some mix of these factors? Does it relate only to different rates of interest in the fields, or also to different rates of success? Fascinating questions, it seems to me, and ones that get more fascinating as one acquires more data. So that's what possessed me, and I don't see what's wrong with such possession.

Anna Nicole Smith Law:

The Washington Legal Foundation> just put up a Web Seminar this morning on "The Ongoing Saga of Marshall v. Marshall: Beyond the Anna Nicole Headlines, Critical Legal Issues Lurk in Federal Court"; it should now be available at the WLF Web site. Some interesting procedural issues there, plus stuff on bankruptcy and probate — the things one instantly thinks about, of course, when one hears "Anna Nicole Smith."

Law Enforcement Possession and Distribution of Contraband: In response to Eugene's post below, about law enforcement possession and distribution of contraband, this post from my now-abandoned solo blog might be helpful. (Unfortunately the comments there are down, but you can get the gist of them — and particularly Marty Lederman's answer — from the update.)

  Here's the key language from Nardone v. United States: according to Nardone, there is an "implied exclusion" for "public officers," "where a reading which would include such officers would work obvious absurdity as, for example, the application of a speed law to a policeman pursuing a criminal or the driver of a fire engine responding to an alarm." It's not really clear to me how this would apply to the McDade case, and I don't know if there are any later cases on how this applies (I haven't found any, but I didn't look very hard.)

  UDPATE: Corey Rayburn Yung has additional thoughts at the Sex Crimes blog.

Related Posts (on one page):

  1. Law Enforcement Possession and Distribution of Contraband:
  2. Releasing Copies of Evidence = Violation of Federal Child Porn Laws?
Releasing Copies of Evidence = Violation of Federal Child Porn Laws?

The Atlanta Journal-Constitution reports (thanks to How Appealing for the pointer):

Douglas County District Attorney David McDade violated federal law when he distributed a videotape from a rape and child molestation case to legislators and journalists, the U.S. attorney's office said Wednesday.

U.S. Attorney David Nahmias said federal law prohibited distributing the videotape because it depicted minors engaged in sexually explicit conduct and warned that people who had received it would be in violation of federal child pornography laws.

The videotape was of the raunchy party in a Douglasville hotel room that led to the conviction of Genarlow Wilson on aggravated child molestation charges. Wilson was 17 at the time and the tape showed him receiving consensual oral sex from a 15-year-old girl. The video has been given to both reporters and legislators....

McDade told The Associated Press he was required to release the tape under the state's Open Records Act because it was introduced as evidence at the trial.

The distribution of such material would indeed normally be child pornography; and the federal child pornography ban would preempt any state law to the contrary. The questions, I take it, would be:

(1) Is there some implicit exception to the federal law as to videos such as this one, and what is its scope? I take it that there must be some such exception, or else the video couldn't even be handed from the police to the prosecutor in federal enclaves, such as D.C., but the question is whether the exception extends to distribution to the media and to legislators.

(2) Should the First Amendment be read as mandating an exception for videos and photographs that are evidence in a criminal trial, and seeing which may be helpful to understanding whether justice was done in the criminal process (which is to say whether the sentence was substantively sound, not just whether the procedures were followed) -- and, again, what should the scope of the exception be?

(3) Is there some state sovereign power limit on federal law, where the distribution or possession of the material is part of the state government's law enforcement process (this would apply to, for instance, e-mailing or mailing material within the prosecutor's or police department's office) or as part of the state government's compliance with its own public records laws?

I don't know what the answers to these questions are, but the issue struck me as worth flagging.

By the way, "Nahmias said his office issued the statement to end further distribution of the videotape and advised those who possessed it to destroy or return it." That is certainly very good advice for anyone who has the tape in his hands, and who is rationally risk-averse.

Related Posts (on one page):

  1. Law Enforcement Possession and Distribution of Contraband:
  2. Releasing Copies of Evidence = Violation of Federal Child Porn Laws?
Huckabee vs. Moore:

"Frankly, Michael Moore is an example of why the health care system costs so much in this country. He clearly is one of the reasons that we have a very expensive system. I know that from my own personal experience," said Huckabee, who lost more than 110 pounds and became an avid runner after he was diagnosed with diabetes.

"I know how much more my health care cost when I didn't take care of myself than when I do take care of myself, not only in terms of doctor visits but regular diseases, illnesses, chronic things that come up, monthly prescription bills," Huckabee said. "All of those things have gone dramatically down since I've taken care of myself and worked to live a healthier lifestyle."

No comment could be obtained from Moore, but Meghan O'Hara, producer of "Sicko," questioned Huckabee's motives in criticizing Moore.

"Looks like Mike Huckabee is auditioning for some insurance company dough, since he's raised just about no money and sparked zero interest since jumping into the race," O'Hara said in a response provided by Moore's production office. "I wonder what the good governor would say to the French, who drink more, smoke more, eat more cheese and still live longer than us despite paying less for health care?"

Advantage: Huckabee. Feel free to correct this non-expert in the comments, but from what I read the real experts find very little correlation between the various health care systems used in the Western world and longevity, and attribute the (relatively small) differences in longevity to lifestyle factors, with obesity being the primary disproportionate "health sin" in the U.S.

Anecdotally, I know Israelis have great longevity, despite, from what I can tell, is a relatively poor (and very unequal, because the wealthy use private insurance) health care system, and despite a high percentage of ultra-Orthodox and Arabs with very large families living in general poverty and ignorance.

If Moore's "people" have any evidence that the French's longevity is due to their health care system and is despite an overall worse lifestyle profile than Americans', I'd love to see it. (Indeed, drinking more is likely correlated with better health if more people drink, but there are fewer alcoholics. And cheese, per se, isn't harmful, and has some dairy-related health benefits.)

Moreover, O'Hara's retort is not directly on point, since Huckabee raised the issue of health care costs, not longevity. Smokers, some have argued, actually save the system money by dying young of a signature disease. The morbidly obese tend to have lots of chronic health problems, like diabetes.

The American health care system can use all sorts of improvements, but I doubt anything on the table, much less Moore's favored single-payer system, will improve Americans' health more than it would be improved if we cut the rate of gross obesity by 2/3. My esteem for Mr. Moore would rise significantly (from an admittedly low base), if his next film encouraged Americans to take more responsibility for their health, and he led by example. And I say all this as someone who could stand to lose a few.

Goldstein on the Democratic Short List: Over at SCOTUSblog, Tommy Goldstein speculates about who might be nominated for the next Supreme Court spot if a Democrat wins the White House in 2008. It's all speculation, of course, but it's interesting speculation.

  UPDATE: I noticed that Judge Diane P. Wood of the 7th Circuit is in Tommy's full chart of possibilities, but not on his list of likely picks. Although Judge Wood is slightly older than some of the others (born in 1950, so she would be 59 in 2009), I wouldn't be surprised if she ends up at the top of Democratic short lists. From what I know she is an excellent judge, and her sterling credentials and experience on the Seventh Circuit would probably help a great deal in the confirmation process.

  ANOTHER UPDATE: Commenter "Actuarial Advantage" raises an excellent point: Given that women live on average 5 years longer than men, a President probably has more flexibility on the age of a female SCOTUS nominee than a male SCOTUS nominee.
Unconstitutional Restriction on Use of Fallen Soldiers' Names?

Reason's Hit & Run reports on a new Arizona statute (Ariz. Rev. Stat. § 13-3726) that would limit the use of names and pictures of dead soldiers. The law, which was apparently prompted by outrage over the sale of antiwar T-shirts that contain the names of soldiers killed in Iraq, reads:

A. A person shall not knowingly use the name, portrait or picture of a deceased soldier [defined as referring to any member of the U.S. armed forces] for the purpose of advertising for the sale of any goods, wares or merchandise or for the solicitation of patronage for any business without having obtained prior consent to the use by the soldier or by the soldier's spouse, immediate family member, trustee if the soldier is a minor or legally designated representative....

C. This section does not apply to the following:

1. The use of a soldier's name, portrait or picture in an attempt to portray, describe or impersonate that soldier in a live performance, a single and original work of fine art, a play, book, article, musical work or film or on radio, television or other audio or audiovisual work if the performance, musical work, play, book, article or film does not itself constitute a commercial advertisement for any goods, wares or merchandise.

2. The use of a soldier's name, portrait or picture for noncommercial purposes, including any news, public affairs or sports broadcast or account.

3. The use of a soldier's name in truthfully identifying the soldier as the author of a particular work or program or as the performer in a particular performance.

4. Any promotional materials, advertisements or commercial announcements for a use described in paragraph 1, 2 or 3.

5. The use of photographs, video recordings and images by a person, firm or corporation practicing the profession of photography to exhibit, in or about the professional photographer's place of business or portfolio, specimens of the professional photographer's work, unless the exhibition is continued by the professional photographer after written notice objecting to the exhibition by the portrayed soldier or a person who may enforce the soldier's rights and remedies.

6. A soldier's picture or portrait that is not facially identifiable.

7. A photograph of a monument or a memorial that is placed on any goods, wares or merchandise....

The prohibited conduct is made a misdemeanor, and made civilly actionable.

The law, it seems to me, is unconstitutional, for two reasons:

1. a. The T-shirts don't fit within the "commercial speech" doctrine, under which commercial advertising gets reduced First Amendment protection — the T-shirts aren't advertising (except insofar as the cover of any work, such as a book or a magazine, advertises itself), but rather speech sold for money. And the fact that speech is sold for money doesn't strip it of protection (whether it's a book, a movie, or a T-shirt).

b. The T-shirts also don't fit within any "right of publicity" exception that is likely to be recognized by the courts. The Supreme Court has held that state law may make actionable the taking of another's entire act (for instance, when a TV station rebroadcasts a "human cannonball" act); but that narrow exception doesn't apply here.

Some lower courts, most notably the California Supreme Court, have held that "nontransformative" use of another's name or likeness, such as a T-shirt or a coffee mug that merely contains a celebrity's picture, may also be restrictable. But the speech here is clearly transformative, in that it "add[s] something new, with a further purpose or different character, altering the first with new expression, meaning or message," "add[s] significant expression beyond" the "literal depiction or imitation of a [person] for commercial gain," and uses the person's name as "one of the 'raw materials' from which an original work is synthesized," as opposed to having "the depiction or imitation of the celebrity [be] the very sum and substance of the work in question." I have argued that the "transformative" test isn't clear or speech-protective enough; but even under this test, the T-shirts would be protected, and the statute would be unconstitutionally overbroad.

Even under the awful Missouri Supreme Court "Tony Twist" decision (which I have criticized here), it seems likely that the T-shirts would be protected. A court would have to engage in the mushy inquiry of whether the T-shirt "predominantly exploits the commercial value of an individual's identity" as opposed to having as its "predominant purpose" be "[the making of] an expressive comment on or about a [person]," but my guess is that for an overtly political T-shirt like this, in which the people's names are part of the political message, the inquiry would come out in the speaker's favor — and the Tony Twist case is an outlier among lower courts, which are generally more protective of speakers' rights in this context.

2. Moreover, even if a categorical restriction on the use of others' names and likenesses on T-shirts would be constitutional, a selective ban on the use of deceased soldiers' names seems to violate R.A.V. v. City of St. Paul, which held that even if a broad category of speech (there, fighting words) can be restricted, the First Amendment bars the selective restriction of content-based subcategories of the speech (there, fighting words that "arouses anger, alarm or resentment ... on the basis of race, color, creed, religion or gender").

The R.A.V. test is complicated and in many ways vague, but it does seem pretty clearly applicable here:

  1. It's not the case that "the basis for the content discrimination [deceased soldiers' names vs. others' names] consists entirely of the very reason the entire class of speech at issue [speech that uses others' names without permission] is proscribable."
  2. It's not the case that "the subclass happens to be associated with particular 'secondary effects' of the speech, so that the regulation is 'justified without reference to the content of the ... speech.'" (Recall that the offensiveness or persuasiveness of the speech, and the effects that flow from them, are not counted as secondary effects. "The emotive impact of speech on its audience is not a 'secondary effect.'")
  3. This is not a generally applicable law that applies both to speech and conduct and that covers a particular subcategory "incidentally."
  4. It is not the case that "the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot."

So, the bottom line: The Arizona statute is unconstitutional. So is a similar law in Louisiana, which is possibly narrower, but still unconstitutional for reason #2 and a version of reason #1. And so is a similar law in Oklahoma (21 Okla. Stat. Ann. § 839.1A), though reason #2 wouldn't apply because a nearly identical Oklahoma law equally covers the use of people's names and likenesses more broadly, without limitation to fallen soldiers.

Thanks to Nick Sarwark for the pointer.

Related Posts (on one page):

  1. Unconstitutional Restriction on Use of Fallen Soldiers' Names:
  2. Unconstitutional Restriction on Use of Fallen Soldiers' Names?
The Tiahrt Amendment:

A reader asked for analysis of the Tiahrt Amendment, which will be voted on today in the House Appropriations Committee. The amendment, which has been a BATFE appropriations rider since 2004, protects the privacy of law-abiding gun owners by restricting disclosure to third parties of various federal records of lawful gun purchases, by enforcing a prior federal law requiring the prompt destruction of National Instant Check System records on lawful purchases, and by forbidding the creation of a computerized federal gun-owner registry. The amendment also partially limits the disclosure of information from federal gun traces--which Chicago Mayor Daley and other politicians have sought, in order to support their lawsuits against gun manufacturers. More detailed information is available from a 2004 article I wrote for National Review Online.

The gun control lobby, with New York City Mayor Bloomberg as the point man, are seeking to eliminate the Tiahrt Amendment entirely, but their public campaign has said almost nothing about the most of the provisions of the amendment. (Even though those provisions are contrary to the lobbies' support for comprehensive gun-owner registration.) Instead, they claim that the trace provisions interfere with local law enforcement. Notably, Kansas Rep. Tiahrt offered to negotiate technical modifications of the trace language, to the extent necessary to address legitimate law enforcement (as opposed to lawsuit) needs, but Mayor Bloomberg broke off the negotiations.

This is the Data Quality Act on Drugs:

Americans for Safe Access, an organization that promotes the legalization of medical marijuana, is launching a legal challenge against the federal government's claim that marijuana has "no currently accepted medical use." According to this story, ASA is using the Data Quality Act to challenge the scientific basis of such statements, in an effort to force the federal government to acknowledge the value of medical marijuana.

This could be an interesting test case for the judicial enforceability of the DQA. The law creates procedures to ensure the accuracy and reliability of scientific and technical information upon which federal government decisions are based. Enacted in 2000, it has been viewed primarily as a tool for industry to use to challenge the scientific basis of government regulations. If ASA is successful in their suit (and they have to overcome a challenge to their standing to sue), the DQA may be viewed in a different light.

More information about the lawsuit it available here. For the Science editorial on the suit, see here.

Great Moments in Washington, DC Police Work:

Amber Taylor describes an egregious example of incompetence by the Washington, DC police:

Yesterday, two men tried to break into my friend's home while she was inside. One man attempted to pry the door open and the other tried to get in the window. She called the police and, because the men were still milling around in a nearby alley, she was able to identify the perpetrators. One of them had just been released that morning . . .

The police told her that "D.C. doesn't have an attempted burglary statute" and so they could not arrest the men. They let them go, although now they know who my friend is, where she lives, and that she fingered them to the cops.

As Amber notes in her post, DC does in fact have an attempted burglary law (see also here), and the police could have arrested the suspects on other charges as well.

Sadly, this is not an isolated incident. Despite its many virtues, Washington, DC has a longstanding reputation for having perhaps the worst city government in the country (see also here). That's one of the reasons why, when I moved to this area back in 2003, I chose to live in northern Virginia rather than in the District. Fortunately, I have had little occasion to use the services of the Fairfax County Police. But the one time I did need their help (a noise complaint that was a far less serious and urgent problem than that experienced by Amber's friend), they dealt with the issue swiftly and effectively. Perhaps if more people vote with their feet against DC, the District's political leaders will have some incentive to clean up their act.


Wednesday, July 11, 2007

Yesterday's Divided Sixth Circuit Decisions:

Yesterday, in Hartman v. Bagley, a divided panel of the U.S. Court of Appeals for the Sixth Circuit denied capital defendant Brett Hartman's appeal of the denial of his habeas corpus petition. Hartman was convicted for the brutal murder Winda Snipes -- he tied her up, stabbed her over 130 times, and then cut off her hands, ostensibly to help cover his tracks. The jury found him guilty of aggravated murder, in addition to kidnapping and tampering with evidence, and he was sentenced to death.

The three judge panel rejected Hartman's appeal. That's not too unusual, nor is the fact that the panel was divided. What is more interesting was the line up. Judge Gilman wrote the majority opinion joined by Judge Daughtrey. Judge Clay dissented in part, on the grounds that the trial court gave "unconstitutional acquittal-first jury instructions" and Hartman received ineffective assistance of counsel at the sentencing phase. All three judges were Clinton nominees, and if Hartman's case was strong enough to convince Judge Clay, I would have thought it would at least have convinced Judge Daughtrey as well.

Yesterday the Court also issued a divided opinion in Brown v. Cassen Transport Co., involving claims that a company violated RICO by conspiring to deny worker's compensation benefits. Judge Gibbons wrote the opinion of the Court upholding dismissal of the case. Judge Moore concurred in part and dissented in part, and Judge Ackerman (sitting by designation) wrote a separate concurrence. Judge Ackerman, for his part, noted he was a "visiting fireman" who had to follow sixth Circuit precedent, even if he believes it is incorrect and should be reviewed en banc.

Are you an Attorney Who Wants to "Retire and Teach at a Law School"?:

Then read this article. The two most salient points are that becoming a tenure-track law professor is far from "retiring," and the job is primarily "a writing job, not a teaching job." If, for example, you have no law review publications, almost no one is going to take you seriously as a faculty candidate, and certainly not as a candidate to arrive with tenure. If you want to teach as an adjunct for fun, that's another story entirely.

I've on occasion had prominent government attorneys approaching retirement waste my time trying to persuade me that they would be the perfect candidate for a senior (tenured) appointment at GMU, even though they had none of the most significant attributes (most important scholarly record/evidence of scholarly promise) that we look for in any faculty candidate, much less a candidate seeking immediate tenure, and had no intention of remedying that before they went on the market.

Would a Smaller Ninth Circuit Get Reversed Less Often?

Vanderbilt law professor Brian Fitzpatrick looks at the U.S. Court of Appeals for the Ninth Circuit (where he clerked), and how it fared before the Supreme Court this past year.

The 9th Circuit, which hears appeals in federal cases in the Western United States, is the largest of the 13 such courts, with 28 active judges and more than 20 part-time senior judges. The 9th Circuit is almost three times the size of an average court of appeals, and its jurisdiction stretches from Alaska to Arizona, an area comprising nearly one-fifth of the American population.

The 9th Circuit also has a long-running streak as the most overturned, which went unbroken this year. The Supreme Court reviewed 22 cases from the 9th Circuit last term, and it reversed or vacated 19 times. By comparison, the Supreme Court reviewed only five cases, vacating or reversing four, from the next-busiest court of appeals, the 5th Circuit based in New Orleans.

In other words, although the 9th Circuit decided only one-third more appeals on the merits than the 5th Circuit, it was reversed nearly five times more often.

Noting the Ninth Circuit's high rate of reversal is nothing new. What Fitzpatrick adds, however, is an explanation of how the Ninth Circuit's large size may contribute to the high reversal rate. Specifically, he argues that as the number of judges on the Ninth Circuit increases, the likelihood that it will issue outlier opinions increases.

Consider a hypothetical court of 28 judges (the number of active judges currently on the 9th Circuit), in which six of the judges are extreme. The probability of such a court randomly selecting a panel with at least two extreme judges is almost 11%. But if it were divided into two courts — each with 14 judges, three of whom are extreme — that probability falls to 9%.

A difference of 1% or 2% may not seem like much, but the 9th Circuit decides more than 6,000 cases every year. This means that if the 9th Circuit is anything like my hypothetical court, splitting it in half would save 60 to 120 appeals a year from being decided by panels with a majority of extreme judges.

On this basis, Fitzpatrick concludes that as long as the Ninth Circuit remains disproportionately large, it will continue to issue "extreme" opinions at a disproportionate rate, and "it is likely to continue being disproportionately reversed by the Supreme Court."

The Politics of Volokh Conspiracy Readers: We've now had more than 2,400 responses to the reader poll on your political views, and I find the results really interesting. The single biggest category was self-identified libertarians, 29% of the responses. That's not surprising: we're a libertarian-leaning group, even if we sometimes occupy the Ninth Circle of Libertarian Hell.

  I was surprised by some of the results, though. In particular, there was an almost perfect symmetry between right-of-center and left-of-center responses. Taking out the 29% who identified as libertarian and the 8% who felt they didn't really fit a category, the remaining group broke down as follows:
I'm very conservative 11%
I'm moderately conservative 18%
I'm in the center 7%
I'm moderately liberal 18%
I'm very liberal 8%
  According to these figures, 29% of responses identified readers as right-of-center, and 26% identified readers as left-of-center. Further, 43% identified themselves as being moderates in one way or another (moderate conservatives, centrists, or moderate liberals). In contrast, only 19% of responses identified readers as strongly on the left or right.

  It's not scientific, of course, but I still think it's very interesting. Incidentally, I found the free Pollhost software very easy to use; I'll probably be doing more polls on occasion in the future to gauge reader response to current events and stuff like that. Anyway, thanks to everyone who participated.

  UPDATE: I have amended the post to clarify that the blockquoted list is just a subset of the results. Sorry if that caused confusion.
Did White House Censor Surgeons General?

Yesterday the House Committee on Oversight and Government Reform held a hearing on "The Surgeon General's Vital Mission: Challenges for the Future." According to Committee Chair Henry Waxman (D-CA):

Political interference is compromising the independence of the Office of the Surgeon General. On key public health issues, the Surgeon General has been muzzled. The Surgeon General’s greatest resource — his or her ability to speak honestly and credibly to the nation about public health — is in grave jeopardy. . . . as we will hear this morning, political interference with the work of the Surgeon General appears to have reached a new level in this Administration. We will hear how reports were blocked, speeches were censored, and travel restricted.

Among those who appeared at the hearing was former Bush Administration Surgeon General Richard Carmona, who testified:

the nation’s doctor has been marginalized and relegated to a position with no independent budget, and with supervisors who are political appointees with partisan agendas. Anything that doesn’t fit into the political appointees’ ideological, theological, or political agenda is ignored, marginalized, or simply buried. . . .

Historically, the Surgeons General have occupied increasingly embattled positions where each has had to fight to scientifically address the contemporary health issues of the nation and the world within an increasingly partisan, ideologically, and / or theologically driven political agenda that is often devoid of open discussions of scientific evidence or data.

Carmona's written statement does not provide details of alleged political interference during his term as Surgeon General. This Washington Post story, however, does:
In one such case, Carmona . . . said he was told not to speak out during the national debate over whether the federal government should fund embryonic stem cell research, which President Bush opposes.

"Much of the discussion was being driven by theology, ideology, [and] preconceived beliefs that were scientifically incorrect," said Carmona, one of three former surgeons general who testified at yesterday's hearing. "I thought, 'This is a perfect example of the surgeon general being able to step forward, educate the American public.' . . . I was blocked at every turn. I was told the decision had already been made — 'Stand down. Don't talk about it.' That information was removed from my speeches."

The problem with this example is that the debate over whether the federal government should fund embryonic stem cell research is not a scientific debate, but a moral one. Opposition to such research is almost always based upon a belief that the use of embryos for such research is immoral — not that it is ineffective or that it cannot lead to medical advances. Some opponents of stem cell research spin scientific evidence to support their cause, exaggerating the potential of adult stem cells, but proponents of embyonic stem cell research engage in spin and hyperbole of their own. In the end, the decision whether or not to support funding of embryonic stem cell research is a normative policy decision, and it is not "political interference" with science for an administration to expect political appointees to support the administration's policy on this issue — whatever that policy is.

The Post also provides a second example:

Carmona said that when the administration touted funding for abstinence-only education, he was prevented from discussing research on the effectiveness of teaching about condoms as well as abstinence. "There was already a policy in place that did not want to hear the science but wanted to just preach abstinence, which I felt was scientifically incorrect," Carmona said.
This example is harder to evaluate because it is less clear what actually occurred. If, for instance, the federal government was presenting false or misleading information about the effectiveness of abstinence-only education, and preventing Carmona's office from presenting accurate information, then this would be a good example of political manipulation of science. If, on the other hand, Carmona was prevented from expressing a purely policy disagreement with the administration, then it would not be such a good example. From what I know of the Bush Administration's policies and activities in this area, I suspect the former is closer to what occurred, but the news account does not provide enough detail to be sure.

The point here is that it is important to distinguish between scientific conclusions and normative policy judgments, and to recognize that the former may inform, but rarely determine, the latter. In many instances when scientists charge political interference, their real complaint is that those with policy-making authority do not support the scientists' preferred policies, and many claims of "censorship" are nothing more than the efforts of one administration or another to ensure that federal agencies support administration policy. There are plenty of examples of real science politicization in the current and prior administrations, and these are the incidents that merit our attention.

There is no doubt that the Bush Administration has sought to politicize science in some areas. In this it is not alone, however. As the Post further reported:

[Former Surgeon General David] Satcher, Carmona's predecessor, who served from 1998 to 2002, said that under President Bill Clinton he could not release a report on sexuality and public health, in part because of sensitivities triggered by the Monica Lewinsky scandal.
As I have argued before (in this series of posts), science politicization is not the province of either party. There is plenty of blame to go around, and a need for greater attention to the institutional arrangements that place undue political pressure on science in the first place.

UPDATE: The New York Times story on the hearing provides more evidence of increased politicization of the Surgeon General's office during the Bush Administration, such as some of the accusations mentioned in the comments. (He had to mention President Bush three times per page in speeches!?! What were they thinking?!?) Like the Post story quoted above, however, I think this report also reflects some confusion about the role of science in public policy. For instance, the Times reports:

Dr. Carmona wanted to address the controversial topic of sexual education, he said. Scientific studies suggest that the most effective approach includes a discussion of contraceptives.

“However there was already a policy in place that did not want to hear the science but wanted to preach abstinence only, but I felt that was scientifically incorrect,” he said.

Now I certainly would want my children to receive sex education that reduces their chances of contracting sexually-transmitted diseases, but I also recognize that this is based upon a value judgment, rather than a scientific determination. Others may prefer abstinence only education even if it is not the most effective way to reduce STDs. For instance, they may believe such instruction achieves other ends, such as delaying sexual activity by school children (if such education actually achieves this), or is simply more moral. I find this perspective to be misguided, but I do not believe it is "scientifically incorrect." In short, a policy decision to "preach abstinence only" might be wrong, but it would not necessarily be "scientifically incorrect." On the other hand, factually inaccurate or misleading claims about abstinence only education would be. Dr. Carmona would be correct to be concerned about the latter, and insofar as the Bush Administration blocked him it is deserving of criticism, but I think Carmona's statement implies a desire to speak to the wisdom of the policy itself.

Chinese Government to Dynamite Religious Shrine:

When the Taliban demolished statues of the Buddha, many people all over the world, including many non-Buddhists, denounced the destruction as an act of barbarism. The government of China has announced plans to perpetrate a similar atrocity.

In Tianjiajing, Henan province (east-central China)is a century-old sanctuary of the Virgin Mary. The sanctuary was nearly destroyed by the Japanese, and later by the Red Guards, but since 1979, citizens have been rebuilding it.

The sanctuary features a statue of Mary in her role as "Our Lady of Mount Carmel." On July 16, the worldwide Mount Carmel feast day, as many as fifty thousand pilgrims visit the sanctuary. Yet as reported in, the provincial government has recently forbidden visits to the shrine, and declared that the police and military will prevent the July 16 pilgrimages. Moreover, the government has declared that the entire shrine will be dynamited. Nor will local Catholics be allowed to save the Mary statue, or other sacred artwork on the site, by removing them before the explosions go off.

Some local Catholics believe that the government may want the property, which sits high on a mountain overlooking a valley, to build a hotel, or for a home for a high Communist party official. This certainly possible; as Mencius, the greatest developer of Confucian thought, observed, "Now the way feudal lords take from the people is no different from robbery." But mere rapacity does not explain why the government is so determined to destroy the statue, rather than allow it to be taken to another location.

The Chinese government is terrified of large public assemblies not directed by the government. Should the Mary statue not be destroyed, its new location might become a site of mass gatherings. People at the mass gathering would of course remember the history of the theft of the statue's original location.

Around the world, many people are urging their own governments to request that the Chinese government cancel plans to demolish the Tianjiajing sanctuary. The dynamiting would reveal the current Chinese regime, at least in this regard, as even more maliciously destructive than the Japanese fascist army or Maoist Red Guards.

"The mandate of heaven" was the traditional ideological basis of the rule of a Chinese government. Mencius said: "Heaven sees as the people see; Heaven hears as the people hear." Thus, the dissatisfaction of the people could remove the mandate of Heaven from a ruler, and place it on another ruler. Mencius considered revolution to be morally imperative in some cases.

A government which trembles in fear at the prospect of China's tiny Catholic minority gathering to honor the Virgin is plainly a government which has lost the Mandate of Heaven; it is the kind of tyranny against which Mencius and Confucius specifically sanctioned armed revolution. (Analects 11:17: Mencius book 7).

Paulsen on Constitutional Interpretation: Over at Balkinization, Michael Stokes Paulsen has an entertaining post about the Cal Tillisch approach to constitutional interpretation.
More on Abusing Children in the Name of Prosecuting Child Abuse:

From the amicus brief of the Committee of Concerned Social Scientists, State (New Jersey) v. Michaels, one of the bogus child care sex abuse cases of the late 80s and early 90s:

After reading a number of these interviews, it is difficult to believe that adults charged with the care and protection of young children would be allowed to use the vocabulary that they used in these interviews, that they would be allowed to interact with the children in such sexually explicit ways, or that they would be allowed to bully and frighten their child witnesses in such a shocking manner. No amount of evidence that sexual abuse had actually occurred could ever justify the use of these techniques especially with three- and four-year-old children. Above and beyond the great stress, intimidation, and embarrassment that many of the children so obviously suffered during the interviews, we are deeply concerned about the long-lasting harmful effects of persuading children that they have been horribly sexually and physically abused, when in fact there may have been no abuse until the interviews began.

Warning, graphic below.

And out of the mouths of babes, from an interview of one of the children in that case:


"The Moral Force of Majority Rule" as a Limitation on the Political Effectiveness of Supermajority Rules:

An interesting post by Adrian Vermeule on the Oxford University Press blog.

I've Got Nothing to Hide -- But I Do Have A Lot of Downloads: I've joked before that if you want to top all the SSRN rankings, write a piece about privacy or computer hacking and submit it to Slashdot. Dan Solove proved the point this week by submitting a forthcoming symposium article, "I've Got Nothing to Hide" and Other Misunderstandings of Privacy, forthcoming in the San Diego Law Review. Slashdot picked it up yesterday afternoon, and in less than 24 hours Dan has picked up more than 27,000 downloads. That's right: 27,000, in less than a day. That's a lotta downloads.
A New Academic Stereotype?

In this essay in the American Scholar (hat tip Daniel Drezner), Yale Professor William Deresiewicz claims that there is a new negative stereotype of academics in films and other pop culture media:

The alcoholic, embittered, writer-manqué English professor who neglects his family and seduces his students is a figure of creative sterility, and he is creatively sterile because he loves only himself. Hence his vanity, pomposity, and selfishness; his self-pity, passivity, and resentment. Hence his ambition and failure. And thence his lechery, for sleeping with his students is a sign not of virility but of impotence: he can only hit the easy targets; he feeds on his students’ vitality; he can’t succeed in growing up.

Deresiewecz considers a number of movies and novels about academics that he claims support his thesis. Strangely, however, he ignores what is by far the most popular modern movie series with an academic as the central character, one who teaches at the ultra-scholarly University of Chicago, no less. I refer, of course, to the Indiana Jones series, which has a new installment in the works. Now THAT'S a stereotype that might yet improve the image of our profession.

UPDATE: Some commenters claim that Indiana Jones didn't really teach at the University of Chicago. However, I appeal to the authority of this very scholarly article on the portrayal of the U of C in the movies, as proof that he did.

Universal Health Care:

Some comments to Ilya's post on Brink Lindsey reminded me that I get puzzled when I see libertarian and conservative think tanks (and individuals) go ballistic whenever anyone suggests having the government require "universal health care." See, e.g., the controversies in Massachusetts and California. It seems to me we already have universal health care; by federal statute, anyone has the right to show up at any hospital emergency room in the country, and get whatever care they need regardless of their ability to pay. Now, admittedly, this is an especially dumb kind of universal health care, because it neglects primary care, focuses on especially expensive emergency care, and turns emergency rooms into family physician's office (except, to avoid draconian liability under federal law, emergency rooms will be much more eager to order every possible test under the sun, lest they be accused of neglected their federal law obligations). The costs of such care, along with whatever other costs to the health care system the uninsured are able to pass on (bills not paid, contagious diseases spread, whatever), are paid by the rest of us, as surely as if they came out of the tax system. Moreover, healthy individuals who rely on the safety net for their care instead of paying for their own insurance (as well as employers who don't provide insurance) are free-riding on the rest of us. I'm against socialized medicine, and I'm against a single-payer system, (and I'm against Medicare for that matter, which not only subsidizes many well-off rich, but could hardly be better designed to waste money if it were done intentionally), but I simply can't get up in arms about "universal health care." We have a version of it already, but it's just a stupid and counterproductive version, and I'm willing to listen to alternatives that are less costly and more efficient, even if it means that the government is more directly involved, as with employer mandates.

Judicial Clerkships From Hell:

University of San Diego law professor Michael Rappaport describes his "clerkship from hell" with Third Circuit Court of Appeals Judge Dolores Sloviter. The apparently hellish experience of clerking for Judge Sloviter is also the subject of a new thinly veiled novel by recent Columbia Law School grad Saira Rao, who also clerked for Sloviter. I don't know Judge Sloviter, but I do know Michael Rappaport, and can therefore testify that he's not the kind of person to be easily offended by minor instances of mistreatment by a boss.

Unfortunately, Judge Sloviter is not the only federal judge who apparently abuses her clerks and other staff. Federal judges have weaker incentives to treat their employees well than most other employers do. They, of course, have life tenure and therefore won't lose income or their jobs if they alienate their clerks. It's possible that a reputation for mistreating clerks will reduce the quality of future clerks; however, there will still be enough applicants for the judge to get at least minimally competent help, and that is sufficient for the judge to be able to get the clerks to handle whatever work she wants to transfer to them. Judges with low-quality clerks will, on average, write worse opinions than judges with good ones. But an abusive judge may not care much about that.

This raises the more general issue of how clerkship applicants can avoid such judges, or at least know what to expect if they accept clerkships with them. One possible way is to talk to the judge's former clerks. Unfortunately, however, ex-clerks have strong incentives to avoid saying anything negative about their judges. Even if the judge is a complete troll, his or her name is going to be listed on the ex-clerk's resume for years to come, and prospective employers are likely to call up the judge for a reference. It's not hard to see why this would create a strong disincentive against telling tales out of school. If, however, a judges' ex-clerks nonetheless DO say critical things about him - as Rappaport and Rao have done, that is a very strong signal that this is one judge you should avoid like the plague.

Another potential source of information is ex-clerks for other judges on same court. By the time I completed my year of clerking on the Fifth Circuit Court of Appeals, I had a pretty good idea of which Fifth Circuit judges treated their staffs well, which were indifferent, and which ones (very few, I should note) were petty tyrants (none as bad as Judge Sloviter seems to be). Other ex-clerks probably have similar knowledge about the judges on the courts where they served. Unlike criticizing your own judge, commenting negatively on another judge isn't likely to cause serious damage to an ex-clerks' career prospects. Therefore, you have a better chance of getting an honest answer.

There are probably other ways to get information on judges' treatment of their staff. But I can't think of an equally promising one that is likely to be readily available to clerkship applicants.

Related Posts (on one page):

  1. More Ways to Identify Judicial Clerkships from Hell:
  2. Judicial Clerkships From Hell:
Islands, Lakes, Lakes on Islands, Islands on Lakes, Etc.:

A cool photo album. Thanks to Hanah Metchis Volokh for the pointer.

The Washington Post's Weak Case That Gonzales Lied About Patriot Act Violations: The front page of yesterday's Washington Post had a story by John Solomon suggesting that Alberto Gonzales may have lied to Congress about the Patriot Act in 2005. Although the story received a lot of play on the Hill and in the blogs yesterday, on closer inspection I think this story is seriously weak if not outright misleading. Here's the intro of the story:
As he sought to renew the USA Patriot Act two years ago, Attorney General Alberto R. Gonzales assured lawmakers that the FBI had not abused its potent new terrorism-fighting powers. "There has not been one verified case of civil liberties abuse," Gonzales told senators on April 27, 2005.

Six days earlier, the FBI sent Gonzales a copy of a report that said its agents had obtained personal information that they were not entitled to have. It was one of at least half a dozen reports of legal or procedural violations that Gonzales received in the three months before he made his statement to the Senate intelligence committee, according to internal FBI documents released under the Freedom of Information Act.
  I have already called for Alberto Gonzales to resign, and I still think he should resign, so I'm not one to go out of my way to defend Gonzales. But these criticisms strike me as really quite weak, and that they rest on some questionable connecting of dots by Post reporter John Solomon.

  First, some context. Gonzales's statement was made in the context of the sunsetting provisions of the Patriot Act. Congress had imposed sunset provisions on parts of the Patriot Act in 2001, and Gonzales was arguing that sunsetted provisions weren't necessary. Here's what he said:
Finally, I’d like to close by addressing a common question that must be answered by this Congress: the issue of whether we should continue to impose sunset provisions on critical sections of the PATRIOT Act.

The PATRIOT Act was a swift and decisive response to the attacks of September 11. In the weeks and months following the attacks in Washington, Pennsylvania, and New York, Democrats and Republicans came together to address the vulnerabilities in our nation’s defenses. Both Congress and the Administration worked with experienced law enforcement, intelligence, and national security personnel to design legislation to better protect the American people. Although there was extensive consideration in 2001, and although it is unusual to impose sunsets on statutory investigative tools, Congress included sunsets on certain provisions of the PATRIOT Act because members wanted to ensure that we were not risking the very liberties we were setting out to defend.

Today, we can all be proud. The track record established over the past three years has demonstrated the effectiveness of the safeguards of civil liberties put in place when the Act was passed. There has not been one verified case of civil liberties abuse.
    Did Gonzales have reason to believe that his claim was false? I'm not so sure. The Washington Post story discusses a handful of reports that were sent to Gonzales's office about findings of rules and laws that were broken in investigations relating to terrorism. But as I read the examples, I can't find any that clearly is a "civil liberties abuse" involving the Patriot Act. And given that, I'm not sure we have any reason to conclude that Gonzales was intentionally misleading Congress.

   According to the reports, which were obtained pursuant to a FOIA request by FOIA whiz Marcia Hofmann of EFF, investigators at some point conducted a physical search without consent, and once improperly continued a FISA warrant passed its deadline. In another case, an ISP goofed and gave the government more than it asked for under a proper national security letter (the government sealed up the package after they realized what had happened). Finally, in one case someone made a typo and asked for the wrong phone number in a national security letter, apparently obtaining the wrong set of phone logs.

  Among these claims, the first two don't seem to connect at all to the Patriot Act. The Patriot Act amended a set of preexisting laws, and the first two seem to involve laws not even amended by the Act. The latter two examples at least are in the ballpark: while the national security letter authority was created in 1986, it was at least amended by the Patriot Act, so it's at least possible to connect the authority to the Patriot Act. But it doesn't sound like the violations mentioned are directly Patriot-Act-related: typos happen even outside the Patriot Act, and inaccurate compliance with court orders by ISPs is a longstanding issue that well predates the Patriot Act.

  And even if you conclude that these violations involve the Patriot Act, are they really "civil liberties abuses"? The word "abuse" suggests something flagrant, either something intentional or at least really very reckless. In contrast, the reports that Gonzales's office received seem to involve the kind of occasional accidents that regrettably can occur; it's not obvious to me that they are abuses. I don't want to minimize the nature of the violations. Violations are always bad, and deserve a response. But the issue here is Gonzales's truthfulness, and I don't see how these reports are evidence that Gonzales was lying.

  In sum, I think Solomon's report is based on a few logical leaps, both about the Patriot Act and the meaning of Gonzales's statement. And let me repeat myself: I'm no fan of Gonzales. I think he should resign as AG. But the question here is whether Gonzales lied about the Patriot Act, and it seems like a pretty serious stretch to suggest that he did.

  But wait, there's more. I was also very puzzled by today's follow-up story, also in the Washington Post and also written by John Solomon. It seems that DOJ set up a phone call for the press with two DOJ officials, OIPR head James Baker and Ass't AG Ken Wainstein, to make the case that the Post story was misleading. Each defended Gonzales' remark on grounds a lot like the one I have made out above. But instead of featuring that as the key point, Solomon instead came up with what seems like a very strained interpretation of different remarks that Baker & Wainstein also each said.

  Baker & Wainstein apparently each stated that they had discussed the topic of civil liberties violations with Gonzales in the past. No details were given; the points were made very generally. Here's Baker: "I have discussed and informed attorneys general, including this one, about mistakes the FBI has made or problems or violations or compliance incidents, however you want to refer to them." Here's Wainstein: ""I've discussed a number of times oversight concerns and, underlying those oversight concerns, the potential for violations. And I'm sure we've discussed violations that have occurred in the past."

  How did John Solomon report that? Here's the title and first two paragraphs of Solomon's follow-up story today:
Gonzales Knew About Violations, Officials Say
By John Solomon
Washington Post Staff Writer
Wednesday, July 11, 2007; Page A03

Two senior Justice Department officials said yesterday that they kept Attorney General Alberto R. Gonzales apprised of FBI violations of civil liberties and privacy safeguards in recent years.

The two officials spoke in a telephone call arranged by press officials at the Justice Department after The Washington Post disclosed yesterday that the FBI sent reports to Gonzales of legal and procedural violations shortly before he told senators in April 2005: "There has not been one verified case of civil liberties abuse" after 2001.
  Now, I don't know if Solomon had any control over the title, but both the title and the lead paragraph seem pretty misleading to me. As far as I can tell, nothing in the article suggests that Gonzales actually knew of the violations relevant to the story, as opposed to other violations at other times. However, the title and paragraph certainly seem designed to make it seem like Baker & Wainstein had admitted to informing Gonzales directly of those reports.

  Maybe I'm missing something, and if so I would be happy to post a correction. But based on what I can tell so far, I just don't think that Solomon's story holds up.
"Avoiding the M-Word":

A good column from Jeff Jacoby (Boston Globe).

The First Amendment and Cockfight Videos:

Adam Liptak at the New York Times reports:

A company that broadcasts cockfights on the Internet filed suit in federal court in Miami on Tuesday to challenge a largely untested federal law that makes it a crime to sell depictions of animal cruelty.

The owners of a Web site that shows cockfights says that though cockfighting is illegal in most states, it is legal in Puerto Rico, where the Web casts are from....

The constitutionality of the same law is at issue in a case before the federal appeals court in Philadelphia, in which a Virginia man was sentenced to three years in prison for selling videotapes of dog fights....

The relevant statute, 18 U.S.C. § 48, criminalizes (a) "knowingly creat[ing], sell[ing], or possess[ing] a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce," though with an exception for (b) "any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value."

"[D]epiction of animal cruelty" is defined in (c) to include "any visual or auditory depiction ... of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the [jurisdiction] in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the [jurisdiction]." This means that it's a federal crime to distribute videos of cockfighting in, say, California (assuming the depictions lack "serious ... value") even if the cockfighting was legal in the place (Puerto Rico) in which the video was created.

The statute was enacted as an attempt to stop the distribution of so-called "crush videos," which generally depict a woman's legs and feet, often in high heels, stepping on insects, mice, or kittens; and it does indeed seem to cover such videos, assuming the relevant state law bars the underlying conduct (often yes as to killing kittens, often no as to killing insects). Don't ask me why people would want to watch this stuff, but apparently some get their jollies this way.

But on its face, the statute would also punish:

  • A TV program showing foreign bullfights, which might be legal in the country in which they're taken, but illegal in at least some states in which the program is shown.

  • A magazine with photographs of people illegally killing endangered species in a foreign country.

  • A magazine with photographs of people committing cruelty to animals, aimed at exposing and punishing such cruelty, so long as the magazine is sold on newsstands or by subscription (rather than given away).

The drafters of the statute might not have wanted to punish this sort of material, but clause (a) does indeed cover it. Clause (b) might well exempt such material, but that depends entirely on how judges and juries interpret "serious religious, political, scientific, educational, journalistic, historical, or artistic value." One can certainly argue that all the above has such serious value, but at least as to the first item and maybe as to the others, some factfinders might conclude otherwise — the test is quite subjective, and some jurors or judges might well say "this bullfighting scene has no serious value; it's just aimed to shock, titillate, and get ratings."

Note also an important difference between this clause and the third prong of the obscenity test, from which the clause is borrowed: clause (b) doesn't say that the work has to be judged "taken as a whole." This means the "serious value" exemption under this law may well be a smaller safe harbor than the "serious value" exemption under obscenity law.

The statute doesn't fit within the existing obscenity or incitement exceptions. President Clinton's signing statement tried to cabin the statute by saying that the Justice Department should construe the law narrowly, limiting it to "wanton cruelty to animals designed to appeal to a prurient interest in sex"; that at least brings it closer to the obscenity exception, though not entirely within it. But the signing statement isn't part of the law, and is certainly not binding on later administrations.

The real question is whether the child pornography exception — the one exception that allows restriction of the distribution of speech because of the manner in which the speech was created — should be extended to cover the distribution of material the making of which involved harm to animals, rather than just harm to children. The argument would be that, as with child pornography,

  1. production of cruelty videos can be done in secret, but the distribution has to be relatively public;

  2. a ban on production will thus be very hard to enforce;

  3. so long as there's money to be made in distributing cruelty videos, there'll always be someone willing to produce them; and thus,

  4. to prevent the harm that takes place when the videos are made (injury to animals), one also needs to stop their distribution.

The argument against extending the child pornography exception would be:

  1. The statute might end up suppressing a lot of valuable speech, such as the film of the bullfight and the like, and clause (b) is an inadequate safe harbor because it's much too vague.

  2. The statute will in fact suppress more valuable speech than child pornography law does, because depictions of animal cruelty are more likely to be relevant to political debates or to legitimate art than depictions of sex (or of lewd exhibition of genitals) involving children.

  3. The harm that the distribution of this speech causes — indirectly furthering animal cruelty — is much less severe than the harm of indirectly furthering sexual exploitation of children. (The legal system itself embodies such a judgment — child sexual abuse is a very serious crime, generally punished much more severely than animal cruelty. Cockfighting, in particular, is not even a crime in Puerto Rico, though Congress could have outlawed it if it wanted to. For more on when and whether it's legitimate for courts to draw such crime severity lines as a constitutional matter, see Crime Severity and Constitutional Line-Drawing, 90 Va. L. Rev. 1957 (2004).)

This also illustrates how the "slippery slope" can work in a legal system that's built on precedent and analogy. Crush video laws have indeed been advocated by their supporters as analogous to child pornography bans; and while courts might well draw the line between the two, perhaps on the grounds that child sexual abuse is just much more harmful than crush videos, the analogy seemed to be at least helpful in persuading legislatures to enact the laws.

Some might embrace the slippery slope here, if they think that cruelty videos should be banned. Some who disagree about cruelty videos nonetheless might accept the slippery slope risk, on the theory that child pornography is so harmful that we should have an exception for it even if there's some risk that the exception will spread further than one would like. (That's my view.) But one shouldn't pretend that the slippery slope risk doesn't exist.

UPDATE: Here's the Complaint in the lawsuit that seeks to have the law stricken down; the lawyer is David Markus, of the Southern District of Florida Blog.

The Terrorists' Court: Jack Goldsmith and Neal Katyal have a very interesting op-ed today proposing a new system for detaining terrorist suspects. Seems pretty sensible to me. Your thoughts?
Volokh Readers and the American Political Spectrum -- A Poll: I was very interested in yesterday's poll results on reader attitudes towards President Bush, and I wanted to add an important follow-up question: Readers, how do you identify yourself on the American political spectrum?

How do you identify your political orientation?
I'm very conservative.
I'm moderately conservative.
I'm in the center.
I'm a libertarian.
I'm moderately liberal.
I'm very liberal.
I really don't fit into any of these categories.
Free polls from

  I realize that this is completely unscientific and that I'm asking for a very crude measurement. Still, I'm interested in seeing the results.
New Draft of "Four Models" Paper: I recently posted a new draft of my forthcoming article, Four Models of Fourth Amendment Protection, on the meaning of the "reasonable expectation of privacy" test. I normally wouldn't mention a draft revision, but this one is substantially reworked and simplified; if you're interested in the Fourth Amendment in general and the reasonable expectation of privacy test specifically, you might want to check it out. I might also try to do a few blog posts about the article, and to respond to some of the interesting comments it has triggered, if readers are particularly interested in that.
Brink Lindsey's Case for Libertarian Optimism:

At Cato Unbound, Brink Lindsey (who earlier won fame for his interesting proposal for a liberal-libertarian political alliance), has a fascinating essay arguing that longterm historical trends favor libertarianism.

Lindsey makes a compelling case that both economic and social freedom have made significant advances over the last 40 years, and that both popular and elite opinion has gradually moved in a libertarian direction over that time. Obviously, Lindsey's analysis of longterm trends has to be weighed against the significant setbacks that libertarian causes have sustained during the Bush Administration as a result of Bush's disastrous big-government conservatism and the resurgence of old-style big government liberalism on the political left. I also have a few other reservations about Lindsey's arguments that I may detail in a later post, if time permits.

Nonetheless, I think that Lindsey is right to insist on the primacy of longterm trends over short-term ones. And I also agree that many libertarians are unduly pessimistic as a result of overrating the significance of recent events, a point I elaborated on in this post. For the reasons Lindsey describes so well, long-run economic and social trends favor libertarianism in significant ways. But we will have our work cut out for us beating back resurgent statism over the next few difficult years.


Tuesday, July 10, 2007

Thoughts from Janet Hoeffel, Author of a Very Successful Student Note:

As I mentioned last month, one occasionally sees a student law review article that is cited a great deal by courts — even a lot more than are most articles by tenured academics. Of the student articles I've seen that are published since 1990, the one most cited by courts is Janet Hoeffel's The Dark Side of DNA Profiling: Unreliable Scientific Evidence Meets the Criminal Defendant (Stan. L. Rev. 1990), which has been cited by over 25 cases and over 90 academic works.

I therefore thought I'd ask Prof. Hoeffel, who now teaches law at Tulane, some questions about her article, so that other prospective authors may get some guidance or at least inspiration. Prof. Hoeffel kindly replied:

1. Why did you decide to write — and publish — your article?

I would love to say I had high and mighty goals in mind in my decision to write a Note. Nope. A mere requirement of the Stanford Law Review. I have always been a good worker bee — I do what I am told. I reach for the next brass ring as I was taught. I published the Note because the Review accepted it and I was flattered.

I have to tell you, though, that the topic was so hot that I completely burned myself out trying to constantly update the article. I skipped class and worked long hours into the night. Again, the ideals driving me were not high and mighty — mere perfectionism. If I was going to publish it, it had to include every last speck of information out there on DNA, down to the most recent news article. I never in a million years dreamed the article would prove to be so useful.

2. How did you get the idea for the article?

I scoured the earth for an idea for my Note, and flipped through the card catalogue (remember those?) and came across something on "DNA fingerprinting," as they called it. At that point, only one person had written an article about the new use of DNA typing. I was always strong in the sciences and forensic science interested me. I knew I was going to become a public defender so I set out to see whether this new science was ready for the prosecution of the criminally accused.

3. Did you find you learned useful things — whether about writing, about legal reasoning generally, or just about the area you were discussing — while writing the article?
4. Have you found that having published the article has helped you in your career?

What I found most useful was not the writing of the article (although I can blue book the hell out of an article), but the actual knowledge I acquired. I became an instant expert because so few judges or lawyers understood the science, or its fallacies.

When I became a staff attorney at the Public Defender Service in Washington, DC, I did trainings on DNA typing, and someone dubbed me the "Barry Scheck" of the office. I have given other trainings as well and people, amazingly enough, still turn to me as the expert.

The Note helped me get hired as a judicial clerk, at the public defenders, at a private firm, and obviously, it also helped me to get a job as a law professor, because I was ten years out of law school when I applied, with only this Note under my belt. The Note won an award or two in law school, so that helped pad the resume as well.

The most rewarding aspect of all of this, though, was its usefulness to courts and litigants. I am pretty certain that none of my articles will ever be as useful as that one was.

Related Posts (on one page):

  1. Thoughts from Janet Hoeffel, Author of a Very Successful Student Note:
  2. Interview with Victor Cosentino, Author of a Very Successful Student Note:
VC Poll on President Bush: In light of my post below about President Bush's approval rating, here's a question: What do you think about President Bush's performance as President? Here's a completely, entirely, 100% unscientific poll for you to take:

Free polls from
Do you approve of President Bush's performance as President?
Yes, I approve. No, I don't approve. I'm undecided.    

Bush Approval Ratings Reach New Low: looks at all the different presidential polls and comes up with a trend line indicating President Bush's latest approval ratings. The trend line was recently updated, and it indicates that the President's popularity continues to drop: according to the site, the President's approval rating as of July 8 hit a new low, about 27.7%. You can see the chart here together with the individual polls that went into the data.
Senators, Prostitution, and Crime:

Ann Althouse makes a very good point:

I hate seeing people publicly humiliated for the sexual things they do in private. But the government is criminally prosecuting a woman, Deborah Jeane Palfrey, for what it says was a prostitution ring. These are federal charges, and the senator, David Vitter, has some responsibility for the laws that make this prosecution possible.

Vitter situates his misdeed in the realm of religion and private morality: ... "Several years ago, I asked for and received forgiveness from God and my wife in confession and marriage counseling... Out of respect for my family, I will keep my discussion of the matter there -- with God and them...." ...

Palfrey can't say God has forgiven her and walk free. In fact, Vitter's statement hurts Palfrey because it strongly implies that Palfrey was doing what she's accused of. Vitter's confession -- intended to move us to mercy -- links him to criminal activity, but only she is facing criminal punishment.... It's not a matter to be resolved within the realm of church and family as long as Palfrey is being prosecuted.

Why Does Israel Get So Much More Left-Wing Criticism than France?

Sasha Volokh is right to point out that not all left-wing criticism of Israel is anti-Semitic or otherwise biased, even in cases where the critics attack Israel while ignoring other government that are guilty of similar offenses to a much greater extent. As Sasha puts it:

For instance, one might think that only Israelis are sane, basically rights-respecting, and receptive to basic Western values — so that one can appeal to Israelis' basic principles in arguing that they're acting wrongly. Or one could believe that only Israel — and not Sudan or China — has a healthy enough democratic culture that this sort of treatment will change its policies. In other words, far from being an anti-Semitic policy, the boycott could be an act of deep respect for Israel, essentially saying: "Only you guys aren't savages; we think you might actually listen."

But I am skeptical that this distinction really does account for the vastly disproportionate focus on real and imagined Israeli offenses in many left-wing quarters. The problem is that even other liberal democracies don't get even a fraction of the criticism that Israel gets when they enact comparable policies.

Consider the case of France, which doesn't get so much as a tiny fraction of the hostility directed at Israel, even though most of the accusations typically made against Israel could just as easily be leveled at the French government. The French comparison is far from the only example of anti-Israel double standards. But it has the virtue of highlighting that double standard with unusual clarity because the main arguments used to defend the double standard in other cases simply don't apply to France. The French surely accept "basic Western values," and have a "healthy democratic culture" at least as much as the Israelis do. Let's consider the bill of indictment that left-wingers could make against France were they so inclined:

I. Human Rights Violations.

The French state's likely complicity in the 1994 Rwandan genocide (see here and here) by itself dwarfs all the human rights offenses that can reasonably be charged against the Israelis. France's draconian anti-terrorism laws infringe on civil liberties as much or more than Israel's do, and much more than those of the US. Yet even utterly bogus claims of Israeli "genocide" get more attention than France's role in Rwanda.

II. "Imperialist" Occupation.

For those who believe that occupation is the greatest of all evils, there is the fact that French troops have repeatedly occupied various African nations over the last 40 years in order to prop up regimes that support French economic and political interests or help overthrow those that don't. This, despite the reality that the security threat these governments pose to France is negligible compared to that posed to Israel by its Arab neighbors. When it comes to the traditional left-wing bete noir of "imperialism," the Israelis are pikers compared to the French.

III. Mistreatment of Muslim minorities.

Finally, France's treatment of its large Muslim minority leaves - to put it mildly - a great deal to be desired, and is hardly better than Israel's treatment of its own Muslim Arab minority (which, I agree, includes a great deal of unjustified discrimination). France's restrictive labor policies have led to 14% unemployment among the country's mostly Muslim immigrant population, with much higher rates than that among the young. The government has also forbidden Muslim students to wear veils and other religious symbols in public schools - a restriction on Muslim religious expression that goes far beyond anything done by the Israelis.

I do not claim that all these French policies are completely indefensible (except for the Rwanda case). To the contrary, there are at least minimally plausible arguments for all of them. For example, I have some sympathy for French arguments that the regimes their troops prop up in Africa are often less bad than the likely alternatives.

But similar arguments can be used to defend the parallel Israeli policies; If French-supported African dictators may be better than their rivals, there is at least an equally strong case that the Palestinians are better off under Israeli occupation then left to the tender mercies of Hamas and Fatah (the realistic alternatives). Despite their many (often legitimate) grievances against the Israeli government, Israeli Arabs almost uniformly reject proposals to transfer their villages and towns to Palestinian rule. The Israeli withdrawal from Gaza has not noticeably improved the lot of Gaza's Arabs, and may well have worsened it.

It is, I think, still possible to make a left-wing case that, overall, Israeli policies are, say, 10% worse than French policies. Perhaps even 50% worse. I don't agree with such claims, but they are not wildly implausible. However, it is utterly impossible for a fair-minded observer with typical left-wing values to conclude that Israel is 100 or 1000 times worse than France. Yet the ratio of left-wing criticism of Israel to left-wing criticism of France is far closer to 100-1 or 1000-1 than 1.5-1.

Perhaps the difference is due to ignorance. Many of those who spend lots of time and energy attacking Israel may simply be unaware of comparable French policies. Perhaps it is due to the far greater media coverage of Israel. But that only begs the question of why so many left-wing intellectuals and activists spend so much more time and effort learning about Israeli shortcomings than French ones, and why a mostly left-liberal media does the same.

Not even the alleged left-wing bias towards "underdogs" and against "the powerful" can explain the disjunction. France is much larger and more powerful than Israel (with about 10 times Israel's population and GDP), and France's enemies are weaker than Israel's are. From any objective viewpoint, France's policies are far more important than Israel's and deserve far greater attention. Perhaps not ten times more, but certainly not 100 times less.

Is anti-Semitism the only cause of the disproportion between left-wing criticism of Israel and those of France? Almost certainly not. Perhaps it is not even the most important cause. But the other likely causes - bias against a nation perceived as more of a US ally than France, sympathy for France's (pre-Sarkozy) anti-American rhetorical stance, an implicit belief that Jews should be held to "higher standards," etc. - are only marginally more defensible.

UPDATE: In case it wasn't clear enough in the original post, I am NOT analogizing France's treatment of its Muslim citizens with Israel's treatment of West Bank or Gaza Palestinians. I am analogizing that French policy with Israel's treatment of its Arab citizens.

However, I AM analogizing the condition of West Bank Palestinians to the condition of Africans living under dictators propped up by French occupying troops. Thus, claims to the effect that "France treats its Muslims better than Israel treats West Bank Palestinians" do not undermine my argument in any way. Defenders of the double standard between Israel and France must instead show that the condition of the West Bankers is overall worse than that of Africans living under dictators installed or propped up by the French military.

As I noted in my original post, both the French and Israeli military occupations can be supported on the grounds that the available alternatives (Hamas, Fatah, various repressive African rulers) are worse. Thus, I'm not necessarily condemning either. I do, however, insist that both be judged by the same standards.

Related Posts (on one page):

  1. Why Does Israel Get So Much More Left-Wing Criticism than France?
  2. On pro-Jewish anti-Zionism:
  3. Boycotting the British UCU Boycott of Israel:
Demographics and Legal Academic Reputation:

A lot of interesting things have been said about the gender makeup of Federalist Society events. But there's something much more complicated going on here, I think, than just the demographic makeup of Federalist Society regulars, or for that matter anything else that's specific to the Federalist Society. It may also be much more interesting — and possibly more troubling, depending on what you think the cause might be, and what causes along these lines you find troubling.

1. Most-cited law professors: Let's say that instead of going to a Federalist Society conference on Judge Bork (which had 19 panelists), you wanted to organize your own all-star conference with 19 law professors. And, wanting a proxy for scholarly reputation, you invited the 19 most-cited full-time law professors. (This is a highly imperfect proxy, but it's probably the most objective one we can use for this thought experiment. Note also that citation counts are for citations by law review articles, not by courts; that's just the data I happen to have.) How many women would there be at this conference?

Fortunately, Brian Leiter's 2002 most cited law faculty rankings give us an answer — one that's some years out of date, but that I suspect wouldn't differ much today. The answer is that 1 of the 19 panelists would be women; 18 of the 19 most-cited law professors (all but #15) would be men.

Of course, there's an obvious problem with that sample — most of the most-cited professors are in their 50s and 60s; when they were going to law school, there were few women in law school, and few women going into law teaching. For a better sense of the coming pattern (though not necessarily for a much better sense of what we might expect from conference invitations), we should be looking at a younger cohort. Let's avoid the gender imbalances caused by past gender imbalances in law school attendance by just inviting the 19 most-cited younger law professors, for instance ones who entered teaching since 1992 — conveniently, the result of another survey by Brian Leiter. And indeed this panel will not be 18/19th male.

It would be 100% male. Indeed, of the 50 younger scholars on Brian Leiter's list, only 6 (starting with #23) are women. Of all the cites to articles by those 50 scholars, only 8.7% are to articles by women. (See my spreadsheet based on the Leiter data.)

Again, I stress that citation counts are a very rough proxy for reputation, and they are biased among other things in favor of fields in which many articles are written. Within certain fields, the gender breakdown of the most-cited scholars may be quite different. And of course there are many women whose work has been heavily cited; the most cited active faculty colleague of mine at UCLA is Kimberle Crenshaw.

Still, the overall pattern of the data seems quite consistent, hard to dismiss as simply random or arbitrary, and thus quite striking. It also suggests that to the extent conference invitations are based in large measure on reputation, then if reputation is closely correlated with citation counts, it would be quite logical to see a lot of heavily male conferences.

2. Possible causes? Why, though, would this be? Women are 35% of all law professors, including 25% of all full professors. Women routinely graduate with top credentials from law schools; about 20-30% of Supreme Court clerks tend to be women. Why aren't we seeing 25-35% women among the top 20 most cited scholars?

Is it that scholars (whether just men or both men and women) are subconsciously or deliberately ignoring women's scholarship? Is it that women authors are being unfairly turned away by top journals? Is it that women are writing less, perhaps because they spend more time caring for kids? If so, how much of that is because the children's fathers refuse to do their fair share of the work, and how much of that is because the mothers value time with children more than the fathers do (and should the difference between the two causes matter)?

Is it that men tend to on average be more ambitious than women, more self-promoting, or more of whatever else that produces attention (quality-related or otherwise) for scholarly work, whether because of cultural reasons, biological reasons, or some mix of both? Is it that women tend to gravitate towards fields that for some reasons draw fewer citations? Are these effects chiefly present at the ends of the bell curve, or do they persist in considerable measure even further into the body of the bell curve?

These are difficult questions to answer, and perhaps even to ask — but they need to be asked if we want to think really hard about why we're seeing stark sex disparities in a wide range of legal academic contexts, from Federalist Society panels on.

3. Race and ethnicity: If you thought the sex picture was hard to explain, try this: If you look at the same top 50 most-cited who entered law teaching since 1992, you also see that (by my rough count, and judging by likely ethnicity, not by religiosity) 19 are Jews, a group that makes up 2% of the full-time working population. Part of this is the wild overrepresentation of Jews generally among the legal professoriate, a number that itself is hard to explain — Jim Lindgren's tentative survey from several years ago reported that 26% of law professors at top 100 law schools were Jews — but the numbers exceed even that.

Another 12 are Asians (meaning East or South Asians), a group that makes up 4% of the full-time working population. If you separate out South Asians (since in many ways it's just zany to lump Indians together with Chinese, or for that matter to lump together Chinese, Koreans, and Japanese), you'll find that 5 of the top 50 are South Asians, though South Asians make up 2/3 of 1% of the population. I don't recall precisely what fraction of the legal academy is Asian, but my recollection is that the fraction is no more than 5%, and thus far less than the 24% (or 10% for South Asians).

What's the reason for this? Subconscious tendencies to overcite certain ethnic groups? Disproportionate cultural distribution of various temperaments? Of attraction for certain kinds of intellectual questions? Beats me.

But look at this also another way: The 94% of the population that is neither Jewish nor Asian accounts for 30% of the total cites to articles written by the top 50 most-cited young scholars. Blacks make up 2 of the 50 spots, but once one excludes the Jews and the Asians, they make up 2 of the remaining 19 spots — a percentage not far different from the black population of the U.S. divided by the total non-Jewish non-Asian population. (The numbers would doubtless differ for the overall list of most-cited professors, not limited to those who entered teaching since 1992, but I take it that the more recent list is a better picture of where the profession is headed, especially as to Asians.) Query then whether the underrepresentation of blacks is underrepresentation of blacks as such or overrepresentation of some tiny minority groups.

* * *

So, there it is. I am most emphatically not making any claims that I know the causes of these patterns. And I'd love to hear others' similar analyses of other datasets. As I mentioned, the most-cited data is hardly the whole picture, and maybe there are even some glitches that undermine the representativeness of this particular set of 50 names collected with certain date cutoffs. I'm trying to ask questions here, not to give answers.

But I also want to suggest that one set of answers, or at least reactions, is misguided: If we're going to wonder about demographic disproportions in reputation-based legal academic contexts — such as conference invitations — it's a mistake to see the Federalist Society as particularly unusual. Our own profession's citation patterns show stunning disproportions that can't be put off to any Federalist-Society-specific practices.

UPDATE: Christine Hurt (Conglomerate Blog) has information on the gender breakdown of professors who publish in the Harvard Law Review.

UPDATE: If you want an even zanier data point to explain, note that of the 6 women in the top 50 most cited scholars who entered the field since 1992, 2 are listed in the AALS Gay, Lesbian & Bisexual Community Law Teachers list (which, to my knowledge, is a means for people to identify their own sexual preference, and not just their scholarly interest area). This suggests that the underrepresentation of heterosexual women is even more striking than one might have at first thought — but that lesbian and bisexual women are overrepresented compared to women generally, and in this particular (small) list overrepresented even compared to their fraction of the overall population . A different sample that is more weighted towards older scholars, the 120 overall most-cited, yields a disparity that is less striking but still quite substantial: of the 19 women, 2 are listed in the AALS Gay, Lesbian & Bisexual Community Law Teachers list. (According to Laumann et al., 4% of women report some same-sex partners since age 18, which I suspect slightly overstates the fraction who would report themselves as lesbian or bisexual; that 4% of women maps out to 2% of the public generally.)


Monday, July 9, 2007

The Israel Lobby and the Anti-Israel Lobby:

With the Mearsheimer and Walt book "The Israel Lobby" due out next month, I thought I'd preemptively discuss "the anti-Israel Lobby," using a similarly broad definition for the "anti-Israel Lobby" as M & W do for the "Israel Lobby". In the United States, the presumptive anti-Israel lobby includes the 20% or so of Americans who are strongly anti-Semitic, the National Council of Churches, the Middle East Studies Association, the oil industry, many former state department officials who served in Arab countries, businesspeople with close ties to Arab countries, Muslim and Arab-American organizations, major elements of the ideological Left (including NGOs like Human Rights Watch and Amnesty International that falsely claim not to be part of the ideological left), and the Buchananite right.

Looking more broadly worldwide, we have the dozens of Arab and Muslim nations, the 15-30% (depending on what study you look at) or so of Europeans who are strongly anti-Semitic, the foreign services of most European nations (there was a great Yes, Prime Minister episode years ago joking that the British Foreign Office still thinks of Israel as Palestine, and that the true enemy of the British is not the Soviet Union but the French), the far left, including the Hugo Chavezes of the world, the far right, many multinational companies with a great deal of business in the Arab and Muslim world, the large and influential Muslim populations in many European nations, and so on. Plus, supporters of Israel have to deal with the fact that two of the most powerful empires of the 20th century, Nazi Germany and the Soviet Union, fomented both anti-Semitism and anti-Zionism throughout the world as an intrinsic part of their ideology, and that the legacy of both of these nations' propaganda efforts are still manifest. Not to mention the continued salience of traditional Christian and Muslim anti-Semitism.

Overall, the odds are stacked against Israel's allies, even in the U.S.--the anti-Semites alone easily outnumber the pro-Israel Jews and evangelicals (not all evangelicals are pro-Israel--see Jimmy Carter--and some of them are anti-Semitic). In my views, the pro-Israel sentiment nevertheless prevails primarily because Israel has a much better case than does its enemies. The odds are so overwhelming against Israel in much of the rest of the world that it's hardly surprising that the case for Israel to a large extent gets drowned out, especially when the case for Israel as a liberal democracy has relatively little salience in theocracies and autocracies.

The long and the short of it is, first, that if Mearsheimer and Walt fail to explain the scope and nature of the anti-Israel lobby, the book will clearly be a screed, not a serious scholarly work (and it may be regardless, of course). Second, opponents of Israel seem to think that pointing out the purported power of the so-called "Israel Lobby" will somehow shame Israel's friends into shutting up. But if one recognizes the heavy odds facing Israel's friends--what other group trying to influence public policy has to fight such a massive array of determined enemies?--I think it's clear that, as Alan Dershowitz wrote years ago in a broader context, what is really needed is even more chutzpah.

UPDATE: To avoid any inadvertent subtlety, the point is that if no "Israel lobby" existed, American Middle East policy would not be dictated by neutral, nonideological considerations of American national interest, but by the concerns of the "anti-Israel lobby," who have ideological and self-interested reasons to be anti-Israel, just as is in the rest of the world. M & W themselves have made it clear in their "Israel Lobby" paper and elsewhere that they harbor a distaste for Israel quite apart from what they consider to be America's national interest ("Viewed objectively, [Israel's] past and present conduct offers no moral basis for privileging it over the Palestinians.") If Mearsheimer and Walt don't come up with a good reason why friends of Israel should leave the field to the anti-Israel lobby, including M&W themselves, I can't see much of a point to their book.

Adam Cohen on "Conservative Judicial Activism":

In this column, NY Times reporter Adam Cohen attacks the "conservative judicial activism" of the Roberts Court. Unfortunately, Cohen's argument is riddled with flaws and misrepresentations. Here are his main points:

The [conservative] individuals and groups that have been railing against judicial activism should be outraged. They are not, though, because their criticism has always been of “liberal activist judges.” Now we have conservative ones, who use their judicial power on behalf of employers who mistreat their workers, tobacco companies, and whites who do not want to be made to go to school with blacks.

The most basic charge against activist judges has always been that they substitute their own views for those of the elected branches. The court’s conservative majority did just that this term. It blithely overruled Congress, notably by nullifying a key part of the McCain-Feingold campaign finance law, a popular law designed to reduce the role of special-interest money in politics.

It also overturned the policies of federal agencies, which are supposed to be given special deference because of their expertise. In a pay-discrimination case, the majority interpreted the Civil Rights Act of 1964 in a bizarre way that makes it extremely difficult for many victims of discrimination to prevail. The majority did not care that the Equal Employment Opportunity Commission has long interpreted the law in just the opposite way.

The court also eagerly overturned its own precedents. In an antitrust case, it gave corporations more leeway to collude and drive up prices by reversing 96-year-old case law. In its ruling upholding the Partial-Birth Abortion Ban Act, it almost completely reversed its decision from 2000 on a nearly identical law.

Cohen's argument equates conservative criticism of "judicial activism" with criticism of striking down laws enacted by elected officials. That may be Cohen's view, but it is not shared by the vast majority of conservative jurists and legal scholars. For decades, legal conservatives have criticized the Court for failing to strike down what they see as unconstitutional laws, particularly in the areas of federalism, property rights and (more recently) free speech. Most conservative (and even more so libertarian) jurists would agree that failure to strike down unconstitutional laws is no less a departure from the proper judicial role than judicial overruling of laws that the Constitution permits. A few judicial conservatives (such as Robert Bork and University of Texas lawprof Lino Graglia) have called for the virtual abolition of judicial review; so have a few liberals, such as Harvard professor Mark Tushnet, and Stanford's Larry Kramer. But such views are very much in the minority among conservative jurists and legal scholars - almost as much so as among liberals.

Cohen also implies that conservatives contradict themselves by supporting "overturning" of the Court's precedents and invalidation of decisions by federal agencies. Few if any conservative jurists believe that the Court's precedents are somehow sacrosanct, especially not if they conflict with the text and original meaning of the Constitution. That is particularly true of the very recent precedents (McConnell v. FEC, Stenberg v. Carhart, Grutter v. Bollinger) mentioned in Cohen's post, all of which were decided within the last few years by narrow 5-4 majorities. Such precedents have failed to gain general acceptance in the legal community (as their narrow 5-4 margins suggest), and are too recent to have engendered much in the way of reliance by the general public. The degree to which the Court should defer to its own flawed precedents is controversial among conservatives (as it also is among liberals and libertarians). There is no general conservative consensus in favor of following wrong precedents, and indeed most right of center legal scholars tend to the view that flawed precedents should be overruled, or at least severely constricted. The same points apply to flawed decisions by federal agencies. It is also worth noting that the Court did not in fact "overturn" the precedents Cohen discusses, but merely limited the scope of their application. Perhaps Cohen means to say that they have been so severely limited as to virtually overturn them. If so, he needs to provide an argument justifying this far from obvious conclusion instead of a bald and misleading assertion.

Cohen also contradicts himself on these issues. If judicial conservatives are supposed to applaud judicial restraint in overruling laws enacted by legislatures, why shouldn't they support the overruling of precedents that themselves struck down legislative enactments (as was true of Roe v. Wade and Stenberg v. Carhart)? Yet Cohen criticizes conservatives as inconsistent for supporting the Court's partial retreat from Stenberg in Gonzales v. Carhart.

Finally, Cohen commits an egregious factual error in claiming that the Supreme Court conservatives ruled in its school affirmative action decisions that the Constitution "protects society from integration." As Cohen surely knows, the Court merely ruled that the Constitution forbids some types of racial assignment of students. In no way did the justices claim that "integration" is itself unconstitutional - especially if it is achieved by racially neutral policies.

There are plenty of legitimate ways to criticize the Roberts Court conservatives' recent handiwork. I have taken issue with them on some important points myself (.e.g. - here). Cohen's critique, however, fails to rise above poorly substantiated name-calling.

The Federalist Society and All-Male Panels:

Recent criticism of the Federalist Society for hosting some all-male panels and conferences is, as Eugene explains, seriously misguided. As Eugene implies, the main goal for a conference or panel (in addition to quality) should be ideological and viewpoint diversity. Gender, like race and religion, sometimes correlates with ideological orientation and can serve as a crude proxy for it. However, in the case of academic panels and conferences, there is no need to use such a proxy because the views of potential participants can be much more accurately inferred from their previous writings and public statements. For example, I was invited to be on one of the panels at the Bork conference criticized by Eric Muller and Mary Dudziak because, as a libertarian, I strongly disagree with Judge Bork's proposals for government regulation of culture, which were the subject of the panel. The organizers could have relied on the crude proxy that most Russian Jewish immigrants and most atheists are more socially liberal than Bork is. However, they rightly relied instead on my publicly expressed views on the subject, which are a much more accurate indication of my position than my ethnicity, gender, or religious orientation.

A second problem is that it is dangerous to infer an organization's general policies from the composition of one or two individual panels. For example, Professor Dudziak criticizes the Federalist Society for organizing an all-male panel on the Supreme Court's terrorism cases. However, the rival liberal American Constitution Society has also held an all male panel on terrorism jurisprudence. Are they somehow biased against women as well? A more comprehensive analysis of Fed Soc panels would almost certainly reveal that women are represented in rough proportion to their general presence among elite lawyers and legal academics (in both of which groups women are still significantly less than 50% of the relevant population), with probably some additional disparity from the fact that there are proportionately fewer women among conservative and libertarian legal scholars than among liberal and left-wing ones. The latter is partly a function of the fact that women in general are somewhat more liberal than men, and partly a result of the reality that ideological gap between male and female legal academics is considerably greater than in the general public, with female Republicans being the most underrepresented group on law school faculties relative to their proportion of the general population. Although the Federalist Society tries hard to find liberal and left-wing speakers for most of its events, it is logical that conservative and libertarian speakers would be disproportionately represented at events sponsored by what is after all a conservative and libertarian organization.

Finally, Prof. Muller faults the Federalist Society for having a "male President, Senior Vice President, and Executive Vice President." However, Fed Soc Senior Vice President Lee Liberman Otis (one of the founders of the organization) is in fact a woman. The Fed Soc website Muller links to lists not only Otis, but quite a few other women in Fed Soc leadership positions. Many women serve in other prominent Fed Soc roles not listed at that particular site. For example as board members of the Society's practice groups on various issues. It is the practice groups (along with local chapters) that organize most Fed Soc-sponsored events. The Federalism and Separation of Powers Practice Group board has usually had 2-3 female members out of 6 or 7 total during the year that I have been a member of it myself.

Personally, I don't much care how many women are in the Fed Soc leadership (so long as female candidates are considered on the same criteria as men), except in so far as a higher figure might increase the appeal of libertarianism and small government conservatism to women more generally. However, it is wrong to suggest that the Fed Soc somehow excludes women from leadership roles or as panel speakers.

UPDATE: I see that Prof. Muller has acknowledged the error about Otis in an update to his original post. He was, perhaps, misled by her first name ("Lee"), which is more commonly a male name.

Great Posts About the Tonight Show With Johnny Carson: I suspect that readers do not come the Volokh Conspiracy to read about show business topics, but I just happened across this great reminiscence on Powerline by William Katz, a most interesting man who happened to work for a time as a talent coordinator for the Tonight Show during its zenith under Johnny Carson. Reading this, I was reminded that, when I was in college in the summer of 1971, I was in the audience of a Tonight Show taping when Johnny Carson, Ed McMahon and Doc Severinson were all there. I seem to think that there were a remarkable collection of noteworthy guests for that show, which was not always the case, but for some reason the only guest that afternoon (the show was taped in the afternoons) I can now recall was Jack Benny, of whom Katz writes very fondly in the excerpt below. I am a bit wistful that I cannot remember any other specifics of the show, but I do recall that the Tonight Show band was awesome. They played through most of the commercial breaks while Johnny tapped on his desk with a pencil and chatted with the guests. As a viewer, you had no idea how great the band was from the tiny bits you heard after the commercials, though on rare occasions, they get some air time of their own. As Katz writes, the audio on TVs then was too primitive to capture the power of the band. The Tonight Show was never my favorite TV show, though in those days you measured your growth by whether you could stay up late enough to watch it. Still, I really enjoy reading the whole thing here and here (with more posts to follow). Here is an excerpt:
On Johnny Carson: He had natural talent. As I said, he was distant, yet could make you laugh at a staff meeting. Among his gifts was remarkable self-discipline and a clear sense of who he was and what he wanted to do. Carson would tell us that "Tonight" wasn't a talk show, but a variety show. And he was right. Every part of the show had to be strong, not just the chats.

In the middle of the afternoon, no matter what he was doing, Carson would get up and say, "I've got to do the monologue," and return to his office. There he'd select the jokes submitted by his writers, write some of his own, and learn them. When the show went on the air, I would look at "the board," a series of cue cards laid out left to right on a panel placed in front of him for the monologue. All it had on it were key words and phrases. Carson had essentially memorized the jokes. He did this every day. One of the many things I learned from Johnny Carson was the importance of memory in making presentations. Learn the material. Don't depend on a written text.

Carson also taught, "Buy the premise, buy the bit." It's another good lesson, applicable to presidential candidates as well as comedians. If people don't buy the premise of a comedy sketch, or a speech, or an immigration proposal, they'll never buy the rest.

Many in the audience don't know how difficult comedy is. It's the most challenging form of writing. It's far easier to make someone cry than laugh. In working with Carson I was reminded of the comment made by the great English actor Edmund Kean, presumably on his deathbed: "Dying is easy, comedy is hard."

If there was a steady influence on The Tonight Show then, it was Jack Benny. Fred DeCordova had directed some of Jack's shows, and Jack, in many ways, was Johnny's mentor. Jack Benny was an extraordinarily sweet man, who could break you up just by looking at you. Once, when the show was visiting Los Angeles, DeCordova had a staff party and Jack came over. He related, in his style, how he'd just gotten a ticket for an illegal u-turn. He then turned to something he'd discovered — that you could make a phone call to a particular number, and hear sex talk. Of course, Jack was a little boy, so all this came out with a sense of wonder. He had the same devilish personality off-camera as on. At the party, by the way, he rushed around to get chairs for the women.

Jack taught Johnny a fundamental lesson - to be generous with guests, to make them look good. Jack would say, "I don't care who gets the best lines. I just want people to stand around the water cooler the next morning and say, 'Wasn't the Jack Benny Show good last night.'" Johnny adopted that approach. It always worked.

Doc Severinsen is a sweet guy who ran one of the best bands in the business. You could not appreciate the Tonight Show Band through those tinny TV speakers, but in the studio it was spectacular. Just a few weeks ago we lost Tommy Newsom, the saxophonist who led the band in Doc's absence. Johnny used him as a foil because of his bland personality. In truth, he was a highly regarded arranger and instrumentalist.
I am looking forward to future installments.
And Here We Thought That Ideological Diversity Is Good Enough:

The Federalist Society general tries very hard to make sure that panels as its conferences represent many different views, and not just those within the Society itself. There may be some exceptions (the tribute to Judge Bork seems to have had fewer liberal speakers than is the norm for us, though I expect that some libertarian speakers, such as the Conspiracy's own Ilya Somin, expressed views that differed markedly from Judge Bork's). But as a general matter, our panels are about as diverse as you're likely to see in the conferences of any ideologically minded organization.

Eric Muller (Is That Legal?) and Mary Dudziak (Legal History Blog) are unsatisfied by this: They fault the Bork conference, and, in Prof. Muller's case, another panel for having no women. I agree that people who care deeply about the sex of the person speaking should probably go to other organizations' events. (Federalist conferences often include quite a few women, but we don't try to provide any sort of sex balance.) On the other hand, people who don't care about the sex of the speakers but care about the substance — including on whether the substance reflects genuine diversity of views — should find Federalist conferences to be quite interesting.

ACLU of Louisiana:

The recent posts about the picture of Jesus in the Louisiana courthouse, with the inscription "To know peace, obey these laws," has again brought up some of the arguments that the ACLU is anti-Christian or anti-religious.

There is much I disagree with the ACLU about, including about the Establishment Clause. (I've criticized the Executive Director of the ACLU of Louisiana in particular here.) But I should note that the same ACLU of Louisiana sued on behalf of a Christian anti-gay picketer, rightly argued that the First Amendment protected his speech. And of course ACLU chapters in other states have likewise fought for Christians' rights. So one can certainly fault the ACLU's position on church-state, religious freedom, and religious speech issues; but one should do so without incorrectly caricaturing that position.

Use a Spreadsheet, Not a Calculator:

A while back, I switched from using a calculator (the calculator program on Windows, as it happens) to a spreadsheet (Excel). I've been very happy with the results; so has a friend of mine to whom I recommended this. It's probably obvious to most of you, but we didn't do it for many years after we got computers with Excel, so I figure it isn't obvious to some.

The main advantage is accuracy, and security about accuracy: When you're adding a list of numbers using a normal calculator, you can't be sure after the fact that you typed everything right. With a spreadsheet, you can see all the source data right there on your screen, and can check that you entered the right formula just by clicking on the total cell. And if you realize you made a mistake, you can correct the one wrong cell without reentering all the data.

Of course, you can also more easily save the data for the future, copy it into a document or an e-mail, and so on. But even if you know you don't need that, the ability to immediately verify that you've entered all the data right is enough to justify switching to a spreadsheet. And while some features of Excel and other spreadsheets may be quite complex, learning enough just to add a column of numbers is a matter of seconds.

So, again, this might be obvious to some of you (and perhaps useless to a few who don't have a spreadsheet program); but if my and my friend's experience is any guide, it's the sort of obvious thing that many nonetheless overlook for a long time.

Stanley Fish Agrees with Justice Thomas on Student Speech:

Clarence Thomas Is Right, reads the headline to Fish's New York Times op-ed. (Recall that newspapers headlines generally aren't written by the authors of the articles, but here the headline is an accurate summary of Fish's view.) An excerpt:

Although Thomas does not make this point explicitly, it seems clear that his approval of an older notion of the norms that govern student behavior stems from a conviction about how education should and should not proceed. When he tells us that it was traditionally understood that "teachers taught and students listened, teachers commanded and students obeyed," he comes across as someone who shares that understanding.

As do I. If I had a criticism of Thomas, it would be that he does not go far enough. Not only do students not have first amendment rights, they do not have any rights: they don’t have the right to express themselves, or have their opinions considered, or have a voice in the evaluation of their teachers, or have their views of what should happen in the classroom taken into account. (And I intend this as a statement about college students as well as high-school students.)

1. I'm not sure what the right rule for K-12 student speech ought to be, but it seems to me there are very strong arguments for endorsing the constitutionality of the "teacher command" view of schooling, in which students are taught discipline and obedience first and foremost. There are doubtless benefits to providing more freedom for students, but my sense is that there are serious drawbacks to it as well.

Among other things, it may well be that constraint is especially important for students who are already in jeopardy of academic or other problems, or in schools that are already suffering from such problems -- disproportionately schools that educate students who are poor, come from broken families in which less discipline is present, or are surrounded by extra risk of drugs and violence. Eminently well-intentioned egalitarians, including ones who support liberty for adults, might well conclude that constraint for children is the way to achieve more equality (and even liberty) for society more broadly.

I'm not expert enough on the subject to know what works and what doesn't. But the "teaching kids discipline is the key to promoting equality and liberty for adults" approach strikes me as plausible enough that it at least can't be dismissed out of hand, whether by conservatives or liberals. The special role (and history) of K-12 education may well justify leaving the free-student-speech vs. pervasive-constraint decision to schools, and the practical realities may well justify many schools' endorsing the pervasive-constraint perspective. So even liberal fans of Prof. Fish shouldn't see the Fish/Thomas pairing as a particularly odd couple on this score.

2. It's also worth noting that Prof. Fish would apply a similar rule to college students -- a position that, I've argued, is supported by some aspects of Justice Thomas's opinion, though not by others. I take it that if Prof. Fish is serious about his parenthetical, then it would at least apply to the entire range of speech that Justice Thomas is discussing, though at a college level: speech either on campus or off it (even in entirely non-academic activities, see the Old Jack Seaver case that Justice Thomas cites favorably in his opinion), whether the speech is political or not (Justice Thomas, unlike Justices Alito and Kennedy, would allow the limitation of expressly political speech), and whether the speech expressly advocates illegal conduct or not.

Prof. Fish doesn't explain, unfortunately, why exactly such restrictions are necessary and proper. Justice Thomas might endorse them, even at the college level, if he thinks that's what the original meaning of the First and Fourteenth Amendments requires, but I take it that Prof. Fish is not an originalist and thus can't rely on that. And the intuitive arguments about the need for extra discipline and constraint for K-12 students don't easily carry over to college students, who tend to be adults, albeit young adults. Here's the heart of Prof. Fish's argument:

Educational institutions, however, are not democratic contexts (even when the principles of democracy are being taught in them). They are pedagogical contexts and the imperatives that rule them are the imperatives of pedagogy -– the mastery of materials and the acquiring of analytical skills. Those imperatives do not recognize the right of free expression or any other right, except the right to competent instruction, that is, the right to be instructed by well-trained, responsible teachers who know their subjects and stick to them and don’t believe that it is their right to pronounce on anything and everything.

That may well justify very broad teacher authority within the classroom, but it doesn't tell us much about what college student speech should be allowed outside the classroom, especially at events that are pretty far removed from normal pedagogy.

In any case, an interesting op-ed that struck me as worth noting. Thanks to Gerald Wachs for the pointer.

Linda Greenhouse on Using the Courts as An Engine for Liberal Social Change: In yesterday's New York Times Week in Review section, Linda Greenhouse has an article on the barriers liberals face in repopularizing the notion of using the courts to enact "profound social change."

  I was particularly interested in something Greenhouse notes more or less in passing: namely, that there is a relatively clear vision of the Constitution and the role of the courts that is popular among liberal activists and academics. It's not unanimous, as Greenhouse notes — for example, Cass Sunstein isn't on board. But there's actually a pretty wide consensus on a lot of issues, as she notes in this partial list:
It is easy enough to find consensus on a checklist that would include a robust reading of the guarantees of the Bill of Rights, including the notion that some rights are fundamental; a constitutional interpretation not tethered to a search for the framers’ original intent; invigorating the right to privacy to include personal privacy in the electronic age; restoring the shield of habeas corpus; and recapturing the government’s ability to intervene for the benefit of African-Americans and other minority groups without being constrained by the formal and ahistorical neutrality that liberals saw as the conceptual flaw in the chief justice’s opinion a little over a week ago invalidating two voluntary school integration plans.
  By way of contrast, my sense is that there is significantly less uniformity on these issues among activists and academics who are conservatives and libertarians. If you attend a Federalist Society event, for example, you're likely to find a lot of divisions on these and other questions among Federalist Society members. You'll find social conservatives, strong libertarians, various strands of originalists, Lochnerians, legal process Bickelians, Burkean conservatives, judicial minimalists, John Yoo Article II types, and many more shapes and sizes and combinations of the above. (Perhaps the only issue on Greenhouse's list for which there is relative consensus among conservatives is the racial preferences/affirmative action question, and even that is hardly unanimous.) I haven't done a poll on the question, but I do think there is much less of a single "vision" as to the proper role of the courts among conservative and libertarian activists and academics.

  UPDATE: On today's Times op-ed page, Adam Cohen reminds us of his favorite strategy: to condemn conservative decisions striking down legislation as outrageous activism and conservative decisions upholding legislation as abandonment of the judicial function, with as much discussion of Jim Crow and Lochner as will fit in an op-ed space.
My paper on The Conglomerate:

Check out The Conglomerate ("The Glom" for the cool kids), where, as part of their Junior Scholars Workshop, today they're commenting on my paper, Privatization and the Law and Economics of Political Advocacy (forthcoming in the Stanford Law Review).

There are comments up by Tom Ulen, Paul Rubin, and Brian Galle. Comments on the paper and the comments should be posted in the comments section of the main post.

UPDATE: Just to remind you all, here's my abstract:

A common argument against privatization is that private providers will self-interestedly lobby to increase the size of their market. In this Article, I evaluate this argument, using, as a case study, the argument against prison privatization based on the possibility that the private prison industry will distort the criminal law by advocating for incarceration.

I conclude that there is at present no particular reason to credit this argument. Even without privatization, government agents already lobby for changes in substantive law—in the prison context, for example, public corrections officer unions are active advocates of pro-incarceration policy. Against this background, adding the “extra voice” of the private sector will not necessarily increase either the amount of industry-increasing advocacy or its effectiveness. In fact, privatization may well reduce the industry’s political power: Because advocacy is a “public good” for the industry, as the number of independent actors increases, the dominant actor’s advocacy decreases (since it no longer captures the full benefit of its advocacy) and the other actors free-ride off the dominant actor’s contribution. Under some plausible assumptions, therefore, privatization may actually decrease advocacy, and under different plausible assumptions, the net effect of privatization on advocacy is ambiguous.

The argument that privatization distorts policy by encouraging lobbying is thus unconvincing without a fuller explanation of the mechanics of advocacy.

On pro-Jewish anti-Zionism:

I posted a comment to Jonathan's post below that I thought I'd promote to an actual post (with some slight changes). It's about the recurring question whether there's anything anti-Semitic about singling out Israel for criticism when, for anything bad that Israel arguably does, a ton of other countries (China, Sudan, etc.) do it worse.

I claim that singling out Israel in this way not necessarily anti-Semitic. In fact, there are some extremely pro-Jewish (perhaps even too pro-Jewish) reasons for doing so. (Note that, in what follows, I'm making no claim about how many pro-Jewish types there are in the anti-Israel crowd relative to the anti-Semitic types. I'm only arguing that this position is coherent, by way of rebutting the claim that anti-Israel policies are necessarily anti-Semitic.)

First, let's take as given that someone opposes Israel for some reason — for instance because of its policies with respect to the Palestinians, or because of certain preferential policies for Jews (or for certain Jews), or because of its tactics in the war against Lebanon, or what have you. (I'm not interested, for the purposes of this post, in arguing the merits of that position.) And I'll stipulate that this reason applies in spades against many other countries (China, Sudan, whatever).

Note, though, that there are several ways of setting one's priorities. One way is to concentrate one's efforts on the worst cases; on that view, singling out a relatively mild offender would be wrong. But another way — perhaps more in line with economists' thinking — is to concentrate on the most fixable cases. For example, on this blog, we tend to criticize the American government more than other countries — though surely Sudan does worse things than the Libby commutation??? One reason might be that we have no special knowledge of Sudan; another reason might be that we have no special interest in Sudan; and another reason, which is the one I want to focus on, might be that we think we can make a greater difference in America.

On this view, it's actually correct to single out America or Israel for criticism rather than other countries. For instance, one might think that only Israelis are sane, basically rights-respecting, and receptive to basic Western values — so that one can appeal to Israelis' basic principles in arguing that they're acting wrongly. Or one could believe that only Israel — and not Sudan or China — has a healthy enough democratic culture that this sort of treatment will change its policies. In other words, far from being an anti-Semitic policy, the boycott could be an act of deep respect for Israel, essentially saying: "Only you guys aren't savages; we think you might actually listen."

Relatedly, one might hold Israel to a higher standard because they're basically "like us" and "should know better." Unlike the previous rationale, this one may well be dishonorable, because it treats non-Israelis (Sudanese and Chinese) as not being capable of understanding the right thing to do. But if it's dishonorable, again it's dishonorable by virtue of considering Israelis superior. So it's hardly anti-Semitism.

So there are anti-Semitic reasons one might support a boycott. But there are various pro-Semitic reasons, some honorable and some not, along the lines of "you guys aren't savages; we think you guys might listen; and you guys should know better."

UPDATE: Good times in the comments, in which, among other things, I defend looking at people's motives, and also argue that even comparisons of Israel to Nazis, while severely lacking in perspective, aren't necessarily anti-Semitic.

Fencing Out Aliens:

In 2002, the U.S. Army Corps of Engineers, working with other federal agencies, constructed an underwater electric fence across the Chicago Sanitary and Ship Canal to prevent aliens — in this case, Asian carp — from making their way into Lake Michigan. Five years later, it appears to be working, at least for now. The Washington Post reports :

The Corps is planning to replace the original barrier with a new, more powerful one capable of lasting at least 20 years, but that project is in limbo because of funding shortfalls and safety concerns.

Half of the new "fence," known as Barrier 2A, is completed, but it cannot be turned on because sparks have been seen jumping between barges that collided in the electrified area; such sparks could trigger an explosion or injure crew members. The Corps, contractors Smith-Root and the U.S. Coast Guard are trying to figure out how to solve that problem. In the meantime, the Coast Guard has barred barges from mooring or passing in the area of the old barrier.

The two halves of the new barrier would each consist of a 130-foot stretch of electrified steel rods running under the canal, with 220 feet in between each half.

The EPA has more here.

Avineri on "Post-Zionism":

Israeli political scientist Shlomo Avineri reminds us that "post-Zionism" among Israeli leftist academics is, for the most part, just anti-Zionism made more fashionable. The post-Zionists are the intellectual, and in many cases literal, heirs of the small but vocal anti-Zionist far Left that managed to accompany the Zionist movement to Israel. Even at the height of Stalin's persecution of Jews in the early 1950s, there was an active pro-Stalinist Communist movement in Israel. Avineri concludes with some extremely trenchant comments:

Some of those who call themselves "post-Zionists" also come from the former Communist camp. There is something pathetic in that 20 years ago they believed in a new, just world that was to emerge from Moscow or Cuba, and the only thing that is left to them of that lofty vision today is anti-Zionism. Not the brotherhood of nations, not the liberation of the proletariat, not universal social justice - all of this has collapsed in a tragic way; the only thing that remains is the hatred of Zionism.

The anti-Zionist position has accompanied Zionism from the very outset, and it is a legitimate position even if one does not agree with it; it led some of the Communists in the Land of Israel (sorry, Palestine) to justify acts of murder of Jews in Hebron and Jerusalem, committed by Palestinians in 1929, as the authentic expression of a "popular uprising," even if its inspiration was fanatical Islam.

There is nothing new in this moral blindness and these historical distortions, but it is worth remembering: This is not a matter of post-Zionists, but rather of anti-Zionists of the old school. The absurdity is that anti-Zionists of a different breed, the people of the ultra-Orthodox movement Agudat Yisrael, for example, have accepted the historical fact of the existence of the State of Israel. The other anti-Zionists, who are accustomed to calling themselves the people of the world of tomorrow, are still captive in the snares of the past. Indeed there is nothing new under the sun.

UPDATE: Maybe someone has done this already, but if not a book or Ph.D. thesis worth someone's serious attention would be one on the continued influence of Soviet propaganda on the agenda, themes, language, etc., of the anti-Israel far left worldwide.

Will the White House Change Course on Iraq?: The New York Times has an interesting report on this question.

Sunday, July 8, 2007

Byron York on Bush Fatigue in the GOP: In a Washington Post essay on the Bush Administration, Byron York writes that recent events "have left Republicans saying, at least among themselves, something blunt and devastating: It's over."
How Bush Decided on the Libby Commutation: Newsweek's Michael Isikoff has a fascinating report here. UPDATE: For a perspective on how the process worked in another commutation case a few years ago, this post at Legal Ethics Forum is interesting. (Hat tip: Adam Levin)
Sunday Song Lyric: Despite Al Gore's best efforts, it seems that the Live Earth concerts (aka "private jets for climate change") were largely underwhelming. Despite performances by many big name acts, this was not Live Aid for the planet.

Not every band was eager to play the show. Some, like British indie-pop sensations the Arctic Monkeys, found the very idea of a megastar rock concert to combat global warming to be a bit much. "It's a bit patronising for us 21 year olds to try to start to change the world," explained the band's drummer. "Especially when we're using enough power for 10 houses just for (stage) lighting. It'd be a bit hypocritical."

I love the Arctic Monkeys new album, Favourite Worst Nightmare, so this comment is just a good excuse to post one of their lyrics. So here's a taste of "Teddy Picker" off the new album.

Despair to the point till they provoke
The punchline before they have told the joke
The sheer desperation to be seen
Staring at the television screen . . .

She saw it and she grabbed it and it wasn't what it seemed
The kids all dream of making it, whatever that means
Another variation on a theme
A tangle on the television and the magazine
D'you reckon that they do it for a joke?
D'you reckon that they make 'em take an oath?
That says "we are defenders
Of any poseur or professional pretender around"
Here are the full lyrics, and here's a video of the band performing the song live.