For a National Public Radio segment on term limits for Supreme Court justices this week, I was interviewed by Margot Adler of NPR’s Justice Talking. My segment is available online at the website for the show.
The interview focused mostly on mental and physical decrepitude. The staff of Justice Talking did a terrific job of editing the segment, though in response to a question asking about Justice John Paul Stevens they edited out my very positive comments on Justice Stevens, my favorite justice.
For background, one can read my article with Steve Calabresi published in the Harvard Journal of Law & Public Policy: “Term Limits for the Supreme Court: Life Tenure Reconsidered.” After documenting the increase in tenure over time, we argue for 18-year terms on the Court, staggered to allow a new appointment every two years.
The best piece on decrepitude on the Court is by Pultizer Prize winning historian, David J. Garrow in the Fall 2000 University of Chicago Law Review: “Mental Decrepitude on the U.S. Supreme Court: The Historical Case for a 28th Amendment.” Although Garrow’s abstract is here, the full text is available only to those with subscriptions to Westlaw, Lexis, or Heinonline (scroll down to p. 995).
Chen on Supreme Court Clerkships as a Law Professor Credential:
I apparently shocked some people by offhandedly noting in a previous post that USSC clerkships were somewhat overvalued on the teaching market. I could say more about this topic, but I'll leave it to Dean Jim Chen of University of Louisville law school, who is himself a former Supreme Court clerk:
The Supreme Court clerkship remains the most elite credential available to an American lawyer. Law firms are willing to pay substantial bonuses to associates who bring the experience or perhaps just the cachet to work. But to what extent does a Supreme Court clerkship predict success in legal academia?
I strongly suspect that the Supreme Court clerkship, in the mind of a MoneyLaw-minded academic talent scout, has become the law school equivalent of the 270-foot dash that Billy Beane won when he entered the baseball draft. The story is vividly recounted in Michael Lewis's Moneyball.
The 270-foot dash measures raw speed, specifically over the maximum distance that a baseball player is likely to run on an ordinary play. It's nice to be that fast, and speed over 270 feet translates into more triples and more reliable scoring from first base on doubles hit by a player's teammates. On even rarer occasions, speed over 270 feet means scoring from first off a single (in a play most famously associated with Enos Slaughter). The related skill of covering 360 feet with extreme celerity raises the probability, however slightly, of the inside-the-park home run.
But these baseball plays are spectacular precisely because they are rare. As a result, the 270-foot dash measures something that is probably more salient in the mind of the talent scout than it is relevant to the business of trading runs for outs. Billy Beane finished his major league career with more strikeouts than hits (80 to 66) and a woeful OPS of .546. OPS, by the way, stands for On-base percentage Plus Slugging percentage. Baseball traditionalists will more readily understand Billy Beane's lifetime .219 batting average, dangerously close to the Mendoza line and flatly unacceptable for an outfielder. It was no fluke; Billy took the better part of six seasons to compile this wretched record.
If the foregoing is sabermetric gibberish to you, no amount of linking now will help you. Perhaps I shall explain in a future MoneyLaw post. Suffice it for the moment to observed that Billy Beane, first-round bonus baby, winner of the 270-foot dash at his combine, basically ... pardonnez-moi, je cherche le mot juste en français ... sucked.
This is not to suggest that the Supreme Court clerkship should be devalued altogether as an academic credential. Nor would I conclude that the clerkship hangs like an albatross around the neck of a law professor so unfortunate as to have spent a year of her or (more likely) his life working at 1 First Street N.E., Washington, DC 20543. Like any other factor that correlates only weakly, if at all, with ultimate success, the 270-foot dash, the Supreme Court clerkship, the newly fashionable brand name Pee-Aitch-Dee, and other rough guides to future performance are just that: rough guides. For every Billy Beane, there are other first-round draft picks whose careers have resembled that of B.J. Surhoff (overpaid mediocrity), Chipper Jones (marginal Hall of Fame candidate), or Alex Rodriguez (probable Hall-of-Famer, barring injury). So it is in law and law teaching. Predicting 40 years of productivity on the basis of an individual's appeal to a Supreme Court Justice at the age of 27 or 28 is at best a perilous pursuit.
I would simply add that the attributes that get a 28 year-old to the Court are very much correlated with all sorts of professional success, including in academia. But the relevant question is, if you took two candidates with identical c.v.s (law school, class rank, references, publication record, lower-court clerkships, etc.), except that one had landed Supreme Court clerkship, and the other did not, can you predict that the former clerk will be a "better" law professor, on whatever metric one chooses to use? That, as I understand it, is when Chen would argue that the clerkship is a "factor that correlates only weakly, if at all, with ultimate success," yet some hiring committees would give the former clerk a significant advantage.
This turns out to be a tougher question than I at first thought. In considering my own list of seemingly sympathetic fictional villains, it turns out that they all fall into one of four categories that undercut their villain status.
NOTE: This post contains a spoilers for Jane Austen's classic novel Pride and Prejudice, Frank Herbert's Dune, and Oliver Stone's famous 1987 movie Wall Street. Continue at your own risk below the fold.
I. The supposed villain turns out not to be villainous at all.
The classic example is Mr. Darcy in Jane Austen's Pride and Prejudice. He seems to be the bad guy during the first half of the book, but it turns out that the main character got him completely wrong.
II. I sympathize with the villain because I disagree with the story's ideological message.
Sometimes, I sympathize with the villain over the hero because I oppose the message the story is intended to convey. For example, I sympathize with evil financier Gordon Gekko in Oliver Stone's Wall Street as against the neo-Marxist union leader played by Martin Sheen. Gekko's decision to shut down Blue Star Airlines (the main supposedly villainous action he commits in the story) seem to me perfectly justified, and indeed a boon to consumers and the American economy. That, of course, is not the message Oliver Stone intended to convey. Basically, this comes down to my disagreeing with Oliver Stone's anti-market ideology, though I think he's a great filmmaker.
Similarly, I sympathize with the carpetbagger and scalawag bad guys in Margaret Mitchell's Gone With the Wind. That's because I oppose her racist/pro-Confederate ideological message, and sympathize with those who sought to modernize the economy of the South and give southern blacks equal rights under the law (an objective Mitchell explicitly condemns in the book, even though it's only implicit in the 1939 movie).
III. The villain isn't really responsible for his actions.
This, presumably, is one of the reasons for Bryan's sympathy for Gollum in Tolkien's The Lord of the Rings. Arguably, Gollum wasn't responsible for his actions because he was in thrall to the Ring of Power. I dissent from that view, but it's a common one among Tolkien readers.
IV. The villain turns out to be the lesser of two evils.
Sometimes, a villain commits genuine sins and bears full responsibility for them, but I have some residual sympathy for his cause because it's not as bad as the alternative. As I discussed in this post, that's why I tend to sympathize with the Emperor and the Harkonnens in Frank Herbert's Dune. They are evil, repressive, and (in the case of the Baron Harkonnen) depraved. But their tyranny is not as bad as Paul Atreides' Fremen Jihad, which ends up killing billions of innocent people.
However, I can't see myself sympathizing with villains whose actions don't fall into one of the four categories above. Can you?
UPDATE: I think some of the commenters are missing the distinction between villains we can empathize with (in the sense that they have motives that we can understand), and those who we sympathize with. For example, I can understand Lenin's or Hitler's motivations for what they did. That's not the same thing as sympathizing with them.
Brian Leiter, on his blog: (1) Bernstein says, accurately, that Columbia Professor Joseph Massad says there are no homosexuals in the Arab world, though there are men who have same-sex contact. What, I, Leiter KNOW Massad really meant was simply to invoke Foucault's theory of sexuality, because he cites Foucault in two footnotes. [Not mentioned by Leiter, Massad adds that to the extent there are self-identified homosexuals in the Arab world, they are the product of Western cultural imperialism via a conspiracy he calls "Gay International," and they have basically invited Arab governments to persecute them because they are importing foreign ideologies.]
(2) Bernstein says that Marxism is about as scientifically valid as intelligent design, and he's right that most of what Marxists traditionally believed has been discredited. But Marxism is still a valid methodology because it's "amply supported in numerous sociological and historical studies" that "one can explain historical events by attention to how different economic classes pursue their material interests, which lead them into conflict with other economic classes." [You know, that's exactly how I go about my own day: how can I help the upper-middle-class and screw all the other classes today?] Oh, and moral and political ideas are basically just exist to promote and protect class interests. In other words, the crudest sort of Marxist materialist class analysis is still valid, even if all of Marx's other ideas are not.
(3) It's offensive, but not anti-Semitic, for Norman Finkelstein to write that leading American Jewish activists "resemble stereotypes straight out of [Nazi newspaper] Der Sturmer." It's neither offensive nor anti-Semitic for him to write that undifferentiated "American Jewish elites" are imbued with "chauvinistic arrogance, feigned (or imagined) victimhood, and Holocaust-immunity to criticism" resulting in "recklessness and ruthlessness." And it's not at all offensive to say that "coddling them [American Jewish elites] is not the answer. They need to be stopped." Perhaps if Finkelstein were wrong, it would be anti-Semitic, but he's not, American Jewish elites really are that way. And besides, a commenter notes that Finkelstein claims he is highlighting the American Jewish elites' numerous "lethal" flaws as his contribution to the fight against anti-Semitism.
(4) Bernstein says the vast majority of Freud's work is not empirically valid. I, Leiter, have a couple of footnotes in one paper where I cite a defender of Freud who claims that a few of his theses are valid. I won't mention the fact that even accepting this work as sound, that still leaves the vast majority of Freud's work empirically false. [More important, Freud never tried to empirically invalidate his work, and for decades his followers denied that his work should be subject to empirical testing. If Freud turned out to right on some things, well, you know what they say about stopped clocks.]
Back to me [Bernstein]. I'm not going to waste my time rehashing all of Massad's foibles, detailed in many prior posts on this blog, explaining why Finkelstein, who makes misogynistic [stating that a photo of two respected elderly Jewish women may "give you nightmares"] as well as anti-Semitic comments, is a creep, or debating about Marxism and Freudianism. I'll just say that if Leiter and the rest of the far left want to make Massad and Finkelstein their poster children for "scholars" who are "unjustly" attacked, they are welcome to them, just as they are welcome to Ward Churchill. I should note the irony that Leiter, et al.'s concept of academic freedom apparently amounts to "we should be allowed to say whatever we want in however offensive a manner, and not have anyone criticize us, or point out our scholarly and ethical deficiencies to relevant parties." A question for Leiter: if we were to agree that Massad's scholarship is poor, should he be granted tenure because he hates Israel, and expresses such in his scholarship?
And if Leiter wants to keep attacking the "right" for being "anti-science," while defending the idea that major aspects of Marxism and Freudianism are scientifically sound, well, that's his credibility at stake, not mine. And the really funny part is that Leiter apparently exhibits much less of the skepticism regarding Marxism and Freudianism (which historically have been embraced by the "Left") that he famously exhibits regarding evolutionary psychology (which horrifies the far left because it suggests the lack of malleability of human nature).
UPDATE: Post edited slightly for length. And for my response to an equally vapid, and equally unprovoked, attack on me by Leiter (I supposed I should be flattered that he spends so much energy on this, but doesn't he have anything better to do?), see here. And Leiter has added an update that in which he claims that I wrote that he, personally, criticized evolutionary pyschology on the grounds that it suggests the lack of malleability of human nature. The careful (or even not-so-careful) reader of the previous paragraph will see that I never made this claim; I rather claimed that Leiter apparently exhibits less skepticism of theories that his fellow far left-wing ideologues find congenial than of theories that his fellow far left-wing ideologues find problematic for their ideology. That doesn't mean that Leiter's academic critique of evolutionary psychology relies on the ideological reasons that left-wingers find it so bothersome. I'm sure Leiter, who despite his blog persona is a very bright philosopher, understands the distinction.
A weakness in the US News Ranking System for Law Schools:
David's post on the "law porn" sent out by law schools to try to improve their US News rankings highlights a more general problem with the system. A substantial part (25%) of a school's ranking depends on ratings by randomly selected professors at other schools. Another 15% is based on a survey of randomly selected lawyers and judges.
Here's the problem: there are some 190 ABA-accredited law schools in the US. The average professor doesn't know much about what is going on at the vast majority of them. If I spent my time keeping up with the faculty publications, curricula, student quality, and so forth, at the other 190 law schools, I wouldn't have any time left over to do my own research and teaching. Realistically, I only know something about the top 30-40 schools (and even then with far from complete thoroughness), plus a handful of others that I am familiar with for some special reason (e.g. - I went there to do a presentation, and therefore know the faculty). I suspect that the same is true of the lawyers and judges. They too have their own work to do, and therefore can't spend their time keeping track of the doings at dozens of law schools.
This doesn't mean that the surveys are completely useless. Some valuable information can still be gleaned from them, especially if the errors of the ignorant US News voters somehow cancel each other out, leaving those knowledgeable about a given school to actually determine its ranking. However, I suspect that errors are not randomly distributed, and that there are some systematic biases. In particular, the voters are less likely to recognize the quality of schools that have recently improved their faculties and/or student bodies (this hurts George Mason, among others), less likely to give high rankings to schools outside major metro areas on the East and West coasts, and so on. I also suspect that the professors - and even more so the lawyers and judges - are likely to base their evaluations in part on what was true when they were in law school rather than regularly updating their evaluations of schools outside the top 20 or 30.
No doubt, there are also other biases that will affect survey responses in an environment where most of those surveyed are necessarily ignorant about the vast majority of the schools that they rate.
I'm no expert on airport security. But I'm not surprised that the Transportation Security Administration didn't come out looking good in recent studies, as described in Orin's last post. I have had personal experience with their incompetence. Here are two examples.
In 2004, my brother was on an international flight originating in the US, and was trying to get something out of his carry-on luggage. To his surprise, he found a Swiss Army knife in there. He hadn't been trying to sneak the knife on the plane, but had simply forgotten to remove it from his backpack before packing for the trip. Yet the TSA missed it. Obviously, if you can sneak a knife through TSA security without even trying, imagine what a moderately competent terrorist who actually was trying might be able to get on board?
Then there was the time in 2002 when I was waiting in line to have my checked baggage X-rayed by TSA. For some reason, I struck up a conversation with one of the TSA agents there. To my surprise, he launched into a detailed description of exactly what kinds of things their equipment could detect and what kinds it couldn't. I interrupted him to ask whether he was really allowed to reveal this information. He assured me that he was, which leads to the conclusion that TSA either has very lax secrecy rules about its procedures, or hires a substantial number of very stupid agents, or perhaps both.
Now I readily grant that these two cases might be exceptional. I'm sure there are plenty of competent and dedicated TSA personnel. In fact, let's stipulate that 90% of TSA screeners are more competent than the individuals involved in these two cases were. Still, a failure rate this high has to be cause for concern. If hijackings succeed 10% of the time, the terrorists might well take those odds. And if only a minority of TSA agents are lax about revealing their capabilities, it is likely that the information will quickly get to the terrorists.
Moreover, as Orin suggests, the underlying problem may not be merely incompetence by individuals, but the generally poor performance incentives in government bureaucracies. TSA personnel, like most other government bureaucrats, are highly unlikely to be punished or fired for their mistakes. Numerous studies suggest that contracting out to private firms both reduces the price and increases the quality of goods and services relative to direct government provision. As this Reason Foundation study by airport security and privatization expert Robert Poole points out, private provision is the model used for airport security in Israel and Western Europe, where the system is generally better run than in this country. Certainly, I doubt that I could sneak a knife past Israeli screeners without even trying.
UPDATE: I am impressed by the number of commenters with similar stories of accidentally getting weapons through TSA screening, including weapons such as switchblades that are more formidable than a Swiss Army knife. It doesn't say much for the TSA's competence.
Classified Report on Airport Security Leaked to USA Today:USA Today reports:
[A]ccording to a classified report obtained by USA TODAY, . . . [s]creeners at Los Angeles International Airport missed about 75% of simulated explosives and bomb parts that Transportation Security Administration testers hid under their clothes or in carry-on bags at checkpoints, the TSA report shows. At Chicago O'Hare International Airport, screeners missed about 60% of hidden bomb materials that were packed in everyday carry-ons — including toiletry kits, briefcases and CD players. San Francisco International Airport screeners, who work for a private company instead of the TSA, missed about 20% of the bombs, the report shows. . . . The recent TSA report says San Francisco screeners face constant covert tests and are "more suspicious."
USA Today pitches the story as being about the poor security at LAX and O'Hare. I would think the real story is the dramatic gap between the performance of TSA employees and private sector employees: an 80% success rate seems like an enormous improvement over the TSA's pretty dismal 25% and 40% success rates, at least assuming that the tests were the same.
As the chair of George Mason's hiring committee, and therefore a presumptive U.S. News voter, over the last several weeks I've been the recipient of huge amounts of what has come to be known as "law porn"--brochures and other materials meant to inform me about the wonderful qualities of various schools.
Most of it simply goes in the garbage. But I have looked at some of it, and I've made some relevant conclusions about effective and ineffective law porn:
(1) If you're going to brag about something, make sure it's something worth bragging about.
Exhibit A is the fourth-tier law school that sent a brochure of faculty publications over the last decade. I noticed that I had personally published more than this entire faculty. This school did not rise in my estimation.
Exhibit B is the low-ranked school that sent a large placard bragging about the fact that it now has four former Supreme Court clerks on the faculty. The school gets points for originality in design. This 9 X 12 placard is beautifully designed, and, unlike the average law porn, requires no opening to read, so the information is conveyed very efficiently, and can even easily be absorbed on the way to the trash can. Unfortunately, the information that this school has four Supreme Court clerks is likely to make readers think less highly of it. First, what could be more gauche than bragging about how many former Supreme Court clerks are on your faculty? Second, Supreme Court clerks are overvalued in the academic market (though not as much as they used to be). It turns out that I happen to know, or know of, two of this school's former clerks, and they are excellent scholars. But someone less familiar with this school's faculty would be tempted to conclude that this school is hiring clerks just to be able to say it has former clerks. Finally, one of the four trumpeted faculty members is actually a "visiting professor." There is probably more to this story, but the message conveyed from the limited text of this law porn is "we're going to spend a lot of money to tell you how proud we are to have this individual on our faculty, even though we don't think highly enough of this individual to offer him/her a tenure-track position."
Exhibit C are schools, that, assumedly to make their faculty feel better, include everyone in their publication lists, including faculty who haven't published anything outside a bar journal or a new edition of their casebook in a decade, and including faculty who aren't even expected to publish, such as legal writing faculty and librarians. The achievements of the faculty the school should focus its bragging on are lost in the sea of information about the clinicians who just published an op-ed in the local newspaper. Similarly, consider a law school that trumpets its new faculty hires, most of whom are clinical and writing instructors whose backgrounds betray no prior scholarly backgrounds. I'm sure many of these folks are fine clinical and writing instructors, but I'm not going to be especially impressed that Third Tier Law School recently hired three clinicians who attended Second Tier Law Schools and then practiced at Local Law Firms I Never Heard Of while publishing nothing. It's not that there is anything wrong with such hires, as one hardly needs to have attended Harvard and worked at a major international law firms to be a great clinician (and it may actually be a disadvantage) but the implicit message of focusing on these hires in a school's law porn is that the school has nothing better to brag about. To sum up Exhibit C, is your law porn showing how great your law school is, or how egalitarian it is? If the latter, then don't waste your money.
(2) Give stuff, not brochures. I was just thinking about how I needed a new flash drive. The University of Kentucky sent me one, with its school logo, and a file with info about how great the school is. I may never read that file, but I'll keep and use the flash drive, and I'm still more likely to read that file than most law porn. Thanks, UK! If you can't give stuff, at least design the brochure so it stands out, and may actually be read, as with the 9 X 12 placard described above.
(3) Don't send alumni magazines. These are meant for alumni, and they typically focus on things alumni care about, not things that professors at other law schools care about.
(4) Don't address the brochure to "chair, faculty hiring committee" as opposed to actually finding out who the chair is, and addressing it personally. The former address gives away that the mailing is law porn, and is therefore about 200% more likely to wind up in the trash bin, unread.
(5) Don't focus on recent and upcoming endowed guest lectures. Any law school with enough money can get just about any professor to speak on just about any topic. The fact that Richard Epstein, or Akhil Amar, or Bruce Ackerman, swung by last year tells me nothing substantial about your law school. On the other hand, if a law school has a surprisingly vigorous weekly workshop program, do send a brochure about that, because it shows that your school has an ongoing, interesting intellectual climate, not limited to when the famous stars show up once a semester.
UPDATE: Many of the comments start with the premise that "law porn" is actually going to affect U.S. News rankings. The evidence is to the contrary, as the faculty reputation portion of rankings has been remarkably stable, regardless of schools' investment in propaganda. As more schools send out this material, it becomes even less likely that it will affect rankings. Nevertherless, I assume that schools that send it would at least like to create a favorable impression in the minds of recipients, regardless of U.S. News, hence my advice.
Co-Conspiratory Orin suggests in the Comments:
I think UVa Law School does it best. They send out a journal that has excerpts from scholarly articles and detailed profiles of particular faculty members. It's a very interesting read. For example, in the last issue they had profiles of Caleb Nelson and Risa Goluboff. I was familiar with Risa's work but not Caleb's; I had heard excellent things about it but I don't think I ever sat down to read one of his articles. I found the profile fascinating, and it left a very positive impression of the law school.
Some commentors also suggest that a focus on the broad accomplishments of law schools, such as how successful they are in placing graduates, their skills programs, and whatnot, should go into the reputation rankings. Sure they should, but how do you convey this information in a way that both appears objective (and thus persuasive) and also holds the interest of the intended audience sufficiently long that it gets absorbed? No one is going to read through pages of explanations of the curricular innovations underway at 100 different law schools. Relatedly, some commenters point out that what impresses professors may not impress prospective students, alumni, and practitioners, and vice versa. True, but if your audience is professors, it makes sense to send material geared to them, no?
What should a law school that actually wants to improve its U.S. News reputation rank do? The only thing I know that definitely works is to get acquired by a more prominent university (see Michigan State and Penn State law schools), and bask in the reflected glory.
Today, on a 27-21 vote, the House Labor Committee approved the Employment Non-Discrimination Act (ENDA), H.R. 3685, which would ban discrimination in private employment based on "actual or perceived sexual orientation." Many gay-rights groups, including most notably the national gay legal organization Lambda Legal, oppose the bill because it does not include "gender identity," a phrase that would protect transsexuals and other gender nonconformists from discrimination.
In a recent blog post, I criticized the view taken by Lambda Legal that the “weak” ENDA just passed by the Labor Committee – the version excluding “gender identity” – would provide insufficient employment protection to gay people. That critique was shared by lawyers and commentators in the blogosphere (for especially well-reasoned critiques, see Chris Crain's analysis here and John Aravosis' analysis here). Rep. Barney Frank, who introduced H.R. 3685 after he and other House leaders determined on a vote count that a broader bill could not pass, criticized Lambda by name in a lengthy and passionate speech on the floor of the House. I also heard privately from attorneys and supporters associated with Lambda, including experienced gay-rights litigators, who opposed Lambda’s legal critique of a limited ENDA on purported gay-rights grounds.
Lambda has now offered a detailed and substantive response to these critiques. Lambda’s concerns have to be taken seriously, coming as they do from an organization with experienced lawyers and a rich history of doing important work for the legal rights of gay Americans. As I’ll explain below, while Lambda has offered a clearer and more reasonable explanation of its views, its concerns remain exaggerated. The House should not reject H.R. 3685 out of misplaced concern for gay employees.
Some of Lambda’s latest response goes to questions of principle and fairness to transgendered employees not covered by a limited ENDA, to defending itself against charges that its opposition to a limited ENDA is elitist and unresponsive to the needs of millions of gay Americans in 31 states with no statewide employment protection, and to whether the ultimate goal of protecting both gays and transgenders is better served by passing a limited bill immediately or waiting until a more expansive bill can be passed in a future Congress. I don’t have anything to say about those issues here. Instead, I want to address Lambda’s argument that a limited ENDA won’t offer adequate legal protection to many gay people.
Given its institutional role and mission, Lambda’s strong desire for an expansive ENDA including both sexual orientation and gender identity is perfectly understandable. If I were a plaintiff's lawyer or headed an organization of civil-rights legal advocates, I would want as broad a set of civil-rights laws as I could get so that I would have instances of discrimination covered in every possible way, whether based on sexual orientation, gender identity, some combination or overlap of these, or something else. I would especially want the broadest possible coverage in an era when courts do indeed seem increasingly to read the liability and remedial provisions of civil-rights statutes quite narrowly. If the choice were, then, between an ENDA that included both gender identity and sexual orientation and an ENDA that included only sexual orientation, that would be an easy call. But if Barney Frank is right that the votes aren't there right now for a trans-inclusive ENDA, and I certainly don't have the political acumen or inside knowledge of Congress to say that he's wrong, the real choice is between passing out of the House a "gay-only" ENDA or no ENDA.
Given that choice, I think a good litigator or civil-rights advocate would want to maintain the political momentum created by House passage of a gay-only ENDA unless he thought it would do more damage than good or would accomplish so little good that other considerations (of fairness to trans people or justice or something else) would override.
Lambda's Legal Concerns
Lambda’s legal worry is that a limited ENDA might accomplish very little good and might even backfire, eliminating existing protections in federal law. It comes down to a concern that effeminate gay men and masculine lesbians might effectively have no legal protection from discrimination for their gender nonconformity under federal law if a limited ENDA passes. Right now, gender nonconforming gays have better arguments for legal protection than do gender conforming gays under federal law. After a limited ENDA passes, worries Lambda, an employer might successfully argue that it discriminated against the plaintiff based on her gender nonconformity (her being a masculine woman) and not her sexual orientation (her being a lesbian).
I have previously written on this blog that, as a practical and factual matter, it would be rare to see a case in which comments and actions based on a person’s gender nonconformity (“hey man, you walk like a girl”) were not accompanied by comments directed explicitly at a person’s actual or perceived sexual orientation (“hey faggot”). I base this observation on the many reported Title VII cases in which employees were subjected both to anti-gay abuse and to sex stereotypes. The two kinds of discrimination tend to go together, which is why federal courts keen on excluding sexual orientation protection from Title VII have thrown out what would otherwise be perfectly good sex stereotyping cases that involve gay plaintiffs or any whiff of anti-gay discrimination: they think gay plaintiffs are trying to make sexual-orientation claims disguised as sex-stereotyping claims.
If, as I predict, the large run of cases in which an employee suffers sex-stereotyping or gender-nonconformity discrimination are accompanied by direct evidence of anti-gay discrimination then the employee should have a cognizable claim under even a limited ENDA prohibiting only sexual-orientation discrimination. Federal courts that have previously withheld Title VII protections from gay plaintiffs claiming sex stereotyping should also have some of their policy concerns alleviated once gay people are actually protected in federal law under a limited ENDA.
Lambda makes no response to these arguments about the factual patterns in anti-gay discrimination cases or to the possibility that protecting gays from discrimination in federal law might reduce the pressure courts feel to disaggregate sexual orientation from gender nonconformity under Title VII.
In this connection, Lambda has all but abandoned its reliance on Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005), which it originally claimed in an open letter to Rep. Frank was an instance where an employer successfully argued that it fired a lesbian for being too masculine under a state law that prohibited only sexual-orientation discrimination. Neither the facts in the case nor the court’s discussion of the relevant law supported that view, as I discussed at length in my previous post. Lambda now calls that case a "sideshow." I agree.
Having found no reported decisions to support its fears, now Lambda says that we should be unsurprised since there are few reported cases dealing with sexual-orientation statutes. There aren’t a lot of such cases, but we do have experience with state, local, and county laws stretching back some three decades. The fact that inventive employers with high-priced lawyers haven’t successfully defeated even a single claim in a reported decision on grounds suggested by Lambda undercuts the reasonableness of Lambda’s fear that a limited ENDA will be insufficient. The further fact that, as Lambda puts it, many cases do not make it to a stage where there’s a reported decision (either because of settlement, or because the claim is weak, or because a plaintiff’s lawyer won’t take the case, or is inexperienced) neither supports nor undermines the view that a gay-only law doesn’t adequately protect gays. The fact that many cases settle, for example, may simply be evidence that employers are not confident about the success of the contorted we-like-gays-but-not-gender-benders legal theory Lambda hypothesizes. In short, the absence of published evidence for Lambda’s view is not evidence for Lambda’s view.
But let’s assume, contrary to what we should expect as a factual matter based on past decisions, that an employer manages to persuade a court that the real basis for its discrimination was the lesbian’s gender nonconformity rather than her sexual orientation. Such a plaintiff, Lambda hypothesizes, might then be put in a double-bind. (1) On the one hand, she would not have protection for her gender nonconformity under a limited ENDA because it would omit protection for “gender identity,” defined in an earlier version of ENDA (H.R. 2015) to mean “gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual.” (2) On the other hand, Lambda fears that she might not have protection for her gender nonconformity under Title VII because federal courts might abandon the current interpretation of that law, under which “sex stereotyping” is considered a form of prohibited sex discrimination.
Protection for Gender Nonconformity in a Limited ENDA
First, is it true that there will be no protection for gender nonconforming homosexuals under a limited ENDA? Lambda undersells the potential of a limited ENDA for its macho lesbian. Gay people are often associated with certain gender-nonconforming traits. Recall that H.R. 3685 actually prohibits discrimination “because of [an] individual’s actual or perceived sexual orientation.” (emphasis added) Under this language, if the employer “perceives” the employee is a lesbian based on her gender nonconforming behavior or appearance, and discriminates against her for this reason, the employer has violated even the limited ENDA.
A possible problem with this view is that it doesn’t seem to reach the presumably rare case where the employer successfully argues that the perceived lesbianism of the plaintiff had nothing to do with the discrimination; it was her mannishness that got her into trouble. Another potential problem is that, having introduced an expansive ENDA with “gender identity” included before adequately counting votes for the bill in the House, overly optimistic gay- and trans-rights activists have now handed opponents a weak but plausible argument that the elimination of “gender identity” from the bill means there should be no protection for even gender nonconformity associated with homosexual orientation under the limited ENDA. There will be a debate about all of this in litigation and I expect that Lambda, having argued now that a limited ENDA is inadequate, will argue after it passes that it does cover discrimination against homosexuals arising from their gender nonconformity. Whether and to what extent gender-nonconforming gay plaintiffs might be successful with these claims we can’t know.
Protection for Gender Nonconformity in Title VII
More importantly for our purposes, how reasonable is the second fear, that there might be no protection for gender nonconformity under Title VII if a limited ENDA passes? Lambda worries that increasingly conservative courts “profoundly unsympathetic toward plaintiffs in employment discrimination cases generally” and hostile to gay-rights litigants in particular, might latch on to the elimination of “gender identity” from ENDA as evidence that Congress intended to eliminate protection from gender-nonconformity discrimination under Title VII. Lambda cites, as examples of courts’ hostility to civil-rights plaintiffs, cases involving race and other forms of discrimination in which Lambda believes the courts took unduly restricted views of civil-rights laws.
Lambda exaggerates the aggressiveness of conservative federal courts. These same courts have, for example, now interpreted Title VII to prohibit same-sex sexual harassment. Oncale v. Sundowners Offshore Services, Inc., 523 U.S. 75 (1998). Of course, if you really believe that conservative judges are incapable of reaching principled (as opposed to result-oriented) decisions, and will throw out every rule of statutory construction and precedent to reach a preferred policy result, then you must despair that the addition of any words to ENDA will save you from their evil grip.
To assess whether this fear of wild and aggressive conservative courts is very plausible in the specific context of a gender-nonconformity claim under Title VII, recall that the Supreme Court declared in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), that sex stereotyping is a form of sex discrimination. While there was disagreement on the Court in that case over issues like causation and burden-shifting, there was no disagreement on the basic principle that sex stereotyping is impermissible. That Court included current Justices Scalia and Kennedy. The Supreme Court has never withdrawn, overruled, or even limited its understanding, despite changes in the Court’s personnel. Although Lambda ominously warns that the Supreme Court "could change its mind" and reverse Price Waterhouse, no justice on the Court since that case has questioned the basic principle it established about sex stereotyping.
The sex-stereotyping theory of Price Waterhouse has been followed by every circuit court to consider the issue, even the more conservative courts. Moreover, while the facts of Price Waterhouse involved a woman deemed too “macho” for a job, the same gender-nonconformity protection has been extended to effeminate men in cases like Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864 (9th Cir.2001).
As its only example of right-wing judges undermining sex-stereotyping claims, Lambda says that Judge Richard Posner “disagreed” with Price Waterhouse in a concurring opinion in Hamm v. Weyauwega Milk Product, Inc., 332 F.3d 1058, 1067-68 (7th Cir. 2003) (Posner concurring). That’s an oversimplification. Actually, Posner supported the idea that discrimination for gender nonconformity may be evidence of sex discrimination in a case where both men and women are eligible for a job. But he was critical of the artificial distinction between homosexual plaintiffs and heterosexual plaintiffs claiming gender nonconformity discrimination that has arisen in the federal courts since Price Waterhouse. I assume Lambda also bemoans this distinction.
ENDA Does Not Limit or Amend Title VII
Do we have any good reason to believe that even conservative judges will be bold enough to hold that Congress has silently or impliedly overruled Price Waterhouse by passing ENDA without “gender identity” protection? There are several reasons to believe this concern is very far-fetched.
Start with the pedestrian point that ENDA is not an amendment of Title VII, so there’s no obvious reason ENDA should have a dramatic effect on it. Nothing in ENDA states that it is overruling part of Title VII. Nothing in the legislative history will say that Congress passed this expansion of civil rights law as a way to limit civil rights under Title VII.
In fact, the decisive response to Lambda’s fear about the effect on Title VII is contained in ENDA’s Section 15, entitled “Relationship to Other Laws”:
This Act shall not invalidate or limit the rights, remedies, or procedures available to an individual claiming discrimination prohibited under any other Federal law or regulation or regulation of a state or political subdivision of a state.
Any argument that Congress silently overruled part of Title VII in ENDA would be an argument that it “limit[s] the right [to be free of sex stereotyping] . . . available to an individual claiming discrimination prohibited under [Title VII].” That argument would fail under Section 15. Lambda does not even mention this section of ENDA in its analysis.
Second, when Congress wants to overrule federal court rulings it is quite capable of doing so explicitly. It did so when it overruled restrictive federal court decisions in 1991 amendments to the Civil Rights Act of 1964. It did so again recently when the House voted to overrule the Court’s recent Title VII statute of limitations decision. Congress does not have to resort to subterfuge to overrule the Court and it would be surprising to have a court find that it uncharacteristically did so by merely excluding a phrase from ENDA.
Third, consider how some basic principles of statutory construction would apply in a post-ENDA world. It would not be unusual for a court to claim that the failure to include something in Statute A (e.g., Title VII) should influence how we interpret Statute A (Title VII). It would be very unusual to suggest that (1) simple failure to include a phrase ("gender identity") (2) in the passage of Statute B (a limited ENDA) should be interpreted (3) to impliedly overrule two decades of consistent federal court interpretation (sex stereotyping) (4) under Statute A (Title VII). There is no precedent I have seen for that extremely dubious style of statutory interpretation. That is why Lambda, long a respected voice for its legal acumen and honesty, is on such thin ice.
It would also not be unusual for a court to consider the words used in one statute in its interpretation of words used in another statute involving the same subject matter in an effort to harmonize the public policy objectives embodied in the laws. But that, too, would not be a principle at issue here. There is no disharmony in having a Title VII that protects gender nonconformity and an ENDA that protects sexual orientation. They are complementary.
Besides, there are many other and more plausible understandings about why Congress took “gender identity” out of ENDA. The correct one would be simply that there weren’t enough votes to include it and hence that Congress wasn’t doing anything substantive by striking it from the bill. Another interpretation would be that Congress thought most of what would be protected by the definition of “gender identity” was already protected under Title VII (excepting transsexuality). Indeed, gender nonconformity is in some ways more generously protected under existing Title VII case law than it would be under an expanded ENDA, given the broad exemptions for “religious organizations” and other limitations on the scope of liability contained in both versions of ENDA.
A Hypothetical Gay Plaintiff's Options Under a Limited ENDA
Finally, Lambda posits that a plaintiff might be caught between the gender- nonconformity "rock" of a limited ENDA and the sexual-orientation "hard place" of Title VII. “Thus,” Lambda concludes, “a non-inclusive version of ENDA risks having a court decide that an employee cannot pursue a claim for sexual orientation discrimination because it concludes that what was going on was discrimination based on gender nonconformity, but then not allow a Title VII claim by reading the Price Waterhouse case overly narrowly.”
Contrary to Lambda’s assertion, it is the defendant employer that’s placed between the rock of the gay protections of a limited ENDA and the hard place of the gender-nonconformity protection of Title VII.
To see why, imagine you have a butch lesbian fired by a school in which she works. She argues that the school fired her either for her sexual orientation or her gender nonconformity or for some combination of these.
On the one hand, if the school fired her for being a lesbian she has a claim under the newly passed, gay-only ENDA. Her lawyers would point to the times she was called a "dyke" and was told to find a man to make her a real woman. Her lawyers would observe that the fact that the school employs other lesbians is no more a defense to the claim than the fact that an employer hires some black people is a defense to a claim of race discrimination. On the other hand, if the employer tries to weasel its way out of ENDA liability by saying that it fired her for being too butch, her lawyers would say that it was then liable for sex stereotyping under Title VII.
Therefore, if the employer tries to get out of Title VII liability by saying she’s a lesbian claiming sexual-orientation discrimination, it has walked right into ENDA. If it tries to get out of ENDA liability by saying she’s a gender bender claiming sex stereotyping, it has walked right into Title VII. Depending on the facts, if the employer's motives include hostility both to gender nonconformity and to sexual orientation the plaintiff can still say the discrimination was "because of" actual or perceived sexual orientation. Any way you slice it, the employer is stuck.
And if the employer, citing Lambda's letter to Barney Frank and its recent elaboration of the same concerns, tries to make the argument that Congress silently repealed two decades' worth of Title VII precedent on sex stereotyping by enacting an entirely separate federal law, her lawyers would make the excellent argument that this was not even a plausible interpretation of ENDA’s effect.
Since gender nonconformity already enjoys a large measure of protection under settled Title VII precedents, what's really at stake in the debate over whether to include "gender identity" in ENDA is protecting transsexuals from discrimination based on their transsexuality. This is a very small group of people and, short of being protected from discrimination in a larger bill like ENDA, they are not likely to get federal legislation protecting their employment interests unless a concerted effort is made on their behalf by political allies. That work has evidently not yet been done in sufficient measure by the groups who now oppose a limited ENDA out of solidarity with transsexuals.
The upshot is that it seems Lambda and many other gay organizations really oppose ENDA because they think it is simply wrong to exclude protection for transsexuality from a gay civil-rights law, even if that means waiting a significant additional time to pass any protection at all. I don’t share the view that protection for gays must await protection for transsexuals, but I understand and respect it. The appeal to gays’ legal self-interest, by contrast, is a diversion from the real issue.
UPDATE: Jon Davidson, Lambda's Legal Director, replies to me in the comments here. Chris Crain comments and gets to the heart of the issue here.
I just came across this essay by Richard Epstein on the Stoneridge case. The whole thing is interesting, but here's an extended excerpt:
Yet, normatively speaking, why should secondary violators be able to escape private damage suits like those brought against primary wrongdoers? One way to end the discrepancy is to deny all private damage actions against primary offenders, which is not as farfetched as it sounds.
The key vice of these private suits is to overdeter wrongful conduct. For example, the class that sued Charter let all unfortunate buyers at inflated prices recover for their market losses. But it does not require the lucky sellers of overpriced stock to disgorge the fortuitous profits from selling overpriced stock. The net damage recovery from this temporary imbalance in the markets far exceeds the social losses from the underlying chicanery. Across the board, harsh penalties for nondisclosure now induce firms to remain silent lest they incur huge liabilities for modest misstatements. Administrative remedies can be better calibrated to the severity of the underlying wrong.
Even if a damage suit against primary wrongdoers makes sense, the second round of suits is overkill. Allow this suit against Scientific-Atlanta and Motorola, and then no iron barrier protects any vendors from charges of "knowingly" engaging in fraudulent transactions with hundreds of potential buyers who thereafter mischaracterize these deals in their own financial accounting. Just what fraction of the total loss is attributable to their actions as opposed to other financial gimmicks? And should secondary actors be held liable for all losses if it is hard to isolate a distinct fraction for which they are responsible? The current law of joint and several liability suggests that no apportionment will be made unless it can be made.
Imposing crushing litigation burdens on second-tier defendants who receive no direct benefit from the public fraud is a heavy-handed way to improve transparency of securities markets. The expanded liability has two vices: First, it chews up huge social losses in litigation costs that detract key executives from their major jobs. Second, it leads to erroneous findings on liability rates of error whereby some innocent defendants pay large sums while some guilty parties go free. No system that costly and erratic supplies effective deterrence against fraud.
In this recording, Hutcherson is joined by three very familiar players that Miles Davis had first brought together in 1963: Herbie Hancock on piano, Ron Carter on bass, and the late-great Tony Williams on drums. Hutcherson had played with each of them many times before, including on a number of '60s era Blue Notes. The tune is one of Hutcherson's best known compositions; it was named after his son Barry ("Little B"). Hutcherson explains in the liner notes to his 1965 Components album that the melodic line reminded him of how Barry had played as a toddler.
Here's the clip:
Some listeners may find Hutcherson's playing to be too fast; at first it may sound like a blizzard of notes that are simply too densely packed to put together. I recommend listening a few more times; after a while your brain will catch up to Hutcherson's speed and you'll begin to see it. Of course, actual mileage may vary.
HITLER'S LEGACY: ISLAMIC ANTI-SEMITISM IN THE MIDDLE EAST:
A transcript of a very informative lecture by Matthias Kuentzel. A short synopsis can't do the lecture justice, but the basic point is that while there was always anti-Jewish sentiment in the Muslim world, it also was based on the notion of Jews as an inferior group that Mohammed had defeated militarily. Anti-Semitic visions of powerful Jews being behind the world's problesm, and plotting to control the world, found most prominently in the Hamas charter, entered the Muslim world via the Muslim Brotherhood, who in turn took those ideas from the Nazis, which spent significant effort and money propagating them in the Middle East. This all started well before the creation of the State of Israel, belying the notion that the Israel-Palestinian conflict caused modern Muslim anti-Semitism. Thanks to Scholars for Peace in the Middle East for the pointer.
UPDATE: Commenters are missing the point. Islamists hate the Spanish for ruling Spain, hate the Christian minority in Arab countries, hate the Hindus who (re)conquered India from the Muslims, hate the Bahais, the Druze, and, if they're Sunni, Shiites, and so forth. And Jews were always second-class citizens in Muslim countries, though precise treatment varied from era to era, and from country to country. But there is nothing in Islam or Islamic history to explain the virulent, Protocols-style "the Jews are out to dominate the world" style of anti-Semitism that is currently prevalent in the Islamic world, unless you go to Western influences, primarily Naziism (though Soviet propaganda, not mentioned by Kuentzel, didn't help).
Nor can this be explained as a mere outgrowth of Arab nationalism regarding Zionism. Arabs aren't too fond of other ethnic groups with which they have or have had territorial conflicts, including Kurds, Africans, Persians, Europeans, and so forth. But you don't see the kind of nonsense you find in the Hamas charter directed at such groups.
One thing that I don't think Kuentzel says directly, but I think logically follows from his lecture, is that the Muslim Brotherhood not only picked up certain anti-Semitic ideas from the Nazis, but its leaders also learned from the Nazis the effectiveness of using anti-Semitism as a political tool to rally the masses and promote their form of nationalism.
That's not to say that the Arab-Israeli conflict doesn't foment anti-Semitism in the Arab world. But to acknowledge that doesn't detract from a complementary point, which is that the Arab-Israeli conflict would be less severe but for the widespread notion in the Arab/Muslim world that that conflict isn't about "Palestine," per se, but about resistance from Arabs and Muslims to a Jewish-Zionist plot to take over the entire Middle East, and ultimately dominate the world.
Excerpts from the Mukasey Confirmation Hearing:
Today Michael Mukasey is testifying before the Senate Judiciary Committee as part of his confirmation hearing as Attorney General. Here is Mukasey on the role of politics in the day-to-day working of the Justice Department:
Next, here is Mukasey on the 2002 "torture" memos:
Increasing Competition in the Real Estate Industry:
One of the things we pushed for during my time at the FTC was increased competition in the home real estate industry. This covered areas such as overly-expansive definitions of the unlicensed practice of law, regulations that tried to expand the closing services that required an attorney, and efforts by traditional real estate agents to try to foreclose competition from discount brokers.
The DOJ has set up a new website that describes all of the anticompetitive legislative and regulatory barriers in the residential real estate market that raise the price of real estate services and reduce consumer choice. There is lots of informative and good stuff there. My FTC colleague Luke Froeb has more.
One area in which we regrettably fell short was for reform of closing costs by permitting "bundling" of all closing costs into a binding estimate for all the costs, soup to nuts. This would have permitted to consumers to shop for all costs at one as a package, rather than the current required HUD-1 process where all the costs are itemized instead. One story that describes the HUD proposal and its demise is here.
Title companies appeared a century ago, helping to protect home buyers from being swindled by crooks who sold properties they didn't own. A title insurance policy protects the buyer in case the deed turns out to be defective but the seller cannot be collared to refund the purchase price. It is far less necessary in these days of computerized records, online searches and rare instances of title fraud or hidden liens.
First American has doubled its prices in a decade, to an average charge of $1,472 per home for a title search and insurance. Meanwhile, thanks to computerized record-keeping, the cost of searching for a home's ownership records online has fallen to as low as $25. Technology also has helped make mistakes rarer; now only $74 of each policy goes to pay claims--that is, make home buyers with defective deeds whole. That leaves a $1,373 spread for overhead and for profit.
Fancy this: racetracks that keep 93% of your money and return only 5% in winning tickets. They wouldn't last long, not unless they could somehow rig the rules to both forbid price competition and make the purchase of race bets mandatory. That's more or less what the title insurance industry has done to American homeowners.
But the title industry's halcyon days owe much to antiquated state laws that thwart new competition, allow prices to soar despite declining costs and force almost every home buyer to pay for insurance that most of them will never need. In all but a handful of states, laws bar insurance giants in other fields, such as AIG or State Farm, from offering title insurance and undercutting incumbents' prices. It also is illegal for anyone to offer guarantees that provide the same protection as title insurance.
Most states responded by passing laws dictating that only dedicated title insurers could sell home buyers title policies. Decades later many of the banned multi-line insurers are far more financially secure than most title insurers in the eyes of credit-rating agencies, but the states haven't done much to raze the barriers....
Having insulated themselves from outside rivals, the title companies then won state support to limit competition among themselves. A small number of states passed laws fixing prices of title insurance. Other states enacted a pastiche of rate regulations that let insurers set their own rates, routinely granting them increases.
Spared from having to compete on price, title firms large and small vied for customer referrals from real estate agents, mortgage brokers and builders by bribing them, in violation of federal law. The insurance agents who woo the customers are also compensated handsomely. Of the cash First American collects for title searches and accompanying insurance, it hands 80% to its own agents and to independents.
Although it would be better to simply permit open competition in this market and to permit packaging of closing costs, at least some competition is better than none. So this innovation in California to permit on-line comparison of title insurance price quotes seems like a major step in the right direction. It is a website where consumers can shop and compare quotes for title insurance. Let's hope the idea spreads.
Senator Shelby, who is quoted in the news article above, was a leading opponent of the HUD proposal, owns a title insurance company in Alabama. The title insurance industry opposed the HUD proposal because they were afraid that its adoption would lead to stronger competition and, egads, reduce their economic rents. In the Forbes article linked above, a spokesman for Senator Shelby insists that his attitude toward the HUD proposal was unaffected by his stake in the title insurance company.
Kirchick on Massad and "No Homosexuals in Arab Countries":
A couple of weeks ago, I blogged about Columbia professor Joseph Massad's bizarre views about the purported efforts of what he calls "Gay International" to "produce homosexuals, as well as gays and lesbians, where they do not exist," and his apparent sympathy for Arab governments who respond by persecuting gays. James Kirchik has a more detailed analysis in the latest TNR.
A Scranton, Pennsylvania, woman who allegedly shouted profanities at her overflowing toilet within earshot of a neighbor was cited for disorderly conduct, authorities said. Dawn Herb could face up to 90 days in jail and a fine of up to $300. "It doesn't make any sense. I was in my house. It's not like I was outside or drunk," Herb told The Times-Tribune of Scranton. "The toilet was overflowing and leaking down into the kitchen and I was yelling [for my daughter] to get the mop." Herb doesn't recall exactly what she said, but she admitted letting more than a few choice words fly near an open bathroom window Thursday night. Her next-door neighbor, a city police officer who was off-duty at the time, asked her to keep it down, police said. When she continued, the officer called police.
So you're wondering, is that really a crime? The answer is 'no, it's not.' Civil libertarians and those with bad bathroom plumbing, rejoice: In Pennsylvania, you can scream at your overflowing john all you want without violating the state's disorderly conduct offense. Here's the text of 18 Pa.C.S. § 5503(a), Pennsylvania's prohibition on disorderly conduct:
A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
(1) engages in fighting or threatening, or in violent or tumultuous behavior;
(2) makes unreasonable noise;
(3) uses obscene language, or makes an obscene gesture; or
(4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.
Let's assume that Herb's yelling amounted to "unreasonable noise" or "obscene language." The statute only prohibits such yelling "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof." Did Herb do that? It seems pretty clear she didn't. The word "public" is defined in § 5503(c):
As used in this section the word "public" means affecting or likely to affect persons in a place to which the public or a substantial group has access; among the places included are highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, any neighborhood, or any premises which are open to the public.
The definition is rather oddly drafted; "neighborhoods" and "apartment houses" have both public and private spaces within them. But Pennsylvania caselaw is clear that the annoyance or incovenience must be that of the general public, not just one or two specific people who happen to be nearby. The Pennsylvania Supreme Court stressed this in an early case involving a man who operated a "go kart" track, Commonwealth v. Greene, 410 Pa. 111 (1963). Use of the track to race go-karts made a lot of noise that apparently annoyed the neighbors, and the operator of the track was then charged with and convicted of disorderly conduct. The Pennsylvania Supreme Court reversed in an opinion by the always-colorful Justice Musmanno:
The cardinal feature of the crime of disorderly conduct is public unruliness which can or does lead to tumult and disorder. Engaging in clamor and outcry in the public streets in a manner which arouses attention and causes people to draw together, whereby the highway may be obstructed, is the classic example of disorderly conduct. . . While noise may break tranquility, upset rest, destroy sleep and fracture serenity, it does not of itself break the public peace, an indispensable feature of the crime of disorderly conduct, when the traveling public is not disturbed. If the production of noise alone made out the crime of disorderly conduct, then the coffers of the Commonwealth and municipalities entitled to monetary returns could be filled with fines assessed and collected from cheering football and baseball fans, riveting hammer operators, gong-clanging street car motormen, airplane pilots, siren-sounding ambulance drivers, missile testers, amusement park devotees, bathroom soloists, fife and drum players, trombone zealots, fireworks enthusiasts, etc. . . . The crime of disorderly conduct is not intended as a catchall for every act which annoys or disturbs people; it is not to be used as a dragnet for all the irritations which breed in the ferment of a community.
Given the plain language of the statute and the Greene decision, I think it's pretty clear that Herb isn't guilty of disorderly conduct. Herb and her daughter were at home, and it sounds like the neighbor was the only one else around. Annoying your neighbor by being really noisy may be inconsiderate. But it's not the crime of disorderly conduct, even if your annoyed neighbor happens to be a police officer. Free Dawn Herb!
This raises the more general issue of why genocide should be considered worse than the deliberate murder of a similar number of innocent people for other reasons. As I see it, the evil in 1994 Rwanda and 1915 Turkey was that hundreds of thousands of people were slaughtered without any justification. That they were slaughtered because of their ethnicity rather than for some other reason does not make things worse than they would be otherwise. Yes, it is wrong to kill an innocent person because they are Tutsi or Armenian or Jewish. But why is it somehow less wrong to kill her for being a moderately affluent peasant "kulak" (as in Stalin's mass murders during the 1930s), a member of the wrong social class (as in Pol Pot's mass murders in Cambodia), or a political opponent of the government (many examples throughout history)?
Sometimes, it is argued that genocide is worse than other types of mass murder because it deprives the world of valuable cultural diversity, not just of the contributions of particular individuals. That may well be a real harm of genocide. But other types of mass murders also destroy diversity and other cultural resources. For example, Pol Pot's decimation of Cambodia's educated classes surely did severe damage to Cambodia's culture. Stalin's extermination of Russians active in political movements other than his own certainly undermined valuable diversity in that country, and so on.
Whether genocide causes more cultural damage than other types of mass murder will vary from case to case.
Thus, I am left with the question: Is there any good reason to distinguish genocide from other forms of deliberate mass murder of innocent people? If not, then I suggest that both domestic and international law should eliminate the crime of genocide and replace it with a more general crime of mass murder, applicable in all cases where large numbers of innocent people (one can legitimately debate how large they have to be) are deliberately killed for unjustifiable reasons. Among other advantages, this proposal would enable us to avoid unedifying debates over whether obvious instances of mass murder - including those in Rwanda and Sudan - count as "genocide" or not. More importantly, it would eliminate the excuse for inaction created by claims that a particular instance of mass murder doesn't qualify as genocide.
UPDATE: I should note another problem with the cultural damage rationale for considering genocide to be worse than other kinds of mass murder. In some genocides, there is no chance that the killers will succeed in eradicating the entire ethnic group in question, or even a large fraction of it. Thus, there is no danger that that group's cultural contribution to humanity will be completely wiped out. For example, in addition to his non-genocidal murder of hundreds of thousands of his fellow Khmers, Pol Pot also targeted Cambodia's Chinese minority for extermination. There was never any chance that this would result in the destruction of the Chinese contribution to world culture, since there are hundreds of millions of Chinese outside of Cambodia. Yet it was clearly genocide under the current international law definition thereof, which defines the term to include all killings "committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such" (emphasis added).
As reported in Colorado media, some mayors have endorsed a climate change plan whose recommendations include: "strict CO2 emissions-reducing standards for cars, a move which would boost new car prices by about $900 but save $1.88 billion in reduced fuel costs, according to the Rocky Mountain Climate Organization." I was not able to find information about the automobile emissions plan on the RMCO's website, but perhaps I didn't look in the right place. In any case, do any readers know where the above data come from? For what period of time (annual?) and group of people (U.S.? Colorado?) the 1.88 billion savings figure is calculated?
I eagerly await information in the comments, but please don't use the comments to argue the pro/con over the general issue of global warming.
In today's National Review Online, Paul Gallant, Joanne Eisen, and I examine one aspect of the 1915 Armenian genocide. We show that the Ottoman tried to disarm the Armenians before the genocides began. And we provide examples of how, to the extent that the Armenians retained their arms, thousands of innocent lives were saved.
This essay offers case studies of three emergency statutes, all dealing with terrorism and all enacted within less than a year after a major terrorist attack: the September 14, 2001 Authorization to Use Military Force; the USA PATRIOT Act; and the U.K. Terrorism Act 2006. A standard worry about such cases is that the circumstances of emergency lawmaking produce blank-check delegations to the executive. The fog of uncertainty, emotions such as urgency and visceral fear, and the tendency of legislators and the public to rally 'round the flag, all cause legislators to vote the executive massive new powers, regardless of whether those powers are rationally justifiable. This view is descriptively and theoretically flawed. Descriptively, executives in all three episodes lost control of the political dynamics, faced bipartisan resistance or rebellion in the legislature, and ended up obtaining far less than they asked for or desired. Theoretically, emergency conditions have cross-cutting political effects on legislators. The mechanisms and forces operative during emergency lawmaking cut both ways, constraining as well as empowering the executive, with unpredictable net results in particular cases. Although executives usually receive new powers in emergencies, there is no reason to think that they systematically tend to receive more new authority than a rational legislature would provide.
I think that's plausible, and it seems correct to me in the case of the Patriot Act in particular.
There's also a second-order dynamic here. Emergency legislation creates fear of overreaching that often leads to later legislation tempering the more controversial aspects of the emergency legislation. For example, the Patriot Act renewal legislation in 2006 added privacy protections to counter fears of certain provisions of the Patriot Act. And right now, Congress is considering legislation adding protections to counter fears of certain provisions enacted by the Protect America Act of 2007 (the FISA legislation pass a few months ago).
The New York Times has posted the latest data on contributions to Presidential campaigns here. Among other ways of slicing up this information, you can click on a candidate's name and see a map showing the size of contributions from different cities/states that each has received through the third quarter.
For almost all the candidates, the giving is quite lumpy. The east and west coasts give more money (not surprising, as more wealth is there), and particular candidates have giving hotspots. Romney has raised a ton of money in Utah (more than he has raised in Massachusetts), Thompson has raised more than a quarter of his funds from people in Tennesee, Obama is strong in Illinois, etc.
The notable exception to this lumpiness is (drum roll, please) Ron Paul. His campaign contributions are spread out quite evenly (he's done better in Texas than elsewhere, which is not surprising, but his Texas total is only three times his haul from the state of Washington and a bit smaller than funds from California). And his receipts come from all over. Indeed, and perhaps unsurprisingly, he does better in smaller states, which may have a higher percentag of people who lean libertarian. He has received more money from North Dakota, for example, than either Romney or Giuliani. You can decide for yourself whether this means we should consider him to be the only candidate with a true 50-state appeal, or the candidate for people in sparsely populated and over-represented (in the Senate) states.
David Currie Reads the Constitution:
Via the University of Chicago Law Faculty blog, I learn that the Chicago website has posted an MP3 file recorded in 2006 of the late Professor David Currie reading the U.S. Constitution (link to the hosting page rather than the file). It's a big file, but a download is well worth it: Currie has a marvelous voice, and hearing the Constitution read aloud gives you a particularly keen sense of the structure and internal consistency of the document. Super cool.
Has reading a blog or blogs -- not necessarily this one, of course -- changed your life in a material way? Has it led you to change professions, go to a particular school, or study some field rather than another? Has it led you, directly or indirectly, to meet your new spouse? Has it led you to lose your old spouse?
If so, tell us your story, whether including identifying details or omitting them. Note that I'm looking for whether reading blogs has changed your life, not whether writing your own blog has changed your life.
Here's an interesting article by neoconservative Joshua Muravchik on the future of neonconservatism. As always with Muravchik, it is well-written and provocative. Unfortunately, the article also suggests that Muravchik, and perhaps his editors at Commentary, have learned nothing from the Iraq War.
Muravchik states and tries to refute several critiques of neoconservative ideology, but does not even manage to acknowledge the existence of what I think is the most persuasive critique: that the U.S. government, like all governments, tends to be short-sighted, incompetent, and corrupt. Therefore, charging it with Herculean tasks like spreading democracy to countries with no democratic tradition, and with little in common culturally, linguistically, or otherwise with Americans, is presumptively a foolish idea. The best that can be said for argument that can be made on behalf of neoconservative ideology is that as foolish as this idea seems, the alternative provided by its critics amounts to sitting around and waiting for a rogue state or terrorist group to destroy Manhattan with an atom bomb. [I'm not endorsing this argument, but if I were a neoconservative, that's the argument I'd make.] But Muravchik, and other neocons, don't make a "least-bad-alternative" argument, they seem to believe that if the American government just devotes sufficient economic and military resources to democratization, it will somehow inherently use those resources wisely and efficiently, and if democracy fails to bloom, we should just try harder. If that still doesn't work, it means that the U.S. has encountered insurmountable local barriers to democratization, not that there is something questionable about the whole project to begin with.
The irony is that the other, domestic policy wing of neoconservatism, the wing that focused on the failures of the Great Society, got its reputation and influence by explaining that good intentions (as in failed Great Society programs) aren't enough, and that throwing government resources at problems not only isn't enough, but is often counter-productive. Idealism is one thing, but as non-neoconservative P.J. O'Rourke puts it, giving the government money and power is like giving car keys and whiskey to a teenage boy. Foreign policy neocons like Muravchik sound just like the domestic liberals their domestic neocon brethren delighted in attacking in the 70s and 80s: "it wasn't our policy that failed, much less our ideology, we just need to redouble our efforts, maintain our idealism, and give the government more money and power."
My colleague David Nimmer points to this passage from the Talmud (I quote here from a 1903 edition). The first two statements -- that a Sanhedrin that executes one person in seven years, or seventy years, is considered cruel -- are pretty well known, and are often used to assert that Jewish law is hostile to the death penalty, in spite of the Old Testament's frequent endorsement of the penalty. The Simeon ben Gamaliel response, however, is not as well known:
The Sanhedrin who executes a person once in seven years, is considered pernicious [often translated "cruel"].
R. Eliezar b. Azariach said: Even one who does so once in seventy years is considered such.
Both R. Tarphon and R. Aqiba said: If we were among the Sanhedrin, a death sentence would never occur.
To which R. Simeon b. Gamaliel said: Such scholars would only increase bloodshed in Israel.
Whoever is right, the matter is still being equally hotly debated, by Jews and others, thousands of years later.
What classical or Biblical allusions should law students learn -- perhaps by way of my mentioning them in class (I do a little language riddle in class for a couple of minutes once a week)? I have in mind phrases like Scylla and Charybdis, delphic pronouncements, Cassandra, and the like, phrases that satisfies both of the following conditions:
(1) They appear often enough in court decisions to be worth noting. (Cassandra may be a borderline case, but I just read it in a Texas court decision from a few weeks ago, and a quick search found another reference this past year.)
(2) Some entering law students won't know them well (Scylla and Charybdis may be borderline here; I'd also exclude herculean and sisyphean on the same grounds).
I frequently have disputes with law reviewer editors over the use of hyphens. Unlike co-conspirator Eugene, I'm not a grammatical expert, or even someone who has much of an interest in the subject.
But I do feel strongly that I shouldn't use a hyphen between words that constitute a phrase, as in "hired gun problem", "forensic science system", or "toxic tort litigation." Law review editors seem to want to generally want to change these to "hired-gun problem", "forensic-science system", and "toxic-tort litigation." My view is that "hired" doesn't modify "gun"; rather "hired gun" is a self-contained phrase. The same with "forensic science" and "toxic tort."
If readers want to set me straight, or better yet agree with me, feel free to do so below.
Professor David Currie Has Passed Away:
Word has reached me that the legendary University of Chicago law professor David P. Currie has died. I had the pleasure of meeting Professor Currie when I was visiting at Chicago last fall, and even in that very brief meeting I was very much taken by what a kind and gentle person he was. Currie was the author of many important and influential works; I believe his last book was here, the 4th Volume of his "Constitution in Congress" series, covering 1829-1861.
UPDATE: The University of Chicago Faculty Blog has a post with a few links here.
Just a few weeks ago we did the Baby M case in my Contracts course. One of my students calls my attention this interesting story about a woman who changed her mind after contracting to serve as a surrogate.
If Florida law is as represented in the story, then seems like she has a pretty easy case. The law seems preety clear on this so it isn't quite clear to me why the parents would have contracted with her to use her own egg instead of a donor though, given the potential for this to occur. On the other hand, my guess is that that would have been more expensive and more complicated and that the risk of the surrogate changing her mind was minimal.
Having won on that issue it takes some gumption for the surrogate to then turn around and ask for child support from the father!
Gallup Poll Suggests Continuing Strong Support For the Death Penalty in U.S.:Gallup's latest poll on American support for the death penalty has some very interesting results.
When asked, "Are you in favor of the death penalty for a person convicted of murder?," 69% of respondents replied "yes" and 27% replied no. That matches up with results from a May Gallup poll on the morality of the death penalty: in that poll, 66% said that that the death penalty was morally acceptable, 27% said that it was morally wrong, and 5% said it depended on the circumstances.
I was particularly interested in the results of the more specific poll question on whether the death penalty was imposed too often, not often enough, or about as often as it should be. The results: 49% said it should be imposed more often, 21% said it was imposed too often already, and 26% said it was imposed about as often as it should be. (There are various ways to understand the slightly different numbers among the different questions; one possibility is that the question, "Are you in favor of the death penalty for a person convicted of murder?" is interpreted by some respondents as being a preference for capital punishment for all murderers rather than just some.)
has gone to, among others, my former professor, Eric Maskin. Rather than try to summarize his accomplishments myself, I'll just refer you for now to Marginal Revolution (actually, just go to the main page, as there are a bunch of posts, and there may be more later) and the sources linked there.
The NY Times today profiles a 21 year old "American" jihadist blogger, Samir Khan, born in Saudi Arabia, raised in Queens, living in North Carorlina. I put "American" in quotes because it's not clear whether Khan is an American citizen.
Khan serves as an intermediary to the jihadists of the world, posting their videos and statements on his blog. Here is a example of Khan's perspective:
He described his favorite video from Iraq: a fiery suicide-bomber attack on an American outpost.
"It was something that brought great happiness to me," he said. "Because this is something America would never want to admit, that they are being crushed."
Asked how he felt living among people who had sent soldiers to Iraq, Mr. Khan said: "Whatever happens to their sons and daughters is none of my concern. They are people of hellfire and I have no concern for them."
I'm curious: assuming that (1) Khan is not a citizen; and (2) he has not violated any criminal laws, does American immigration law, tempered by constitutional considerations, provide grounds for deporting him? I'm less interested in knowing whether readers think Khan should be deported, which will lead to an utterly predictable set of comments, and more curious about whether there is any law addressing the subject, and what it says.
. . . when Henry Kissinger was awarded the Nobel Peace Prize, that "satire is now obsolete"? Sen. Larry Craig was inducted last night into the Idaho Hall of Fame -- his "first ceremonial appearance back in his home state," as the AP put it, "since his arrest in an airport bathroom sex sting became public in August." My guess is that's the first time that anyone has been inducted into any Hall of Fame with that as the tag line.
The Parchment of Chinon and the massive forthcoming book Processus Contra Templarios--Papal Inquiry into the Trial of the Templarsprove that the Knights Templar were known to be innocent of the charges for which they were persecuted and destroyed.
Nearly seven centuries after the Knights Templar were eliminated, they remain the subject of a vast body of speculation about modern conspiracies and secrets. Here's a short introduction to their real history, and that of their fellow warrior monks.
In 1119, Hugh de Payns created a group of fighting monks who patrolled the roads outside Jerusalem, and defended pilgrims from highway robbers. The impetus for the formation of the group may have been a massacre of 300 pilgrims near Jerusalem, just before Easter, by the coalition of Muslim forces known as the Saracens.
The knights' headquarters was the Temple Mount in Jerusalem (site of the former Second Jewish Temple), where the Muslims had built the al-Aqsa Mosque. Hence, the group took the name of the Order of the Poor Knights of the Temple of Solomon--or "Templars" for short. The Templars may have been created in imitation of similar orders in the Moslem world.
St. Bernard of Clairvaux, the leader of the Cistercian Order, strongly supported the Templars. His Liber Ad Milites Templi De Laude Novae Militiae extolled the knights, and made a word play on the contrast between malitia (evil) and militia. He wrote, "a new kind of militia is reported to have arisen in the world..." The killing of evildoers was "not homicide but malicide." Bernard argued that killing non-Christians was permissible as a last resort if there was no other way to stop them from oppressing Christians.
The Templars also received enthusiastic support from the Papacy. Pope Innocent II in 1139 issued the bull Omne Datum Optimum (Every Good Gift) making the Templars responsible only to the Pope directly. In 1144, Pope Celestine II published Milites Templi to encourage monetary donations to the Templars. The next year, Pope Eugenius III issued Militia Dei to give the Templars the right to own churches and cemeteries, and to collect the associated fees.
While vernacular translations of the Bible were disfavored, the Templars were given vernacular texts of Joshua, Judges, Samuel, and Maccabees, so they could learn the military strategy and tactics of the Holy Land.
Templar castles were used as secure store-houses for wealth. Because the Templars had a powerful and orderly international organization, the Templars played a role in the creation of Europe's early system of banks.
The Templars grew extremely wealthy. They were subject to no-one's control, and in their wars in the Holy Land, they made their own decisions about concluding truces or starting wars, without deferring to the wishes of the local Christian kings. With good cause, they were widely regarded as arrogant.
The unpopularity of the Templars provided an opportunity for France's King Philip II (known as "the Fair" because of his good looks, not his judgement) to destroy them in order to seize their vast wealth. In 1306, Philip expelled all the Jews from France, and confiscated their assets. He then aimed at the Templars. Templars were arrested and tortured, and made to admit to various infamous crimes, such as sodomy, profaning Catholic ritual, and so on. The actual evidence against the Templars was slight, but Phillip was able to force the Pope to support his plot against the Templars, for the Papacy was under the control of France. Other monarchs, such as Edward in England, followed Philip's example, and helped themselves to Templar property.
The Knights Templar were abolished by the Pope in 1312. In essence, they were victims of forfeiture laws. The rule that the government can seize the property of a criminal proved irresistibly tempting for Philip the Fair and his brother kings. Indeed, forfeiture was sometimes a major revenue source for monarchs, and the Templar persecution was not the last time that innocent people were convicted on phony charges so that the government could enrich itself.
Next to the Templars, the most famous Catholic military order was the Sovereign Military and Hospitaller Order of St. John of Jerusalem, also known as the Knights Hospitaller. They built a hospital in Jerusalem, but also branched into military affairs, and fought in defense of the Crusader kingdoms. Like the Templars, they warred bravely, but failed to coordinate with other Christian forces. After being driven out of Asia, they headquartered in Cyprus, Rhodes, and Malta, ruling the latter island until being defeated by Napoleon in 1798. Today, they still operate hospitals and ambulances.
The warrior monks of Prussia were the avaricious and oppressive Teutonic Knights, who expanded the realm of Christianity to the north and east of Germany.
The Order of Our Lady of Bethlehem ran hospitals, and was also charged by Pope Pius II with defending the island of Lemnos from the Turks in 1459. (The Turks prevailed.) The Order of St. Stephen was founded in 1561, as a naval force, and participated in the great Christian naval victory at Lepanto.
In Spain, there were many orders of warrior monks. These included the Order of Alcántara, the Order of Calatrava, and the Order of Santiago. The Spanish Orders may have provided the decisive force which helped the Catholic monarchs push back Muslim rule in Iberia. Ironically, the original military orders had arisen as a result of the Crusades in the east, but the most significant long-term effect of the military orders was a victory, that would endure for centuries, against the Muslim invasion of the west.
The Order of Our Lady of Mercy for the Redemption of Captives (the Mercedarians) was founded in 1218 to rescue Christian slaves held by Muslims. Originally a military order, the Mercedarians became a mainly clerical order in the next century; the order still exists today.
Sources: Edward Burman, The Templars: Knights of God (Rochester, Vermont: Destiny Books, 1986); Roberta L. Harris, The World of the Bible (N.Y.: Thames & Hudson, 1995); Michael Walsh, Warriors of the Lord: The Military Orders of Christendom (Grand Rapids, Mich.: Wm B. Eerdmans, 2003).