The Volokh Conspiracy

This Blog's Reading Level:

Not sure whether that's right, but, hey, "Think with the learned, and speak with the vulgar."

Attorney General Mukasey on the Second Amendment:

A tangent from a statement by Senator Durbin, in the Judiciary Committee meeting ($) on the Mukasey confirmation:

Judge Mukasey told me, quote, "Based on my own study, I believe the Second Amendment protects an individual's right to keep and bear arms," end of quote.

Thanks to David Codrea for the pointer.

Writers Told, You Must Name Names:

Here's an e-mail that was just forwarded to me by someone I know; I have no reason to doubt its authenticity, though if there is any mistake, please let me know. Rule #9 appears to be quoted accurately.

November 9, 2007

Dear fellow WGAW members,

I'm ..., Chair of the newly-formed WGA West Strike Rules Compliance Committee ("SRCC") and a member of the WGA West's Board of Directors as well as an alternate member of the 2007 MBA Negotiating Committee.

The other members of the SRCC are: ....

The mission of the SRCC is to ensure that the Strike Rules are strictly enforced. The SRCC will primarily concentrate its efforts on unearthing and discouraging scab writing.

There is no more fundamental working rule than the prohibition against a WGA member performing struck work. Strike Rule #9 states: "You must inform the Guild of the name of any writer you have reason to believe is engaged in strike breaking activity or other scab writing." If you have suspicions about a particular writer or project, the best way to report them will be to call our hotline or click on the red icon on the WGA.org homepage and simply fill out the on-line form. We'll handle your call discreetly.

Our purpose is not to punish people; it is to head off scab work before it can undermine the strike.

The STRIKE TIP HOTLINE number is: ...

When you call, it will help if you flesh out your information as much as possible.

For general inquiries regarding strike rules please call: ...

Please know that the leadership of your Guild is just as eager as you to keep this strike short. Unfettered scab writing will only lengthen it. The simplest and most effective thing you can do to speed things up is to share information with the SRCC.

I've never been prouder of this union than out on this week's picket lines. I believe a good contract is within reach. We just have to hold together.

Thank you all very much.

Sincerely,

...

On behalf of the Strike Rules Compliance Committee

Note also that "Article X gives the Guild the authority to impose discipline for violations of the Strike Rules by Guild members. Discipline may include, but is not limited to, any or all of the following: expulsion or suspension from Guild membership, imposition of monetary fines, or censure. Discipline imposed is enforceable through the courts."

Note, of course, that union rules, like many blacklisting mechanisms, are the actions of private entities -- albeit ones whose actions are supported (or sometimes hindered) by various labor laws -- and not of the government acting as sovereign.

California Sues EPA for Waiver Decision:

Yesterday, California sued the U.S. Environmental Protection Agency for failing to rule quickly enough on the Golden State's request for a waiver of Clean Air Act preemption of its greenhouse gas emission standards for new motor vehicles sold in the state. The state's complaint is here. As a legal matter, there is not much to the suit. Politically, however, the suit makes sense as an effort to maintain pressure on the Bush Administration to approve California's waiver request.

California's legal claim is that the EPA has unreasonably delayed action on the waiver request. Yet the Bush Administration has pledged the EPA will make a decision by the end of the year -- in less than two months. Assuming the EPA keeps to this schedule, the suit will be rendered moot by EPA action. Yet even were the EPA not about to act, there would be little force to California's claim.

Suppose, for instance, the Administration had not set a deadline for the EPA's decision, would California's claim be any stronger? I don't think so -- at least not yet. As a general matter, it is very difficult to prevail in an “unreasonable delay” suit. Unless an agency had failed to meet a specific statutory deadline, courts are reluctant to order them to act. If an agency can offer a plausible reason for failing to act more promptly, and the delay has not been excessive, judicial review will be fairly deferential.

In this particular case, California would have a difficult claim to make because the EPA has an explanation for its delay. Specifically, the EPA could argue that, until earlier this year, the agency was awaiting resolution of the Massachusetts v. EPA litigation concerning the applicability of the Clean Air Act to greenhouse gases. As the EPA had maintained it lacked authority to regulate greenhouse gases under the Act, and that this view could have precluded the agency from issuing a waiver of preemption, it can argue that it has only had several months to consider the petition, and public comment, in light of the Supreme Court's Massachusetts decision. Given the somewhat glacial pace of agency action, it is hard to argue that seven months is an unreasonable delay justifying judicial intervention.

Does this mean the lawsuit is pointless? Not at all. As I suggested above, filing suit is a way for California to increase political pressure on the Bush Administration to approve the waiver. Given that approval is likely (but not certain, for some of the reasons I discussed in these posts and this paper), it is simply smart politics for California to place pressure on the Administration. Also, if for some reason the EPA does not meet the announced timetable -- an eventuality which could strengthen California's legal hand -- the suit will already be in motion. Indeed, by filing now, California makes it more difficult for EPA to let the timetable slip.

Related Posts (on one page):

Temp Attorneys: The Washington City Paper has this provocative article on attorney temping. An excerpt:

For more and more law school graduates, this is the legal life: On a given day, they may plow through a few hundred documents—e-mails, PowerPoint presentations, memos, and anything else on a hard drive. Each document appears on their computer screen. They read it, then click one of the buttons on the screen that says "relevant" or "not relevant," and then they look at the next document.
This isn’t anyone’s dream job, but more and more lawyers in big cities around the country are finding that seven years of higher education, crushing student loans, and an unfriendly job market have brought them to windowless rooms around the city, where they do well-paid work that sometimes seems to require no more than a law degree, the use of a single index finger, and the ability to sit still for 15 hours a day. Is this being a lawyer? It is now.

Thanks to AL&P for the link.

Where's the State Action in Tort Awards Based on Speech?

Occasionally I hear people ask this question. Criminal prosecution for speech of course involves the government prosecuting and imprisoning or fining someone; injunctions of speech involve a court order barring speech; but when one individual sues another, is that really "state action" that's governed by the First Amendment? Why isn't it like a private employer firing a private employee, or a private property owner ejecting a demonstrator from his private property, neither of which poses a First Amendment problem? I've most recently heard this question about the Snyder v. Phelps intentional infliction of emotional distress jury verdict, but the same could be asked about speech-based verdicts for libel, disclosure of private facts, false light invasion of privacy, unauthorized use of another's name or likeness, interference with business relations, and the like.

The Court's answer is well-settled and, in my view, quite correct. Here's a relevant passage from New York Times v. Sullivan, the leading libel case. (The plaintiff there was a government official, but he was suing the same way any citizen could sue, and of course the First Amendment rules related to libel law don't just apply to government officials.)

We may dispose at the outset of ... the proposition relied on by the State Supreme Court -- that "The Fourteenth Amendment is directed against State action and not private action." That proposition has no application to this case. Although this is a civil lawsuit between private parties, the Alabama courts have applied a state rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press. It matters not that that law has been applied in a civil action and that it is common law only, though supplemented by statute. The test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised.

That, I think, is exactly right. When a government actor (the court system) coercively transfers money from A to B because of A's speech, that is a restriction on speech. There's little difference in principle or in practice between the government's imposing a fine on, say, racist speech and the government's allowing people who are offended by racist speech to sue and collect damages (whether under a legislatively created statute or a judge-made common-law tort rule). In both situations, there is a government-created rule of law. In both situations, a government actor (a judge or jury) applies the rule of law based on the content of the person's speech. Both are therefore government-imposed content-based speech restrictions, and should be judged as such.

When a private employer stops paying a private employee because of the employee's speech, that does not involve government action. When a private property owner ejects a demonstrator because of the demonstrator's speech, and enforces this ejection through the threat of a trespass lawsuit or a trespass prosecution, then there would be government action in that lawsuit or prosecution -- the protection of real property rights does involve government action. But the government action would not be based on a governmental judgment about the content of the speech, only the government's deciding whether the defendant had stayed on another's property against the property owner's wishes. That's a big part of why trespass law is constitutional even applied to speakers.

Finally, when a person sues another for the breach of a speech-restrictive contract, there is also government action, but constitutionally permissible government action, because government actors do not themselves "define[] the content of publications that would trigger liability"; instead, contract law "simply requires those making promises to keep them. The parties themselves, as in this case, determine the scope of their legal obligations, and any restrictions which may be placed on the publication of truthful information are self-imposed."

So whenever a court acts coercively -- whether to put someone in jail, or to take his money -- there's government action. And when the government action involves restricting speech because of its content (or the supposed harms that flow from its content), without the speaker's prior contractual permission, that restriction triggers the usual First Amendment scrutiny.

Related Posts (on one page):

Lessons of the Colbert Candidacy:

Rick Hasen explains why Stephen Colbert's satirical candidacy, however funny, "raises some serious questions about the appropriate role of corporate money in the election process.

Related Posts (on one page):

Lessons of the Colbert Candidacy:
The Colbert Election Experience:
Colbert's Campaign -- The Climax
Colbert Is Campaign Finance Scofflaw, and So Can You:

Michael Mukasey's Nomination Has Been Confirmed by the Senate, by a vote of 53-40. News story here.

Modern Christian Pacifist Philosophy:

This Working Paper, for which comments are solicited, examines the strengths and weaknesses of some leading Christian pacifist religious philosophers. The Article suggests that some intellectual arguments for pacifism are logically solid (once certain premises are granted), while others have serious flaws. The article discusses five influential philosophical advocates of non-violence Thomas Merton, Stanley Hauerwas, Leo Tolstoy, Tony Campolo, and John Howard Yoder. In addition, the Article examines three real-world cases where the practice of non-violence was put into action: the Danish rescue of the Jews during WW II, the American Civil Rights movement in the South in the 1960s, and the invasion of the Chatham Islands—the home of the pacifist Moriori tribes.

The Working Paper is argues that the Tolstoy, Hauerwas, and Campolo arguments for pacifism are seriously flawed, whereas the arguments of Merton and Yoder are much more solid.

United States v. Robison: So here's an odd one.

Two years ago, Senior United States District Judge Robert Propst spent over two months preparing for and trying a complicated criminal case against polluters for polluting "navigable waters" under the Clean Water Act. On appeal following conviction, the Eleventh Circuit reversed Judge Propst in light of the Supreme Court's intervening construction of "navigable waters" in Rapanos v. United States. The Eleventh Circuit ruled that Justice Kennedy's definition of "navigable waters" in his concurring opinion in Rapanos was now binding, and that Judge Propst's jury instructions based on earlier 11th Circuit precedent was no longer good law. The appellate court reversed and remanded the case back to Judge Propst.

On remand, Judge Propst then decided (as a Senior Judge) to have the case reassigned to another district judge rather than to handle the retrial himself. Part of the reason is that as a Senior Judge he's trying to cut back on trials. But much of the reason is that he's really frustrated with having been reversed on grounds that he finds unpersuasive.

Instead of just transferring the case, however, Judge Propst wrote a "memorandum opinion," clearly intended to reach a broad audience, explaining that he thinks the Supreme Court and the Eleventh Circuit have really messed up the law. As he sees it, their errors and mistakes have forced him to be so frustrated that he feels compelled to transfer the case. He has nothing but disdain for the opinions in Rapanos: "I will not compare the 'decision' to making sausage because it would excessively demean sausage makers." (fn5). And he also criticizes the Eleventh Circuit because he thinks they ruled incorrectly in reversing him on appeal. He concludes:

It is not the reversal of the convictions in and of itself which concerns me. It is the methodology by which the result has been reached. I realize that I may be subject to criticism for telling the truth. While this opinion may seem somewhat surly, it may be understandable when this court spent over two months preparing for and trying this case only to be told that it must be done again because of a questionable change in the law.

I'm old fashioned about these things, so I find this opinion very inappropriate. Like any profession, judging can be frustrating. And like anyone else, Judge Propst was perfectly free to write an op-ed or a law review article expressing his views. But Judge Propst was nominated by the President and confirmed by the Senate to decide cases and controversies, not to catalog his frustrations in the Federal Supplement 2d. If our threads on Justice Ginsburg are any sign, however, I may be in the minority in having this narrow view of the proper role of the courts.

Thanks to reader George Weiss for the link.

Does David Lat Owe Us Beer?: If the winner of the "Best Law Blog" poll has to buy a consolation round for the runner-up bloggers, it looks like the answer is "yes." Meanwhile, my favorite comment about this poll comes from Brian Leiter:

[I]t's a pretty silly affair. Even though the Volokh bloggers have been begging their readers (of whom, based on their site counter, there must be 20,000+ per day) to vote almost every day for the last week, they are still trailing David Lat's gossip blog, Above the Law, and have mustered only about 4,000 votes (and bear in mind you can vote once every day!). But, really, who cares?

Indeed.

Barney Frank's ENDA:

Yesterday the House passed the Employment Non-Discrimination Act. The vote was 235-184, with 35 Republicans in favor and 25 Democrats against. It's the first time either house of Congress has ever passed a gay civil-rights bill.

Ted Kennedy is expected to introduce ENDA in the Senate soon. Some Senate Republicans are predicting it has a good chance of passing early in the new year, assuming it's not expanded. The bill would then go to President Bush, whose advisors suggested a presidential veto two weeks ago. But now the White House is telling the New York Times that it will examine changes made to the bill before a final decision is made.

However it comes out this session, the fact that the bill has passed even a single house of Congress is a sign of tremendous political progress for gay Americans. Similar attempts to pass employment-discrimination protection have languished in Congress for more than three decades. Now a strong majority of the House is on record in an actual recorded vote supporting the bill. This record can be used to reinforce their resolve should ENDA need to be reintroduced after the next election. The vote creates political momentum for eventual enactment.

The voting patterns were noteworthy. Of the 25 Democrats who voted "no", 18 come from rural and conservative districts, mostly in the South. The remaining seven Democrats who voted "no" did so because the bill did not include "gender identity," a provision that would have protected transsexuals, crossdressers, and other gender nonconformists from employment discrimination. The seven are: Rep. Yvette Clarke (D-N.Y.), Rush Holt (D-N.J.), Michael Michaud (D-Maine), Jerrold Nadler (D-N.Y.), Edolphus Towns (D-N.Y.), Nydia Velazquez (D-N.Y.) and Anthony Weiner (D-N.Y.). Thus, six of the seven come from the New York area, and all represent states that already protect gays from employment discrimination.

The 35 Republicans supporting ENDA — almost 20% of the Republican caucus — more than made up for the Democratic defections and were critical to House passage. These Republicans, with one exception (Rep. Jim McCrery--Louisiana), come from districts outside the traditionally conservative South.

Little noticed in the run-up to the House vote was the Labor Committee report that accompanied the bill. The report was prepared by attorneys who work for the committee. Much of the report is devoted to recounting the history of the numerous attempts over the past 33 years — beginning with the first bill introduced by Bella Abzug in 1974 — to get Congress to deal with anti-gay employment discrimination. That history tells a story of painfully slow political progress made in each session of Congress, with more co-sponsors backing an anti-discrimination bill in every session. Other parts of the report document the prevalence of anti-gay job discrimination, as well as the economic and psychological impact of such discrimination.

In the section-by-section analysis of the committee report, I noticed a couple of passages relevant to the recent controversy over adding "gender identity" to the bill. On p. 31, the report notes that ENDA forbids discrimination based on "actual or perceived sexual orientation." Thus, "ENDA creates a cause of action for any individual — whether actually homosexual or heterosexual — who is discriminated against because that individual is 'perceived' as homosexual due to the fact that the individual does not conform to the sex or gender stereotypes associated with the individual's sex." Obviously, this interpretation of ENDA offers some protection to those employees whose gender nonconformity leads others to assume they're gay or lesbian and then suffer discrimination on that basis. It doesn't protect transsexuals or crossdressers as fully as adding "gender identity" to the bill would have, but the bill moves in that direction.

Additionally, on p. 33, the report puts to rest any fears that stripping "gender identity" from the bill would lead federal courts to conclude that Congress meant to impliedly reverse Price Waterhouse v. Hopkins, a 1989 case in which the Supreme Court held that sex stereotyping violates Title VII. The report concludes that Section 15 of ENDA, entitled "Relationship to Other Laws":

Preserves provisions in other Federal, state, or local laws that currently provide protection from discrimination. For example, Congress does not intend to overrule, displace, or in any other way affect any U.S. Supreme Court or other federal court opinion that has interpreted Title VII in such a way that protects individuals who are discriminated against because they do not conform to sex or gender stereotypes. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (female plaintiff brought successful Title VII claim after she was denied partnership in an accounting firm because she did not conform to female sex stereotype); Nichols v. Azteca Rest. Enters., 256 F.3d 864 (9th Cir. 2001) (male plaintiff brought successful Title VII claim after he was subjected to a hostile work environment because he failed to conform to a male stereotype).

This sort of legislative history does not dispose of controversies over the meaning of ENDA. But it does offer a reasonable and persuasive interpretation of the bill that will likely play a role in future litigation. The committee legal counsel who worked on this report anticipated many of the objections to ENDA from President Bush's advisors and from transgender and gay activists disappointed that the bill isn't more comprehensive. They did an extraordinary job walking the fine line between an interpretation of ENDA that is unduly crabbed and one that is objectionably expansive.

ENDA is the product of decades of work by gay advocates whose efforts once seemed quixotic. In 1974, Abzug's bill had only four co-sponsors and was completely ignored by the House Judiciary Committee. Yesterday 235 members of the House backed the same basic idea.

Many people deserve credit for making yesterday happen, including gay activists (many long dead) and their heterosexual allies, law professors, lawyers, members of Congress and their staffs, and commentators. But one person in recent history, more than anyone else, is responsible for yesterday's historic and precedent-setting vote.

That person is Barney Frank. I disagree with Frank about many things. But without his work over the years, without his dogged determination, without his eloquence and parliamentary skill, without his willingness to stand up to critics on his left and his right, and without his pragmatic understanding of the nature of incremental progress in civil rights, there would be no ENDA in any form. Period. Thanks to Barney Frank, we took one huge step closer yesterday to the day when all gay Americans — including especially the millions of them in the South, Midwest, and Mountain West — can live their lives without the debilitating fear and devastating consequences of losing their jobs because of whom they love.

Related Posts (on one page):

Lederman on Higazy:

Marty Lederman on Higazy:

What was the justification for the court "sealing" Higazy's allegations in the first instance? I am aware of no doctrine in law, or other policy, that permits the FBI or any other law-enforcement or intelligence agency to prevent individuals from describing how they were treated by our government. The fact that the FBI's conduct here was plainly unlawful if Higazy's allegations are true only makes matters worse, since the government should not be able to classify its illegal conduct. But even if the threat had been a lawful interrogation technique, since when can the government insist that you must keep secret what they do to you?

A similar issue is now being litigated in the context of various recent laws that prohibit phone companies and other corporations from revealing that the government has served them with National Security letters requiring production of customer records. One district court recently declared such a gag order unconstitutional, in a case that bears watching.

This is, I think, an ominous development -- the increasingly common notion that the government can insist that no one be permitted to publicly disclose what they know about how the government itself investigates crimes and terrorism, and how it treats those suspected of wrongdoing. Am I missing something? Is there some important historical precedent for this?

Lord knows Marty and I have our disagreements on various issues, but I think this is a case in which we are on precisely the same page.

Related Posts (on one page):

As They Think Proper:

In my last post about my paper, The Two Appointments Clauses: Statutory Qualifications for Federal Officers, I discussed the lack of a textual foundation for statutory qualifications within the Confirmation Appointments Clause. The Vested Appointments Clause, however, does appear to permit Congress to enact statutory qualifications. The textual reading here is pretty detailed, so it's important to keep the exact words of the Constitution in mind as you go through this. Recall that the Vested Appointments Clause reads:

Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

One major difference here is that, unlike in the Confirmation Appointments Clause, Congress is given primary authority here. It is Congress that may vest an appointment, whereas only the Senate gives advice and consent for a confirmation appointment. Congress's primary mode of acting is by passing statutes. Thus, if vesting an appointment allows the imposition of job qualifications, it would seem that imposing those qualifications by statutes would be acceptable.

So, does vesting an appointment include the authority to impose job qualifications? To answer that, we need to figure out what that odd phrase, "as they think proper," means.

One possibility is that "as they think proper" just emphasizes that the decision whether to vest an appointment or not is entirely up to Congress. In this reading, "as they think proper" adds nothing to the phrase. It would be identical, if less emphatic, if the Framers had written, "Congress may by Law vest the Appointment of such inferior Officers in the President alone ...." Now, I tend to think that we should try to avoid readings that make a phrase in the Constitution (or a statute) redundant. Scholars disagree on this issue, but I agree with the sizeable number of them that words in legal documents should be given independent meaning whenever it is reasonable to do so.

But even if you fall on the other side of this debate, the reading of this clause with "as they think proper" omitted as being simply for emphasis creates another problem: What does the word "such" refer to in the phrase "such inferior officers"? The only reasonable referent is back in the Confirmation Appointments Clause. A long block quote is necessary here:

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, ~~as they think proper,~~ in the President alone, in the Courts of Law, or in the Heads of Departments.

Under this reading, "such inferior officers" has to be the same group as "all other Officers of the United States" — that is, all officers except the few that are specifically named in the Confirmation Appointments Clause. The issue of whose appointment can be vested and who requires confirmation is, shall we say, hotly contested.

A sort of intermediate reading is that "as they think proper" makes Congress's decisions regarding vested appointments a political question that is not subject to judicial review. On this reading, the Vested Appointments Clause allows Congress to determine when to vest appointments, and also in what manner to vest them, including the imposition of statutory qualifications. Congress's power to vest appointments would be subject only to the constraints that certain officers (ambassadors, Supreme Court Justices) cannot have vested appointments, and that only certain officials (the President, department heads, and courts) can do the appointing. Congress may impose additional restrictions on vested appointments, including statutory qualifications, at its discretion.

The final way to read the clause is to treat "as they think proper" as part of the phrase "such as." That is, "such inferior Officers as they think proper" means "those inferior officers that Congress thinks are proper." This reading sees the Vested Appointments Clause as a strong affirmative grant of power to Congress to impose statutory qualifications. Congress can determine what sorts of people would be proper officers to fill the office (for instance, people who are citizens and have a J.D. degree), and then vest the authority to appoint such a type of officer in the President or another actor.

I hope I haven't lost you in the details here, as this is quite a close reading of the text. For a more thorough and footnoted explanation, see Part I.B of my paper. Next time: the Necessary and Proper Clause!

Related Posts (on one page):

As They Think Proper:
Advice, Consent, and Statutory Qualifications:
Statutory Qualifications
Two Appointments Clauses:

Sotheby's Stock Drops Sharply After Disappointing Auction.--

Some are wondering whether the art market has peaked after a weak night at auction last night:

High-profile impressionist paintings failed to sell at auction at Sotheby's in New York prompting fears that art's dizzy boom could be nearing an end.

Works by Vincent Van Gogh, Pablo Picasso and Pierre-Auguste Renoir went unsold at Sotheby's sale of Impressionist and modern art last night although the sale of less expensive works resulted in £128.8 million of art going under the hammer.

The total was much less than the auction's low pre-sale estimate of £170 million and far less than the £235 million top estimate.

Van Gogh's The Fields (Wheat Fields), thought to be the last landscape ever painted by the Dutch artist, was expected to fetch in excess of £20 million. But the 1890 work received no bids. . . .

Four paintings by Picasso, including his landmark 1931 masterpiece La Lampe that came onto the market directly from the artist's family, failed to sell. Typifying the uncertainty, works by Renoir, Matisse, Monet and Chagall all went under the hammer last night while other paintings by the artists remained unsold. Twenty out of the 76 lots failed to find a buyer. . . .

"The Van Gogh painting not selling is a huge shock," said one European art dealer speaking on conditions of anonymity.

"This gives more indication that the art boom is on course to be another casualty of the global economic downturn in which case maybe we should all go and do something else for a few years."

(click to enlarge Van Gogh)

Sotheby's stock dropped more than 30% in the first 15 minutes of trading on the New York Stock Exchange Thursday morning [links added].

Related Posts (on one page):

Contemporary Art Auction at Sotheby's Goes Well.--
Sotheby's Stock Drops Sharply After Disappointing Auction.--

Judge Kozinski Receives Witkin Medal from the California State Bar:

"[T]he medal recognizes 'those legal giants among us who have altered the landscape of California jurisprudence.' It is conferred on people 'who, through a career of extraordinary service, have made significant contributions to the quality of justice and legal scholarship in our state.'" An eminently well-earned honor for a superb judge (and, I'm pleased to say, my brother's and my former boss).

"A Last Minute Plea for Votes,"

read the title of a post from our friendly rival at Above the Law, and the plea has led us to fall behind by (at current count) 313 votes. So we plead right back: Please vote for your favorite law blog — whatever that might happen to be — at this page; the rules allow you to vote once every 24 hours.

Classification Pathologies:

Majid Khan is a CIA detainee. In meetings with his attorneys, Khan has apparently made allegations concerning his treatment during his detention. Yet such information, even as detailed by Khan himself, is presumptively classified, and his attorneys are apparently barred from relating Khan's claims to Congress. Marty Lederman finds this "absurd," and I am inclined to agree. As Lederman asks, "Even if the classification [of the techniques] were itself valid, can it really be the case that the persons against whom the CIA employed its methods may be prevented from disclosing such historical facts to the public?"

I can see an argument for barring Khan's attorneys from disclosing information that might reveal classified operational details (e.g. how Khan was identified and captured) or sensitive intelligence information (e.g. what Khan told the CIA or learned the CIA knows). The disclosure of such information might compromise national security. Yet at issue here is nothing more than information about how Khan has been treated by the U.S. government — information Khan would almost certainly be able to reveal were he not currently detained and which might help inform the public debate about how detainees are and should be treated. (I recognize that Khan could lie about his treatment, but this risk would hardly seem to justify the prohibition at issue; if he were to lie, the government could dispute his claims.)

The Khan case has disturbing similarities with the Higazy affair. As regular readings of Howard Bashman's How Appealing know, Abdallah Higazy is an Egyptian national who was detained by the FBI and who, in the course of interrogation, made a false confession. (Apparently the FBI's interrogation techniques "worked.") Among other things, Higazy claims that the FBI threatened to identify Higazy's family to Egyptian authorities. Fearing his family could be tortured, Higazy alleges this threat induced him to confess. After his release, Higazy sued and, in an opinion last month, the U.S. Court of Appeals for the Second Circuit held that his suit could proceed.

Interestingly enough, the official public version of the Second Circuit's opinion is redacted. Although there is no dispute that Higazy was innocent of any wrongdoing — he's an engineering student, not a terrorist — some of the information concerning Higazy's FBI interrogation was filed under seal. Some of this information was included in the original version of the Second Circuit's opinion, which (as Bashman recounts here) was initially posted on the Second Circuit's website (and later posted on How Appealing). The opinion was later withdrawn in favor of the redacted version, and a court official asked Bashman to remove the opinion from his site, a request Bashman refused.

As in the Khan case, the "secret" material concerns the U.S. government's alleged (mis)treatment of a detainee, not the sort of information for which classification could be justified on national security grounds. (See Patterico's analysis here.) The disclosure of such information could be embarrassing to the U.S. government, to be sure, but that would hardly justify keeping such material classified or barring public disclosure. To the contrary, public policy often explicitly encourages the disclosure of such information by protecting (and sometimes even rewarding) whistleblowers and others who disclose potential government wrongdoing.

I recognize that there is much information that, at least for the time being, needs to be kept secret for national security purposes. There may even be an argument for concealing some details about highly sensitive interrogations (though I am skeptical). Yet I see no reason why the specific allegations about how Khan and Higazy were treated should be kept from the public. There are many reasons to classify information and enforce government secrecy, but fear of embarrassing the government with allegations of misconduct is not one of them.

UPDATE: Several commenters argue that there is a valid basis for keeping the details of interrogation methods secret. I agree with this, though I also believe that there are countervailing interests against which such concerns need to be balanced. There are reasons why we would not want our most feared enemies to know all of our interrogation protocols. At the same time, political accountability requires some amount of disclosure (particularly to Congress).

Note, however, that this is not what is at issue in either the Khan or Higazy incident. In these cases, what is at issue is the disclosure of what actually occurred during interrogation. Set aside the allegations of illegal conduct by the interrogators (though this is clearly relevant), in neither case would disclosure give terrorist operatives a detailed understanding of our interrogation protocols. It is simply implausible that the Khan interrogations, for instance, exhausted the universe of potential authorized approaches, and future detainees would have no assurance that they should only expect (and prepare for) what was done to Khan. For this reason, I do not think that the argument for classifying interrogation techniques establishes the need to keep Khan's (or Higazy's) claims secret.

Related Posts (on one page):

The $10.9 Million Verdict Against the Phelpsians:

To see the posts on this subject from beginning to end (rather than in the blog-normal reverse order), click here.

Jury Discretion, Viewpoint Discrimination, and the Size of the Snyder v. Phelps Compensatory Damages Award:

Finally, let me close this series of posts with a thought about the particular damages award in Snyder, and what it says about the danger of leaving these questions to juries.

The jury awarded $8 million in punitive damages to the plaintiff in Snyder v. Phelps, but it also awarded $2.9 million in compensatory damages.

Now I stress again that the speech here was extremely offensive (and, in my view, entirely unjustified); and of course the plaintiff, being a grieving parent, was especially emotionally vulnerable. Yet I would think that even a grieving father wouldn't be that damaged by speech that (1) he saw on one occasion (albeit a deeply important occasion), during television reports following the funeral, that (2) he knew was not remotely reflective of the views of his community, and that (3) he knew was said by people who are held in contempt by the community. ("Snyder testified that he never saw the content of the signs as he entered and left St. John's on the day of his son's funeral," and recall that the signs were 1000 feet away from the church.)

The speech wasn't threatening. It didn't damage the father's reputation, or even the reputation of his late son. It wasn't constantly repeated. I can't quite see how it would exacerbate the father's grief, which of course stems from his son's death, not from the fact that a small minority of hateful, anti-American kooks and publicity hounds say the son deserved to die.

The speech doubtless made the father extremely (and rightly) angry. But is $2.9 million really a sensible compensation for that sort of emotional distress? Again, remember that this was supposed to be just the amount of compensatory damages. And of course, note also that even if the First Amendment were entirely out of the picture, the size of the compensatory verdict is constitutionally significant: Under the Court's Due Process Clause jurisprudence, the punitive damages would be unconstitutional if they were too many times greater than the compensatory damages.

This, I think, further illustrates the danger of leaving juries with the discretion to decide which speech should be suppressed, especially under broad and vague standards such as "outrageous[ness]." Liability easily ends up turning on how much juries condemn the speaker's viewpoint -- as well as the speaker's manner -- and not just on supposedly objective factors such as how much damages the speech actually inflicted.

Related Posts (on one page):

The Phelpsians' Speech, the Mohammed Cartoons, and the Slippery Slope:
Where's the State Action in Tort Awards Based on Speech?
Jury Discretion, Viewpoint Discrimination, and the Size of the Snyder v. Phelps Compensatory Damages Award:
Funeral Picketing and Residential Picketing:
The Phelpsians' Picketing and Fighting Words:
Invasion of Privacy and the Freedom of Speech:
The Overbreadth Doctrine and the $10.9 Million Funeral Picketing Case:
The Intentional Infliction of Emotional Distress Tort and the Freedom of Speech:

Funeral Picketing and Residential Picketing:

I've tried to explain recent posts why I think this particular verdict against the Phelpsians is unconstitutional, because the intentional infliction of emotional distress tort and the invasion of privacy tort can't properly be used to punish such speech. But may a legislature permissibly enact statutes banning funeral picketing, perhaps by analogy to many jurisdictions' bans on residential picketing?

I discussed this in some measure last year; and it seems to me that indeed a content-neutral ban on picketing immediately in front of a place in which a funeral is being conducted would likely be upheld, just as content-neutral bans on picketing immediately in front of home are upheld.

But the bans would have to be content-neutral, rather than relying on criteria such as "outrageous[ness]" or "offensive[ness]," which invite an inquiry into the speaker's viewpoint. Compare Carey v. Brown, which struck down a residential picketing ban because the ban had a content-based exception for labor picketing.

The bans would also have to be narrow. Even as to residential picketing, the Court upheld restrictions in large part because they left open the alternative of parading through the neighborhood, and later struck down an injunction that created a 300-foot no-picketing buffer zone around certain residences. It's hard to see how, given this, the Court would uphold a ban that would cover the Phelpsians' speech 1000 feet away from the church at which the funeral was taking place.

Of course, the consequence of these limitations is that people would still be able to express their anti-American, anti-gay, cruel, unduly personalized, and just plain disgusting views in places where the bereaved could see them -- on radio programs (should such a program invite the speakers as guests or take their calls), in picket signs that aren't right in front of the funeral but are visible from the funeral procession, in press releases that some media outlets may report on, on Web sites, and the like. But repugnant as this speech may be, it seems to me that the First Amendment requires that it be tolerated.

Related Posts (on one page):

The Phelpsians' Picketing and Fighting Words:

I've argued in earlier posts that the verdict against Phelps should be set aside because the intentional infliction of emotional distress tort is facially overbroad and thus unconstitutional as applied to speech. The tort might be constitutional if a court limits it to applying only to otherwise unprotected speech (such as threats, fighting words, and so on); but it has not been so limited.

Still, some say, what if the tort is so limited, perhaps by the appellate court in this case, and liability is defended on the grounds that the Phelpsians' speech was unprotected under the "fighting words" exception? I expect that would require reversing the verdict and retrying the case, since the jury wasn't required to find that the speech was fighting words -- but why not have such a retrial, or perhaps even affirm the verdict on the grounds that the speech was clearly fighting words and thus the failure to instruct the jury more narrowly was harmless error?

Under the "fighting words" exception, speech is unprotected if "tend[s] to incite an immediate breach of the peace" by provoking a fight, Chaplinsky v. New Hampshire (1942), so long as the speech consists of a "personally abusive epithet[] which, when addressed to the ordinary citizen, [is], as a matter of common knowledge, inherently likely to provoke violent reaction," Cohen v. California (1971), and is "directed to the person of the hearer," and is thus likely to be seen as "a direct personal insult." See Chaplinsky v. New Hampshire (1942); Cohen v. California (1971).

I have no doubt that the speech here would lead many listeners to want to punch the speaker; it would lead me to want to do that, too. But the "direct personal insult" requirement is important, or else the doctrine would lead to the punishment of a vast range of controversial speech: picket signs that condemn strikebreakers; abortion clinic protests that call abortion providers "murderers" or "babykillers"; military base protests that call soldiers "murderers" or "babykillers"; a wide range of public speech that some see as racist, sexist, antigay, religiously bigoted, anti-immigrant; and so on. And of course, as I mentioned for the emotional distress tort, the speech would then be punishable through civil lawsuits, through criminal prosecutions, and through other mechanisms, such as universities disciplining students for engaging in the supposed fighting words.

Fortunately, courts have in recent decades read the fighting words exception narrowly, to prevent the punishment of such speech. Likewise, condemning a dead soldier, much as it might offend the soldier's relatives, would not and should not be covered by the fighting words exception. And if it were found to be covered by such an exception, then I'd expect to see the exception grow to include many of the examples I mentioned.

Related Posts (on one page):

Invasion of Privacy and the Freedom of Speech:

The Snyder v. Phelps jury held defendants liable not just for intentional infliction of emotional distress, but also for invasion of privacy. "Invasion of privacy" covers several torts, but the ones alleged here were "intrusion upon seclusion" (because the picketing was outside a funeral, albeit 1000 feet away) and "publicity given to private life" (apparently because of the Phelpsians' statements on their Web site that plaintiff and his wife "raised [the deceased] for the devil," "RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery," "taught him how to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity," and "taught Matthew to be an idolator").

Even if the disclosure tort is constitutionally permissible -- most lower courts have held it is, though the Supreme Court hasn't opined on this -- it has been interpreted quite narrowly, and I don't see anything in this case that involves the sort of disclosure of highly embarrassing personal information (e.g., medical or sexual history) generally required for liability. Both the site and the picketing is offensive because of the viewpoint they express, the harsh language that they use, and their expression of the viewpoint in a way that's personalized to a recently killed soldier -- not because it reveals some embarrassing secrets.

The intrusion upon seclusion tort generally focuses on conduct that is offensive regardless of the message it expresses (the Restatement of Torts illustrations are entering a patient's hospital room to take a photograph over the patient's objection, photographing through someone's bedroom window through a telescope, tapping someone's phone, getting someone's bank records using a court order, and calling someone every day for a month at inconvenient times). The tort is constitutional precisely because it's content-neutral. Here, though, the intrusion stemmed not just from the proximity of the picketing to the funeral -- there must have been a good deal of speech within 1000 feet of the church at which the funeral service was being conducted, and surely one wouldn't call all of it "highly offensive intrusion upon seclusion" -- but also from the message of the picketing.

Applying the intrusion tort here thus raises pretty much the same overbreadth, vagueness, and viewpoint discrimination problems as does apply the emotional distress tort. It may be a little narrower because it at least formally requires some sort of physical proximity with the plaintiffs. But it's also broader because it doesn't even require a finding of outrageousness (only the intrusion's being "highly offensive to a reasonable person"), and in any case the narrowing is pretty slight, if speech within 1000 feet of the funeral qualifies as physical proximity.

And one can easily see how dangerous this tort, if applicable here, could potentially be: It could conceivably lead to massive liability for antiabortion picketing within 1000 feet of abortion clinics (on the theory that people who are going in for emotionally draining and possibly life-altering medical procedures are just as entitled to "seclusion" as people who are going to a funeral). It could lead to massive liability for protests within 1000 feet of churches (including the Phelpsians), mosques, and synagogues, on the theory that people are entitled to "seclusion" in their ordinary religious services as well as in funeral religious services. It could lead to universities' being allowed to punish students for distributing or posting allegedly offensive materials near dorms; and more.

Related Posts (on one page):

The Overbreadth Doctrine and the $10.9 Million Funeral Picketing Case:

I just blogged about why the intentional infliction of emotional distress tort is unconstitutional, at least unless it's limited to otherwise unprotected speech (such as threats or fighting words) -- which it hasn't been. Here I want to explain why it's proper to focus on the constitutionality of the law generally, and not just on whether the Phelpsians' particular (and especially outrageous) speech was constitutionally protected.

As a doctrinal matter, the "overbreadth" doctrine allows such facial challenges to speech restrictions, at least so long as the restrictions are substantially overbroad. Likewise, the "vagueness" doctrine allows facial challenges to vague laws. For the reasons I discussed in my earlier post, the emotional distress tort is indeed substantially overbroad and vague.

And there's good reason for this. First, as I discussed earlier, the emotional distress tort, if upheld, would continue to deter constitutionally protected speech far beyond that which the Phelpsians engaged in, since many speakers could reasonably fear that some jury (or university administrator or judge or other factfinder) will find certain speech "outrageous." As-applied challenges don't suffice to materially diminish this "chilling effect," since many speakers lack the money and -- the tolerance for risk of ruinous liability -- needed to challenge such laws. But by allowing facial challenges, the overbreadth doctrine forces courts and legislatures to narrow overbroad laws, and thus helps minimize the chilling effect.

Second, say that you believe the Phelpsians' speech may indeed be punished on certain grounds, for instance because it condemns a dead person near his funeral. Say that you think the speech is outrageous precisely because of this; and say even that a restriction limited to such speech would indeed be constitutional (more on that later), because the restriction is ideologically neutral, and because it is severely limited in time and place.

The trouble is that the emotional distress verdict gives zero assurance that the jury indeed acted ideologically neutrally, or based entirely (or even chiefly) on the time and place of the speech. Maybe it did act this way -- but it was never told to do so, since it was simply asked whether the speech was "outrageous" and recklessly or deliberately caused severe emotional distress.

The jury could have reasoned the speech was "outrageous" in part because it was harshly unpatriotic, or critical of heroes who fought and died for their country. It could have reasoned the speech was outrageous in part because it was founded on virulently antigay reasoning. It could have reasoned the speech was outrageous in part because it perverted religious (even Christian) thinking for hateful purposes. It could have reasoned the speech was outrageous chiefly because of its message, and not because of its location. And it could have reasoned this entirely consistently with its legal duties, since it was told to decide based on "outrageousness," a concept that is entirely consistent with scrutinizing the viewpoint of the speech, and not just its ideologically neutral offensiveness or its time and place.

So if one thinks that ideological neutrality, and a focus on restricting only speech that is very near a funeral, are what makes punishing the Phelpsians constitutional, one should insist that they be punished under a law that requires juries to decide on these grounds. A decision that simply stems from the jury's finding of "outrageousness," and that could well be based on the viewpoint of the speech, is not a constitutionally sound decision.

Related Posts (on one page):

The Intentional Infliction of Emotional Distress Tort and the Freedom of Speech:

I'm blogging today about the recent $10.9 million verdict against the Phelpsians for their offensive picketing 1000 feet away from a military funeral. Since there are lot of doctrines and questions in play here, I'll try to post separately about several separate aspects of the issue. I should also say up front that I think Phelps' speech (including both its content and the choice of its time and location) is disgusting. The question, though, is whether particular restrictions on this speech -- like restrictions on other disgusting speech -- are consistent with the First Amendment.

Let me begin by focusing not on the Phelpsians' speech, but rather on the laws under which the verdict was entered, starting with the tort of intentional infliction of emotional distress. This tort basically allows recovery when the defendant engages in (1) outrageous speech or conduct that (2) causes severe emotional distress to the defendant, and (3) the defendant intends to cause such distress, or is aware of a high probability that the speech or conduct will cause such distress.

It seems to me that this tort, as applied to speech, is unconstitutionally vague and overbroad. If narrowed by courts to cover only conduct and otherwise unprotected speech (such as reckless falsehoods, threats, "fighting words" [more on these later], and other speech that falls within the exceptions to First Amendment protection), it would be permissible. But until it is so narrowed, it is unconstitutional.

The Supreme Court in fact held the tort unconstitutional as to speech on matters of public concern about public figures, in Hustler v. Falwell. But though the Court had no occasion there to discuss such lawsuits brought by private figures (Falwell, the plaintiff, was clearly a public figure), the Court's reasoning amply applies here:

[I]n the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment... [E]ven when a speaker or writer is motivated by hatred or ill will his expression [is] protected by the First Amendment ....

If it were possible by laying down a principled standard to separate [outrageous speech] from [protected speech], public discourse would probably suffer little or no harm. But we doubt that there is any such standard, and we are quite sure that the pejorative description "outrageous" does not supply one. "Outrageousness" in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression. An "outrageousness" standard thus runs afoul of our longstanding refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact on the audience.

And indeed the Court was absolutely right about the "inherent subjectiveness" of the "outrageousness" standard. I imagine that nearly any jury would find picketing of soldiers' funerals, with signs such as "Thank God for dead soldiers," to be outrageous. But the law would potentially cover much more than such speech -- and, if upheld under the First Amendment, it would apply even in cases where juries aren't involved, such as university expulsion decisions under campus speech codes and the like. Say a university bans posting the Mohammed cartoons on the grounds that they are so "outrageous" that they recklessly inflict "severe emotional distress" on Muslim students (who aren't, of course, public figures). Or say it bans speech that's harshly critical of race-based affirmative action, and suggests that people admitted under such programs are not adequately qualified to be at the university.

Or say a plaintiff sues a newspaper that published a letter to the editor stating, "We can stop the murders of American soldiers in Iraq by those who seek revenge or to regain their power. Whenever there is an assassination or another atrocity we should proceed to the closest mosque and execute five of the first Muslims we encounter. After all this is a 'Holy War' and although such a procedure is not fair or just, it might end the horror. Machiavelli was correct. In war it is more effective to be feared than loved and the end result would be a more equitable solution for both giving us a chance to build a better Iraq for the Iraqis." (I should stress that I find this view repugnant, but it seems to me that it must be protected by the First Amendment.)

In all these cases, a reasonable factfinder could indeed conclude that the speech is "outrageous" and recklessly inflicts "severe emotional distress" on some private figures. You or I might disagree, but we should expect some government actors, whether jurors or university officials, to take such a view. And if the intentional infliction of emotional distress could apply to such speech, then the speech would be effectively stripped of constitutional protection.

Moreover, allowing the punishment of speech under such a vague standard would deter even more speech than would actually be punished. As the Court held in Grayned v. City of Rockford (paragraph breaks added),

Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning.

Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.

Third, but related, where a vague statute "abut[s] upon sensitive areas of basic First Amendment freedoms," it "operates to inhibit the exercise of [those] freedoms." Uncertain meanings inevitably lead citizens to "'steer far wider of the unlawful zone' ... than if the boundaries of the forbidden areas were clearly marked."

All these problems -- especially the deterrent effect ("Third") -- are implicated by the vague "outrageousness" standard.

In the next post -- even if my criticisms of the Intentional Infliction of Emotional Distress tort are generally sound, why not look at the law as applied in this case, rather than looking at the law generally?

Related Posts (on one page):

The Phelpsians' Speech, the Mohammed Cartoons, and the Slippery Slope:
Where's the State Action in Tort Awards Based on Speech?
Jury Discretion, Viewpoint Discrimination, and the Size of the Snyder v. Phelps Compensatory Damages Award:
Funeral Picketing and Residential Picketing:
The Phelpsians' Picketing and Fighting Words:
Invasion of Privacy and the Freedom of Speech:
The Overbreadth Doctrine and the $10.9 Million Funeral Picketing Case:
The Intentional Infliction of Emotional Distress Tort and the Freedom of Speech:

Presidential Candidate Selector:

Who should you support for President? The Presidential Candidate Selector quiz is here.

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Another Presidential Selection Quiz:
Presidential Candidate Selector:

Interested in Teaching Public Choice and The Law?

Maxwell Stearns and I are developing a new course book, Public Choice Concepts and Applications in Law. We are planning to publish the book (with West) in early 2009 and are looking for volunteers who might be interested in teaching some or all of the chapters during the Spring 2008 or Fall 2009 Semesters. The book will be configured to be taught as a stand alone course or seminar in "Public Choice and the Law" either as a substitute or complement to a traditional Law & Economics course. But we'd also welcome those who might like to teach some of the chapters as part of other courses.

By January we anticipate having about 7-8 chapters, which comprise the first two parts of the three part book (part I: theory; part II: government institutions; part III specific topics), in draft form prior to or during this coming Spring term. We would be very pleased if anyone teaching a course for which such chapters might be helpful this Spring were willing to consider using these chapters in draft form. Our only request is that we receive feedback so that we can benefit from such use as we work the book toward eventual publication with West. We'd especially welcome comments from those who may have specifically written in some of the fields described below on the intersection of law and public choice.

Thus far we have working drafts of the opening theoretical chapters:

Chapter 1: Introduction to the Economic Analysis of Collective Decision-Making;

Chapter 2: Interest Group Theory and Rent-Seeking;

Chapter 3: An Introduction to Social Choice;

Chapter 4: Elementary Game Theory.

While these are clearly works in progress, we continue to work on them and they will be usable in the Spring term.

In addition, we are working toward having the following chapters from part II to use in the Spring:

Chapter 5: The Legislature;

Chapter 7: The Judiciary;

Chapter 8: Constitutions.

We might also have Chapter 6: the Executive Branch by some time mid spring.

We are also willing to make these available to those teaching similar courses at other institutions, so please do not hesitate to pass this along if you think it could be of value to others.

If you are interested in seeing any of the chapters, commenting on them, or teaching them during the next year, please get in touch with Max Stearns who can send you all or some of the chapters you may desire. Max is now teaching at University of Maryland School of Law and can be reached at MStearns [at] law [dot] umaryland [dot] edu .>

Verizon FIOS Update:

I blogged before about how much easier it was to get FIOS internet than Comcast Internet. However, while my internet service has been excellent, Verizon is losing a lot of my good will due to its billing customer service. I won't go through all the gory details, but Verizon hasn't responded to emails, when I call their billing number I'm put on hold, then told that because I ordered online I need to talk to their internet sales "people" because the regular billing people don't have access to the same information they do, then put on hold again when transferred, then disconnected. I then call back, and am told that the system is down to call again tomorrow. When I call again, I get put on hold for a while, and then again disconnected, and then busy signals.

Four Models: I see that the secretive and powerful movement to think of all constitutional amendments in terms of four models — and then, importantly, to focus on why no one model can work and the merits of using different models in different contexts — has taken on new life with a recent lecture by Mark Tushnet. [Insert Vincent Price laughter here.] In all seriousness, the basic aproach has been around for a while; still, having recently been working on the last stages of editing to my Fourth Amendment paper, it's really interesting to see Tushnet's approach in the First Amendment context.

Confessions of a Waterboarder:

A reader passes along this link to a discussion of waterboarding by Malcolm Nance at Small Wars Journal. Nance appears to have much more knowledge of waterboarding, and how it has been utilized in military training, than most who opine on the subject. It seems to me his perspective should be taken quite seriously. He writes:

As a former Master Instructor and Chief of Training at the US Navy Survival, Evasion, Resistance and Escape School (SERE) in San Diego, California I know the waterboard personally and intimately. SERE staff were required undergo the waterboard at its fullest. I was no exception. I have personally led, witnessed and supervised waterboarding of hundreds of people. It has been reported that both the Army and Navy SERE school’s interrogation manuals were used to form the interrogation techniques used by the US army and the CIA for its terror suspects. What was not mentioned in most articles was that SERE was designed to show how an evil totalitarian, enemy would use torture at the slightest whim. If this is the case, then waterboarding is unquestionably being used as torture technique.

The carnival-like he-said, she-said of the legality of Enhanced Interrogation Techniques has become a form of doublespeak worthy of Catch-22. Having been subjected to them all, I know these techniques, if in fact they are actually being used, are not dangerous when applied in training for short periods. However, when performed with even moderate intensity over an extended time on an unsuspecting prisoner – it is torture, without doubt. Couple that with waterboarding and the entire medley not only “shock the conscience” as the statute forbids -it would terrify you. Most people can not stand to watch a high intensity kinetic interrogation. One has to overcome basic human decency to endure watching or causing the effects. The brutality would force you into a personal moral dilemma between humanity and hatred. It would leave you to question the meaning of what it is to be an American. [links omitted]

More here from Ed Morrissey.

UPDATE: Apparently Nance will soon testify at a Congressional hearing on U.S. interrogation techniques.

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News flash:

The Muttonhead Quail has been found:

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Oprah banishes "The Education of Little Tree"

Oprah Winfrey has removed the book "The Education of Little Tree" from her book website, which is one of the most influential book-selling sites in the world. "The Education of Little Tree," published in 1976, purports to be the autobiography of an Indian child who is raised by his grandparents. As it turns out, the book was written by Asa Carter, a pro-segregation racist who wrote speeches for George Wallace. Carter later wrote "The Rebel Outlaw Josey Wales," a novel which became a successful movie.

My father, Jerry Kopel, met Asa Carter when they were first year pre-journalism students at the University of Colorado in 1948. A 1998 column by my dad looks at the paradox of a man who was a virulent racist, yet who was also deeply proud of his real-life Indian grandfather. Did writing "Little Tree" provide Carter with some redemption for the terrible things that he did in the 1950s and 1960s? My father hopes so.

Flag Desecration:

I hope to blog in a few days about the $10.9 million intentional infliction of emotional distress / invasion of privacy verdict against the Phelpsians. But for now, here's more on another Phelpsian case:

Security was tight Monday as [Shirley Phelps-Roper] appeared in Sarpy County Court to answer charges that she mutilated a flag and put her child in danger while protesting at the funeral of a Bellevue soldier....

According to Bellevue police, Phelps-Roper had her 10-year-old son stomp on an American flag....

The pretrial hearing centered on a defense motion requesting that the prosecution describe in detail the facts that support the charges, which include disturbing the peace, contributing to the delinquency of a minor and negligent child abuse.

Her attorney, Bassel El-Kasaby, argued that without specifics on what actions broke the law in each case and who was victimized, he can't prepare his case.

"I don't think you can disturb the peace of a police officer or firefighter," he said.

He said it was "unorthodox" and potential "overreaching" by prosecutors to charge Phelps-Roper with contributing to the delinquency of a minor and negligent child abuse....

Deputy Sarpy County Attorney Marc Delman resisted El-Kasaby's request, saying he didn't want to limit the basis for the charges.

Delman told the judge that Phelps-Roper had "cleanly, openly and notoriously" made her son step on an American flag while her church protested at the funeral of William Bailey....

Well, stepping on an American flag is pretty clearly constitutionally protected speech, no less than flying a flag or burning a flag — and we're allowed to speak "cleanly, openly and notoriously," even when others are offended. We're even allowed to teach our children to engage in such speech. (I suppose that if there's some claim that the child's actions would expose him to serious risk of violent retaliation, the matter might be different, though that's far from clear; but in any case I've seen no evidence that the Phelpsians' many foes would beat up a 10-year-old boy for stepping on a flag.) The flag mutilation charge strikes me as obviously unconstitutional, following Johnson; the other charges nearly as obviously so.

In any case, "Sarpy County Judge Todd Hutton told both sides he wants written arguments on whether the prosecution should specify in more detail the actions that support the charges." Thanks to Edward Still for the pointer.

Decanal Finalists at Minnesota:

For the past six months, I've been serving on the University of Minnesota Law School's dean search committee. We've now announced the five finalists for dean. In alphabetical order, they are:

Nora Demleitner, Interim Dean and Professor of Law, Hofstra Law School

Gregory Hicks, Interim Dean and Professor of Law, University of Washington Law School

Edward Larson, Professor of Law, Pepperdine Law School

Leon Trakman, Immediate Past Dean and Professor of Law, University of New South Wales

David Wippman, Vice Provost for International Relations and Professor of Law, Cornell University

It's an outstanding group of scholars and law school leaders. We hope to have a decision made by the end of the year, and have the new dean ready to start on July 1, 2008.

UPDATE: The law school has an announcement of the finalists, with more details, here.

Poetry About Law:

If you share my interest in this, and know Russian, check out Yuliy Kim's The Lawyer's Waltz, which I just heard a week ago and much liked. It was written about lawyers who defended Russian dissidents, but setting aside one detail, it can equally well work about defense lawyers generally -- whether as praise, or just as reflection of their perspective even if one doesn't share it. If anyone has a pointer to an online sound file for the song, please pass it along; hearing this is better than just reading it. Likewise if anyone has a pointer to a good translation, though of course like all metered and rhymed poetry, this would be very hard to translate.

Incidentally, I've long been surprised by how little good poetry there is about law -- real poetry (whether serious or not), and not just doggerel. The only material I've found so far in English is Auden's Law Like Love, Auden's The Hidden Law, and Kipling's Law of the Jungle. If you have more suggestions, please post them in the comments.

Best Law Blog Race Down to a 25-Vote Margin:

Yes, I've been bitten by the bug.

Chessboxing:

"Victory is by knockout, checkmate or resignation, or failing any of those, by points-based scoring system." Thanks to GeekPress for the pointer.

Who's Your Inner European?

Check it out. Oddly enough, mine is French. Merde.

Public Notice of Pending Appellate Cases: Brett Kavanaugh's comments about the role of amici and online commentary reminds me of an idea I've occasionally mulled to provide public notice of pending appellate cases. Here's the issue: If amicus briefs or online commentary can help judges decide particularly tricky cases, should the Federal Rules of Appellate Procedure require appellants to formally state the "Questions Presented" by their appeal at some period before the brief is due, or at least before amicus briefs are due, in order to notify potential amici and other commentators that an appellate court is going to resolve those issues?

  The problem is that under current law, it's actually pretty hard for the public to find out about interesting and important appellate cases and then to weigh in in a timely way. FRAP Rule 28(a)(5) requires appellants to present "a statement of the issues presented for review" as a section of their opening brief. But those statements are hard to find: they are just part of the brief, not separate documents that are easily found and searchable. And FRAP 29(e) gives potential amici very little time to file briefs after reading about a case that raises an important issue. The rule states: "An amicus curiae must file its brief, accompanied by a motion for filing when necessary, no later than 7 days after the principal brief of the party being supported is filed. An amicus curiae that does not support either party must file its brief no later than 7 days after the appellant’s or petitioner’s principal brief is filed." It's very difficult to conceive, draft, and submit a brief in such a narrow window (even assuming you learned of the case the day the brief was filed). Unless you learn of the opening brief and you want to file an amicus brief in support of the appellee, you're pretty much out of luck.

  Why does this matter? It means that potential amici and other subject matter experts usually don't find out about major litigation until the day the appellate opinion is published. Unless a litigant brings attention to the case, or unless the case has a high profile for another reason, it's actually pretty hard to know which issues are "on deck" in the federal court of appeals. It's true that interested parties can watch district court opinions and look for interesting issues. But only a subset of interesting issues decided at the district court level are appealed: An interested party would need to contact the lawyers in the case and follow the litigation to know whether and when the legal question is likely to come up in the Court of Appeals. This doesn't happen too often.

  If it's true that judges benefit from amicus briefs and online commentary about their cases, why not have the commentary before the decision is published rather than after? The problem is simply one of notice; the public can't participate if they don't know the issue is being addressed. One solution could be to require appellants to file a document informing the appellate court of the "Questions Presented" (QP) by their appeal. They could be required to file the QP 30 days before their opening brief is due, and the QP could go into an online database that potential amici and other commentators could easily search to find notable cases that they could comment on or in which they could file amicus briefs. The idea would be to offer public notice that an appellate court is likely to resolve an important legal question.

  Of course, most federal appeals do not involve any important legal questions. Most are straightforward if not borderline frivolous. But some aren't, and there should be a way to provide public notice of important cases. I'm not sure if requiring "Questions Presented" is the best way to go; it's not a perfect answer, and perhaps there are better ones. But the existing Federal Rules of Appellate Procedure overlook public notice, and I don't think they should.

If I'm Not Mistaken, these comments by D.C. Circuit Judge Brett Kavanaugh create a 1-1 circuit split between the D.C. Circuit and the Ninth Circuit on the relevance of Howard Bashman.

Facebook group:

I invite everyone to join the Muttonhead Quail Movement group on Facebook.

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Professor Glendon to the Vatican:

President Bush will nominate Harvard Professor Mary Ann Glendon to be Ambassador to the Vatican.

Advice, Consent, and Statutory Qualifications:

This is the third in a series of posts about my paper, The Two Appointments Clauses: Statutory Qualifications for Federal Officers Sorry for the blogging hiatus; I had an unexpected confluence of deadlines. Fortunately, I managed to meet them all, and I can get back to the fun stuff in life, namely blogging.

Our Constitution is one of limited and enumerated powers. Thus, the first question is whether the Constitution grants Congress the power to impose statutory qualifications for federal officers, not whether anything affirmatively prevents Congress from doing so. An obvious first place to look is in the text of the Appointments Clauses themselves.

Let's look first at the Confirmation Appointments Clause. That clause states that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint" officers. One might argue that imposing a statutory qualification is a form of advice and consent. But this is wrong, for several reasons.

A statutory qualification is binding, not advisory. Laws generally tend to be mandatory unless they state otherwise (as in, for instance, a law granting a discretionary power to an executive official). And certainly the language of actual statutory qualification laws looks mandatory, using phrases such as, "shall be a citizen of the United States." Since a statutory qualification imposes a mandatory limit on whom the President may appoint to office, it does not count as "advice."

But wait a minute. "Advice" can't be binding, but "consent" certainly is. Without the consent of the Senate, the President cannot appoint an officer through the Confirmation Appointment method. Maybe statutory qualifications are a form of consent.

This second argument runs into two problems. First, consent is generally understood as occurring after a specific proposal has been floated. That is, the President nominates an individual for office, and then consent is granted or denied. If it's denied, the process starts over: the President proposes another candidate, and the Senate again decides whether to consent or not. It is a bit strange to pass a law in advance that categorically rules out certain potential nominees, and to call that law a form of "consent."

The second problem is that viewing statutory qualifications as a form of consent (or advice, for that matter) under the Advice and Consent power conflates two distinct entities: Congress and the Senate. The Advice and Consent power is given to the Senate. But statutory qualifications, being statutes, must be passed by both houses of Congress (and additionally, must be signed by the President or passed over his veto). The Senate and House often have to compromise to get a statute passed through both houses. Any given statutory qualification might well have been added to a bill at the insistence of the House of Representatives, against the will of the Senate but agreed to reluctantly. Is it really fair to call such a measure the consent of the Senate?

In a later post, I will discuss more of the structural implications of involving the House of Representatives in appointments. But before I get to that, my next posts will examine the text of the Vested Appointments Clause and the Necessary and Proper Clause to search for other textual foundations for the power to impose statutory qualifications.

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As They Think Proper:
Advice, Consent, and Statutory Qualifications:
Statutory Qualifications
Two Appointments Clauses:

The Muttonhead Quail Movement:

"[P]ossibly the most unfortunate spell-check blunder I've ever seen," reports a Reuters editor. The error: A line in a May 14, 2007 Reuters story about Pakistan, "The opposition blames the government and the pro-government Muttonhead Quail Movement (MQM), which runs Karachi, for the violence." In reality, "MQM does not stand for Muttonhead Quail Movement, but Muttahida Quami Movement."

Thanks to Language Log for the pointer.

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News flash:
Facebook group:
The Muttonhead Quail Movement:

Last Week's Divided Habeas Decision in the Sixth Circuit:

Last Friday, a divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit decided Morales v. Mitchell, yet another in a long line of divided habeas decisions from my home circuit. As with many of the divided habeas panels, the case concerned the habeas petition of a death row inmate and the panel divided on somewhat predictable ideological lines.

Here is the basic background, as summarized by Judge Karen Nelson Moore in her majority opinion.

Petitioner-Appellee/Cross-Appellant Alfred Morales (“Morales”) was convicted of kidnapping and aggravated murder in an Ohio state court and sentenced to death. He petitioned the district court for a writ of habeas corpus, arguing, inter alia, that his trial counsel was constitutionally ineffective and that the trial court erroneously struck a potential juror from the panel. The district court granted the petition, in part, vacating Morales’s death sentence on the ground that his trial attorney had rendered ineffective assistance of counsel (“IAC”) at the penalty phase of the trial.

Respondent-Appellant/Cross-Appellee Betty Mitchell (“Mitchell” or “the state”) now appeals the district court’s issuance of the writ. Morales crossappeals the district court’s denial, in part, of his petition on the grounds that his counsel was not ineffective at the guilt phase of the trial and that the trial court did not err in striking a juror that it found was not death-qualified and lacked an adequate understanding of the proceedings.

Joined by Judge Clay, Moore affirmed the decision of the district court granting Morales' habeas petition in part.

Judge Suhrheinrich dissented, arguing that Morales could not show that he suffered any prejudice from his defense counsel's failure to present additional mitigating evidence at the penalty phase, in large part because such evidence would have been "cumulative" with evidence already presented at trial. Absent a showing of prejudice, Suhrheinrich concluded, Morales could not show that he suffered from the ineffective assistance of counsel, as a matter of law.

More on Waterboarding and the Office of Legal Counsel: I appreciated Jonathan Adler's link on Saturday to the remarkable ABC News story about Dan Levin, then the acting head of DOJ's Office of Legal Counsel, who underwent waterboarding and concluded, as Jonathan noted, that "waterboarding could be illegal torture unless performed in a highly limited way and with close supervision . . . [that] the Bush Administration had failed to offer[.]"

I just wanted to draw extra attention to the rest of the ABC News story, as it has other parts that struck me as the real news here:

In December 2004, Levin released the new memo. He said, "Torture is abhorrent" but he went on to say in a footnote that the memo was not declaring the administration's previous opinions illegal. The White House, with Alberto Gonzales as the White House counsel, insisted that this footnote be included in the memo.
But Levin never finished a second memo imposing tighter controls on the specific interrogation techniques. Sources said he was forced out of the Justice Department when Gonzales became attorney general.

It seems that the real story is that "the White House" actually "insisted" on essentially drafting part of an OLC opinion, and that the person who was drafting a second memo limiting the practice was fired before the follow-up memo could be released. That story deserves wider attention; I hope we'll hear more about this.

Stem Cell Vote in New Jersey:

[In conjunction with the release this month of my new book, Stem Cell Century: Law and Policy for a Breakthrough Technology” (more info here), I’ll be blogging about policy issues related to stem cell research and regenerative medicine occasionally over the next several weeks.]

Election season in the 21st Century seems to inevitably bring a battle over stem cell research, and 2007 is no different. Tomorrow, New Jersey residents will vote on a proposal to issue $450 million dollars in bonds over the next 10 years to fund stem cell research, a plan quite similar in design to California’s Proposition 71, the enactment of which in 2004 provided $3 billion in state funding over a decade. (Although frivolous legal challenges delayed the implementation of Prop. 71, appeals were exhausted in May and California’s stem cell agency is now providing funding in earnest.) Along with $270 million that New Jersey has already authorized to build five stem cell research facilities, tomorrow’s initiative, if passed, would make that state’s financial commitment to stem cell science second only to California’s in size, putting the Garden State’s effort comfortably ahead of New York’s and increasing the distance between it and far smaller financial commitments made by handful of other states including Connecticut, Maryland, and Illinois.

The race among states to publicly fund stem cell research is a response, of course, to President Bush’s prohibition on the use of federal funds to support research on any human embryonic stem cell lines derived from embryos after August 9, 2001. But even assuming that it is not immoral to destroy 5-day old embryos in the cause of medical research, that embryonic stem cells have particularly valuable therapeutic potential, and that the Bush funding policy is internally illogical (future posts will explain why all three of these claims are correct), it isn’t altogether clear whether it makes sense for the citizens of New Jersey to step into the funding void. At the end of the day, if I lived in New Jersey I would vote in favor of tomorrow’s bond initiative, but let me explain why even strong supporters of biomedical research generally and stem cell research specifically might rightly hesitate.

If it were possible for private firms to capture all the gains from basic biomedical research, through patents, for example, public funding would not be required in the first place, because private capital would fund all research projects with a positive expected value. It is the belief that basic research has significant positive spillover effects that are difficult to capture that justifies public funding. If public funding is justified by this reasoning, it follows that individual states face a collective action problem. The scientific benefits created by the expenditure of New Jersey tax dollars will benefit all Americans – indeed, people all over the world. Why should New Jersey foot the bill and let everyone else free ride? For an economy as large as that of the United States, the potential benefits that basic science can create for its citizens alone can justify support of a public good, even if others can free ride. But this seems much less likely to be true for a single, medium-sized state.

By supporting stem cell research, New Jersey can signal its voters’ unhappiness with the Bush funding restrictions, but this seems an unconvincing reason to vote yes, because polls can also – and do – show that Garden State residents support embryonic stem cell research. A better reason to vote for the initiative is that, in the federal funding vacuum, state funding can entice not only top academic researchers to a state, but also the biotech companies that tend to cluster around top research universities. This means, potentially, thousands of relatively high-paying jobs in a “clean” industry. And by attracting stem cell researchers, New Jersey could potentially serve as a coordination point for related biotechnology and health-care related industries. How much of a return will the investment provide for New Jersey? To say the answer is uncertain would be an understatement. The projections that have been published ($2 billion is bandied about by supporters of the bill) are hardly better than wild guesses. Direct tax revenues and potential revenue-sharing from the developers of blockbuster inventions will return only a small portion of the expenditure to state coffers. The payoff depends primarily on how much private investment the public investment generates.

The potential benefit to the state’s biotechnology industry seems substantial enough to justify a relatively modest annual investment of $45 million, and, as a non-resident, I certainly hope the good people of New Jersey agree and vote “yes.” But two concerns would still nag at me were I a New Jerseyan. First, given New Jersey’s position in the state stem cell race, the marginal value of this particular investment is even less clear than the value of its total investment. With a $270 million investment in infrastructure already made, New Jersey is already a player in stem cell research, and, at the same time, $450 million more will not be enough for it to compete for biotechnology with California on the basis of public expenditures alone. Second, if Rudy Giuliani, John McCain, or any of the Democratic candidates win next year’s presidential election, federal funding restrictions will be loosened substantially, causing state support to be less important. It is unclear whether New Jersey’s investment will be big enough, or early enough, to capture the benefits envisioned.

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Happy Guy Fawkes Day!

Guy Fawkes, Guy Fawkes,
'twas his intent
to blow up the King and the Parliament.
Three score barrels of powder below,
Poor old England to overthrow:
By God's providence he was catch'd
With a dark lantern and a burning match.

Holloa boys, holloa boys, make the bells ring.
Holloa boys, holloa boys, God save the King!
Hip hip hoorah!

My thoughts on the day, from a 2001 NRO column, are here. Actually, my NRO article is less about the Guy Fawkes case itself than about A Treatise of Equivocation and juror nullification.

Some background on English Catholics' legitimate resistance to government efforts to stamp out their religion are in this article, on Nicholas Owen, the great builder of hiding places for priests.

To state the obvious, the Gunpowder Plot was counterproductive to efforts to protect the religious freedom of English Catholics.

Congratulations to the George Mason Class of 2007:

Over 90% of George Mason students who took their first Virginia bar exam last Summer passed, besting in-state competitors William & Mary, Washington & Lee, University of Richmond, and, for the first time, the University of Virginia. (Last year, our students beat everyone's but Virginia's). And yes, George Mason is a "national" law school that gives no special weight to Virginia law in our standard courses.

Vote Early and Often:

Voting for the 2007 Weblog Awards is open. The Conspiracy was nominated for "Best Law Blog." Under the rules, you are allowed to vote once for each category every 24 hours, so you can vote again if you have not yet voted today. I am not saying you should necessarily vote for the VC. Other deserving blogs were nominated too. Of course, if you'd like to vote for the VC, don't let me stop you. However you vote, I recommend checking out the finalists for other categories as well. You might find some new blogs to visit. I did.

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Vote Early and Often:
2007 Weblog Awards:

Catspaw:

Ever use a word thinking it's commonplace, only to learn from listeners' blank looks that it's obscure? Just happened to me in class Friday with "catspaw." It surprised me, though quick Nexis and Google searches confirm that it is indeed pretty uncommon; I found only about 15 references, setting aside proper names, in all Nexis-accessible 2006 newspaper articles. Google reports 200,000 references, about the same as for "dogsbody" (which I knew was obscure), but many of those seem to be to proper names, cat's paws, and cat's paw mussels. Don't know why I thought the word was relatively normal.

More about vampires:

In my last post about vampires, I recommended Paul Bibeau's Sundays with Vlad: From Pennsylvania to Transylvania, One Man's Quest to Live in the World of the Undead.

I've now finished the book, and here are a couple more funny snippets:

"I was having parties, orgies with hot Dutch girls, and going to England on weekends," [said Father Sebastiaan, a creator of the vamp club scene]. "One day I went to a music festival and did so many drugs I woke up in Sweden." (p. 155)

The following is about Tray White, a documentary filmmaker who covered the Minnesota gubernatorial campaign of vampire satanist (and impalement advocate) Jonathon Sharkey:

"At first I wanted to pull all these crazy-ass pranks on him," White says. "I wasted a couple of days just fucking with him, making up names and saying, 'So Sir Furrington of East Timor has threatened to nuke the state of Vermont. If you were president right now what would you do?' He'd start talking about how he was going to feed off the children of Sir Furrington." White threw in Thom Yorke, the name of the lead singer of his favorite band, Radiohead. He pretended Yorke was a political leader in Britain who had said he would invade the state of Minnesota.

"I have him on camera saying, 'I'm going to kill Thom Yorke.'" . . .

"He kept saying he was going to kill George Bush," says White. "I told him, 'Okay, dude, you can't say that. You can say when you're elected, you're going to try George Bush, and once he's found guilty, then you're going to impale him . . ." He doesn't know how much good it did. (pp. 172-73)

And finally, discussing an article called "To the Parents of a Sanguinarian," which is "filled with tips for a parent whose child has just come out of the closet as a vampire":

This makes me have a flash of my son growing up and having the Most Uncomfortable Conversation Ever with him.

Son: I want you to know something about me.

Dad: I think I know what you're going to say, and I want you to know, it's all right. Your mother and I love you just as you are. There's nothing wrong with being gay.

Son: I'm a vampire.

Dad: (Pause) There's nothing wrong with being gay.

Son: I'm not gay, Dad. I'm straight. But I have a need for fresh human blood.

Dad: (Longer pause) You and your boyfriend are always welcome to come home, and I want you to know . . .

Son: I don't have a boyfriend. I have a girlfriend. She's a dental hygienist, and she's Type O Positive. Dad, we're vampires, and we're happy together. We drink each other's blood. Vampires, Dad.

Dad: Couldn't you just try to be gay? For your mother?

This concludes my plug for the book. The author, Paul Bibeau, also points out that he has a new blog, The Dracula Innocence Project. "Was Dracula framed? Why did a small group of people chase a terrified Transylvanian dignitary through the streets of London, and fatally run him through with a blade? We'll examine the evidence. You be the judge." Check it out!

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Advocacy Matters -- Last Blog

These final set of comments are, like the earlier ones, thoughtful and helpful. I had not previously seen debated the anonymous petition/brief issue. There was only one comment that I recall that posed a specific question back to me, which I will try here to respond in this final blog.

The question concerned the percentage of cases on the Court's docket that were "test cases." My impression is that relatively few cases fit that description. But it certainly does happen. The abortion cases in response to a recently enacted restriction on abortions tend to be test cases. Everyone knows from the outset that the case has a good chance of going up. The same is true for cases like the campaign finance law, or the latest iteration of a federal child pornography statute.

Two examples of organizations that come to mind as having been effective in working in the lower courts to develop a good “test” case for Supreme Court review in furtherance of their policy agenda are Jay Sekulow’s organization, the American Center for Law and Justice, and the Pacific Legal Foundation. Both these organizations have at times been effective at choosing carefully the specific case, based on the facts and legal issues raised, that can serve as a favorable vehicle for establishing the precedent they hope to obtain from the Court.

But, if you look at the Court’s docket, these kinds of test cases are the exception. Even when folks know that the Court is interested in a particular subject matter, the odds of any one case being the case that ends up there is sufficiently remote that the impact on how the lower court attorneys litigating the case tends to be minimal. The private sector leaders of the Supreme Court Bar are, at least so far, insufficiently involved in the lower courts to play that role, so one is more likely to see it in liberal or conservative organizations, following Marshall’s Inc. Fund model, who have a particular focus on the Supreme Court.

Again, thanks for the comments.

"Jihad and Jew-Hatred":

My recent post about a lecture by Dr. Matthias Kuentzel on the connection between Naziism and modern Islamic radicalism garnered a lot of interests from readers, so I thought I'd mention that Kuentzel's book, Jihad and Jew-Hatred: Islamism, Naziism and the Roots of 9/11, has now been officially released, though Amazon doesn't have it in stock yet. An extensive and very interesting review can be found here. I'm far from an expert on this topic, so it will be interesting to see how the book is received by those who are.

Federalist Fred:

Senator Fred Thompson appeared on NBC's "Meet the Press" this morning. The transcript is here. One thing I found notable about the interview was Thompson's explicit commitment to federalist principles. Here is how he described his views:

I think people ought to be free at state and local levels to make decisions that even Fred Thompson disagrees with. That’s what freedom is all about. And I think the diversity we have among the states, the system of federalism we have where power is divided between the state and the federal government is, is, is—serves us very, very well.

Many politicians say such things. President Bush, for one, spoke quite a bit about the need for state flexibility when he was a Governor and a candidate, but seems to have forgotten about such things over the past six years. It appears Thompson actually means it, however, as he stuck to his federalist guns even when confronted with issues where many "conservatives" abandon federalism and embrace federal power. He even endorsed state autonomy where such a position meant rejecting policy positions favored by significant portions of the GOP base.

On abortion, for example, Thompson said that he believes that life begins at conception, and that Roe v. Wade was wrongly decided and should be overturned. Yet he further stated that he opposes a constitutional amendment prohibiting abortion and the language endorsing a federal prohibition in the 2004 GOP Platform.

Similarly, on gay marriage, Thompson said that he believes "marriage is between a man and a woman," but stops short of endorsing a constitutional amendment to prohibit gay marriage. Rather, Thompson said he supports an amendment to prevent the imposition of gay marriage by the judiciary, but that state legislatures should be free to recognize gay marriage if such a policy is supported by the people of a given state. As I understand it, Thompson's position is essentially that outlined by Michael Greve, and which would provide a constitutional backstop to the Defense of Marriage Act, but would not prevent states from making their own choices about gay marriage.

I have no idea whether Thompson's positions will help or hurt his electoral chances. But I also suspect I am not the only one who finds this apparent commitment to principle refreshing.

Vallodid debate bleg

1550, Spain's King Charles V, after hearing arguments in the Vallodid debate, decided that Indians could be enslaved and exploited with few humanitarian limitations.

Could a kind commenter please supply me with a cite for the above statement? I know there's stuff about Vallodid on the web, but I need a published book or scholarly journal article, for law review citation purposes. Thank you.

Mankiw's "True but Misleading" Health Facts:

Former Bush economic adviser Gregory Mankiw discusses three "true but misleading statements about health care that politicians and pundits love to use to frighten the public."

1. The United States has lower life expectancy and higher infant mortality than Canada, which has national health insurance.

2. Some 47 million Americans do not have health insurance.

3. Health costs are eating up an ever increasing share of American incomes.

According to Mankiw, these statements are "dangerous" because they are true, yet "don’t mean what people think they mean." He concludes: "we should be careful not to be fooled by statistics into thinking that the problems we face are worse than they really are."

"Waterboarding Used to Be a Crime":

Judge Evan Wallach -- former JAG, renowned expert on the law of war, and designer of this web site on the subject -- provides a history lesson on the U.S. government's treatment of waterboarding in today's Washington Post:

The United States knows quite a bit about waterboarding. The U.S. government -- whether acting alone before domestic courts, commissions and courts-martial or as part of the world community -- has not only condemned the use of water torture but has severely punished those who applied it. . . .

We know that U.S. military tribunals and U.S. judges have examined certain types of water-based interrogation and found that they constituted torture. That's a lesson worth learning. The study of law is, after all, largely the study of history. The law of war is no different. This history should be of value to those who seek to understand what the law is -- as well as what it ought to be.

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Friday, November 9, 2007

Thursday, November 8, 2007

Wednesday, November 7, 2007

Tuesday, November 6, 2007

Monday, November 5, 2007

Sunday, November 4, 2007