Saturday, November 24, 2007Eco-Friendly Bird Killer?
Emory University's Math & Science Center is a LEED-certified, environmentally sound building. Yet portions of the $40 million building are now draped with black mesh netting because the building is allegedly responsible for killing birds — as many as two per day — that fly into the glass. UPDATE: See also Jim Chen's post here. Michigan AG on Second Amendment Case:
In yesterday's WSJ, Michigan Attorney General Mike Cox argues the Supreme Court should embrace an individual rights interpretation of the Second Amendment. The significance of this article is less its contents -- the article summarizes some of the standard constitutional arguments in favor of the individual rights view -- than its author: Michigan's chief law enforcement officer. the article also addresses some of the practical arguments in for rejecting the District of Columbia's position.
Justice, Saudi Style:
In Saudi Arabia, a 19-year-old woman is sentenced to 200 lashes. Her crime? She had been sitting alone in a car with a man who was not her husband when the two were abducted and raped by a gang of seven men. Had she not been raped, her "crime" would not have been prosecuted. Were that not obscene enough, now it seems her attorney will lose his law license for handling her defense too aggressively. Related Posts (on one page):
Friday, November 23, 2007Paul Cassell Reflects:
The Deseret Morning News has a fascinating profile of Paul Cassell, who recently resigned his district court judgeship to return to academia. Just a taste:
Cassell said he found himself questioning some laws at each turn. "I felt like it was proper judicial role to ask questions, even if we weren't necessarily charged with fixing the problem," he said. But he wanted to do more — he wanted to make a change. Being a federal judge, he couldn't do that.Thanks to Doug Berman for the link. Incidentally, Cassell is one of five federal judges with superlative academic credentials who recently resigned or announced plans to resign either after only a short period of service or when still relatively young. I believe Cassell is now 47, and he resigned in 2007 after 5 and 1/2 years of service. The other four are Mark Filip (41, served for 3 years, now a nominee to become Deputy AG), David Levi (resigned in 2006 at the age of 55 after 17 years on the bench to become Dean of Duke), Michael Luttig (resigned in 2006 at 51 after 15 years on the bench to become GC of Boeing), and Michael Chertoff (resigned in 2005 after 2 years at age 53 to become Secretary of Homeland Security). D.C.'s Handgun Ban and the Constitutional Right to Arms: One Hard Question?
Prof. Nelson Lund, of George Mason, is one of the leading conservative legal scholars writing in support of a meaningful Second Amendment. Unlike, for example, most of the VC writers, Lund's legal philosophy has hardly any libertarian influence. (For example, Lund argues that Pierce v. Society of Sisters was wrongly decided, as are all its progeny, the "substantive due process" cases.) Lund's latest article on the Second Amendment, will appear soon in a symposium issue of George Mason University Civil Rights Law Journal. Here's part of the abstract of the thought-provoking article, which addresses an argument that, as the cert. petitions have already shown, will be a key part of the Fenty administration's attempt to preserve the D.C. handgun ban: One way to attack the D.C. Circuit [Parker] decision is to argue that the Second Amendment protects the private possession of weapons only to the extent necessary to preserve in civilian hands a stock of weapons suitable for use while serving in the militia. Rifles and shotguns would be the most obviously useful weapons for militiamen to bring with them from home, and the D.C. statute permits civilians to possess rifles and shotguns, along with the ammunition these weapons require. Why does this not satisfy the Second Amendment? Ron Paul, Racism, and Federalism:
As co-blogger David Bernstein discusses here, Ron Paul's statement on racism claims that "it is the federal government that most divides us by race, class, religion, and gender." As I have argued in great detail here, the federal government's record on racism is not as good and that of the states not as bad as is often supposed. For much of American history, the federal government facilitated rather than combatted slavery and (later) Jim Crow. For example by imposing southern-style segregation in the District of Columbia, the one part of the US where the federal government enjoyed virtually unlimited lawmaking authority even before the New Deal. Prior to the modern civil rights movement, blacks probably benefitted from federalism in so far as it permitted northern and western states to pursue more liberal racial policies than Congress would likely have imposed had it enjoyed the same degree of control nationwide as it did in DC. As I have discussed in various articles (e.g. - here and here), federalism enabled many southern blacks to "vote with their feet" and move to relatively less hostile jurisdictions. Nevertheless, Paul's claim that the feds are principally responsible for racism and racial division cannot possibly be sustained. It was, after all, state governments that took the lead in defending slavery, segregation, and other forms of discrimination against blacks and (in the Western states) Asian-Americans. As David notes, Paul's statement on racism mostly targets modern affirmative action and racial preferences, while ignoring traditional racism against minorities. Even these policies, however, are much more common at the state and local than the federal level. Most government-created affirmative action preferences involve state and local government contracting or admissions policies at state universities. I don't agree with Paul's implication that these programs are as bad or worse than traditional Jim Crow-style discrimination against minority groups. But to the extent that they do cause racial division and other harms, state governments are primarily to blame. The inescapable truth here is that combatting government-imposed racial discrimination often requires federal intrusion on the autonomy of state and local governments. Recognizing this is in no way inconsistent with libertarianism, a political philosophy in which the allocation of power between different levels of government is a purely instrumental value. It does, however, seem to be a blind spot for Ron Paul and his campaign. UPDATE: It is only fair to note that, to my knowledge, Ron Paul is the sole candidate in either party to denounce the harm done to inner city African-Americans by the War on Drugs, the federal government policy that has probably done more damage to minority communities than any other over the last several decades. I don't think that the War on Drugs is inherently racist, but it certainly has been prosecuted with almost criminal indifference to the welfare of low-income minorities. All Related Posts (on one page) | Some Related Posts:
Rachel Paulose's Departure
from her position as U.S. Attorney for the District of Minnesota has been getting a lot of press recently, including an editorial in Thursday's New York Times. I don't know exactly what to make of the situation: I've never met Paulose, and I don't have any close contacts (at least any that come to mind) in that particular office. If I had to guess, though, I would imagine that this commentary from the Minnesota Lawyer Blog is probably about right. Thanks to Legal Blog Watch for the link.
UPDATE: Over at Concurring Opinions, my friend and colleague Dan Solove adds: As one who has been very critical of the Bush Administration and of how it has politicized the DOJ, I ordinarily would not be very sympathetic to Rachel. Pro Forma Senate Sessions and The Power to Make Recess Appointments:
Marty Lederman offers a very interesting post on this timely topic over at Balkinization.
Thursday, November 22, 2007BBC Revision of the "Handguns Are Used in Most US Assaults and Robberies" Claim:
The BBC story I discussed yesterday has been revised. The "Handguns are used in most US assaults and robberies" caption has been changed to "The debate over handguns is politically charged in the US," and the "Handguns are used in two-thirds of robberies and assaults and in half of murders in the US, according to statistics from the Federal Bureau of Investigations" line has been replaced with "Firearms, including handguns, are used in two-thirds of murders and about 42.2% of robberies committed in the US, according to statistics from the Federal Bureau of Investigations." Both of the new statements are correct, though as I noted earlier, the FBI robbery statistics are probably less reliable than the Department of Justice survey-based statistics, which estimate handgun use at 26.3%. In any case, I'm pleased that the BBC revised the story, whether based on my e-mail to them or on others'. (Note that the "Last Updated: Tuesday, 20 November 2007, 22:21 GMT" doesn't reflect this change; compare the cached version, which contains the errors but has the same timestamp.) If anyone can point me to any BBC page that specifically notes the correction, I'll be happy to note that as well. Related Posts (on one page):
Happy Thanksgiving:
Paul Caron has compiled Thanksgiving Proclamations through the years. The 1621 Thanksgiving Remembered.--
On Thanksgiving, I thought I would link to two posts from earlier years on the 1621 Thanksgiving and the Pilgrims' attitudes toward food in the New World. In 2004, I posted an account of the Massachusetts Pilgrims’ first Thanksgiving in 1621.
Last Thanksgiving (2006), I pointed out the gross misinformation in a 2005 New York Times op-ed on our anachronistic views of the food served at the first Thanksgiving. Professor James McWilliams in the 2005 New York Times:
But the colonial minister Charles Woodmason quoted by McWilliams was not a Pilgrim writing in the 1620s. Woodmason was a famously prejudiced Anglican missionary to backcountry Carolina, describing the habits of Irish and Scots-Irish settlers in his diary during 1766-68, over 140 years after the Pilgrim’s Thanksgiving. Woodmason was not complaining about the food the Pilgrims ate, but rather the very different foods favored in rural Carolina. For much more detail on both issues, you can read the original posts. My favorite Thanksgiving food is a sage sausage dressing that my mother and sisters make. And then there's the wine . . . . Wednesday, November 21, 2007Beyond Infinity:
So we've seen that there are as many squares as there are positive integers, and as many rational numbers as there are positive integers. That's because infinity is infinity, right? All infinite sets are infinite and therefore equal in size? The answer, it turns out, is no. Georg Cantor, in fact, provided a simple and elegant proof that there are more real numbers even just between 0 and 1 (not counting 1) than there are integers, which is to say that there's no one-to-one mapping of real numbers and integers, though there is of rational numbers and integers. Here's the proof. Let's assume that there is such a mapping, so that, for instance, 1 maps to 0.62584146011243... Then let's construct a number based on the digits along the diagonal, with its first digit after the decimal point being 1 more than the first digit of the first number, the second digit being 1 more than the second digit of the second number, and so on (those are the underlined digits); but if some digit in the original mapping is an 8 or 9, we change it to a 0 instead of adding 1. The diagonal number for the mapping above, for instance, is 0.63508..., and the constructed number is 0.74610.... This constructed number is not within the mapping; it can't correspond to any integer n, because the nth digit of the constructed number is guaranteed to differ from the nth digit of the nth number in the mapping. What's more, this is true of any mapping you can come up with. No matter how you try to map the real numbers between 0 and 1 to the positive integers, there will always be a real number between 0 and 1 that one can construct using Cantor's algorithm that will be guaranteed to be outside the mapping. Therefore, no such mapping can exist: It's not possible to map the real numbers between 0 and 1 to the positive integers. Cool, no? All infinite numbers are infinite, but some are more infinite than others. Related Posts (on one page): "[D.C. Officials] Argue Handguns Are Involved in Most Violent Crime":
So says the L.A. Times. But the National Crime Victimization Survey for 2005 (PDF page 81) reports that handguns are used in fewer than 8% of all crimes of violence. This doesn't include homicide, but homicides are fewer than 0.5% of all crimes of violence, so even if one includes homicides the answer would be about 8%. Here's my guess about what happened: The petition does say that "Handguns are the weapon most likely to be used in a street crime," a statistic that the NCVS supports. According to NCVS, handguns account for a plurality (roughly 1/3) of weapons used in the about 25% of violent crimes that the victims believed were committed with weapons (as opposed to hands and fists), which is more than any other class of weapons. The petition's statement is thus accurate, though not terribly helpful and potentially misleading. But this then got transposed into the off-by-a-factor-of-6 L.A. Times statement that "[D.C. officials] argue handguns are involved in most violent crime." Now I should stress that handguns are indeed involved in many crimes, and the majority of homicides. I oppose handgun bans because I think they do more harm than good, but I certainly don't want to pooh-pooh the harm done by criminals with handguns. But this sort of story helps show how skeptical one should be of media reporting about statistics (and likely about other things as well). Thanks to commenter Tom Hynes for pointing this out. Related Posts (on one page):
Are There More Positive Rational Numbers than Positive Integers?
I asked that near the end of my previous post; and the answer, counterintuitively, is that these two sets are also equally big. Remember that the standard definition we're working with is that two sets are equally big if there's a way of mapping each element of the first to precisely one element of the second. So here's the mapping, with the unbracketed item in each cell being a rational number (e.g., 2/3), and the bracketed item being the positive integer to which the mapping is being done. (To make it simple, I'll ignore the double counting that happens when some fractions equal some others that came before, for instance when we get to 2/2 and 3/3, which equal 1/1; to make it more precise, we can just skip over them.
As you can see, if the rational numbers in the form p/q are organized in an infinite matrix, we can start counting by diagonals, and eventually get to any p/q you care to mention. So every positive rational number has precisely one positive integer to which it's mapped. And therefore the sets are equal in size. If you want another mapping, try mapping any p/q (where p and q are relatively prime) to 2^p x 3^q; that maps the positive rationals to a subset of the positive integers. Of course, if you grasp why that works, you've probably learned the diagonals proof already. Related Posts (on one page):
Krugman v. Krugman on Social Security:
Is Social Security in trouble? If you're talking to Paul Krugman, it would depend on when you asked him, as Ruth Marcus documents in this column. It's almost enough to make one think Krugman's become a crude partisan. UPDATE: Krugman responds to Marcus here. Mark Thoma thinks Krugman has a good defense. Ramesh Ponnuru less so. And Henry Farrell is glad to see newspaper columnists engaging -- and actually challenging -- each other. Candidates on Second Amendment Case:
Yesterday, Senator Fred Thompson issued a statement on the Supreme Court's decision to grant certiorari in the District of Columbia gun ban case. It reads, in part:
Governor Mitt Romney also issued a statement, which reads in full:
If Mayor Rudy Giuliani issued a statement, I could not find it on his website. [UPDATE: I must've not looked very hard, because more than one commenter found this statement: "I strongly believe that Judge Silberman’s decision deserves to be upheld by the Supreme Court. The Parker decision is an excellent example of a judge looking to find the meaning of the words in the Constitution, not what he would like them to mean."] I could not find a statement on the Senator Barack Obama or Senator Hilary Clinton campaign sites either. Note: If these or other candidates issued statements on the cert. grant, I'll post links to those as well. Just e-mail them to me, or note them in the comments. To Infinity, and Beyond:
A recent conversation reminded me that many of my lawyer friends don't know these really cool mathematical items, but enjoy them when they learn about them. I thought, then, that I'd quickly go through them; I'm no math maven these days, but I think I can get them right, substantively even if not with the level of formal precision that hard-core math people might prefer. Here's the first question: Are there more positive integers (1, 2, 3, 4, 5, ...) or more integer squares (1, 4, 9, 16, 25, ...)? The answer: The two sets are of the same size. Counterintuitive, some may say: After all, positive integers include all the squares, plus all the nonsquares, as well. In any interval from 1 to n, when n>1, there are more integers than squares; what's more, the ratio increases as n grows. In 1 to a million, for instance, there are a thousand times more integers than squares. Yet this is quite true, under the standard mathematical definition of equal size. Let's define two sets as equal if there's a one-to-one mapping between them, so that each number in one set corresponds to precisely one number in the other. The mapping here is simple: Map any integer n to n squared, which is to say 1 to 1, 2 to 4, 3 to 9, 4 to 16, 5 to 25, and so on. Every number in the positive integers maps to precisely one square, and vice versa. The two sets are equal. In fact, as one can easily prove through a similar approach, any two infinite subsets of the positive integers are equal. In fact, this may lead you to replace your old intuition (lots more integers than squares) with a new one (hey, both sets are infinite, and infinity = infinity). But not so fast! Two questions for you: Are there more positive integers or positive rational numbers (numbers that are the ratio of two integers, such as 2/7 or 549/100)? And are there more positive integers or real numbers? More on that soon. Related Posts (on one page):
"Handguns Are Used in Most US Assaults and Robberies,"
reports a BBC caption. Uh, no: According to the Justice Department's National Crime Victimization Survey (2005 data), table 66, handguns are used in 5.4% of U.S. assaults and 26.3% of robberies. Thanks to Charles Curley for the pointer. I've e-mailed BBC with the correction; please let me know if you see them making it. UPDATE: Even if one uses the Uniform Crime Reports data, which is generally thought to be less reliable because it focuses only on crimes reported to the police, only 42.2% of all robberies involved firearms generally (likely nearly all handguns, but still not "most" robberies), and only 21.9% of all aggravated assaults involved firearms generally, even though "aggravated assault" is a kind of assault that is especially likely to use a deadly weapon — the statistics for all assaults would surely be far lower. (I cite 2006 data here, but the 2003 data is comparable.) I also should have pointed out that the error isn't just in the caption, but also in the article itself, which says "Handguns are used in two-thirds of robberies and assaults and in half of murders in the US, according to statistics from the Federal Bureau of Investigations." The murder statistics are about right, but, as I note above, the robbery and assault numbers are flatly wrong. FURTHER UPDATE: The BBC has revised the page to eliminate these errors; the original is still available in the google cache. Related Posts (on one page):
Radio Debate on the Second Amendment:
From 10:06 to 11 Pacific this morning, I'll be on KPCC-FM (89.3), a local public radio station, talking about the Second Amendment with the host, Larry Mantle, and Erwin Chemerinsky, who'll be on the other side. (Someone else will be filling in for Erwin after the half hour.) The show will be taking listener calls, so if you'd like to call (at 866-893-KPCC [5722]), please do. The program is also available on live streaming audio. The Second Amendment as Teaching Tool in Constitutional Law Classes:
The Supreme Court is about to fill in (whether rightly or wrongly) one of the last blank spots on the constitutional map. This means law professors are about to lose one of the few areas where they can get their students to discuss an exciting constitutional rights issue by talking about text, structure, history, and more, with a minimum of distraction from What The Justices Have Told Us. Most Constitutional Law courses are overwhelmingly (and understandably, though not always entirely fortunately) about the Supreme Court Reports, not about the Constitution as a document. Until now, the Second Amendment has offered a great opportunity for a different approach. In light of this, I thought I'd link to "The Second Amendment as Teaching Tool in Constitutional Law Classes," an article that I put together in 1998 -- it's a joint piece, with sections from Bob Cottrol, Sandy Levinson, Scot Powe, pre-InstaPundit Glenn Harlan Reynolds, and me. I hope it will be of interest even to non-conlawprofs, but I especially hope that some constitutional law professors take our advice in this coming semester. Related Posts (on one page):
Why You Shouldn't Go to Law School:
Paul Gowder makes the case here. I think Paul gives short thrift to practicing criminal law, though. You won't make a ton of money as a prosecutor or defense attorney, but it avoids a lot of the problems he mentions.
UPDATE: I should add, in response to some of the thoughtful comments, that I gather Paul is deliberately stacking the deck to provide a counterpoint to some misunderstandings about practicing law held by a number of law school applicants. Some applicants imagine that a law degree will open the door to practicing international human rights law before the Supreme Court at a prestigious firm that pays them a $1 million a year salary plus free car service at 5pm when the workday is over. The reality is different, and I gather Paul wants those students to know it. The real lesson comes at the end of the original post: "Make this decision very carefully. Don't just drift into it because you're not sure what else to do with a humanities degree." ANOTHER UPDATE: Michael Froomkin comments here. Tuesday, November 20, 2007One Last Ron Paul Post:
Several Paul supporters have pointed me to the Paul campaign's official statement on racism, which they say makes it clear that Paul is against racism, and doesn't want the support of racists. Color me unimpressed and unpersuaded, at least on the latter point. Here is the statement, with my comments in bold: A nation that once prided itself on a sense of rugged individualism has become uncomfortably obsessed with racial group identities.In short, at best this statement reveals a naive faith in the idea that government is the root of all problems, as in the old joke, "How many libertarians does it take to screw in a light bulb? None, the market will take care of it!" Don't like racism? Reduce the federal government and it will go away! At worst, by completely ignoring the historical role of racism in American society, and the diminished but not insubstantial role racism by whites continues to play in our society, and focusing criticism only on advocates of "diversity," (even, apparently, when they advocate only voluntary, non-governmental action to achieve diversity), the Paul campaign is appealing to the Pat Buchanan (and beyond) wing of the "Old Right", while trying to preserve some plausible deniability on race to its more tolerant libertarian constituency. That's not to say that personally Paul isn't really against racism; in the absence of evidence to the contrary, I assume that he is. Rather, the point is that his campaign seems to be taking the same unfortunate position that Goldwater did in 1964; condemning racism in general on principled libertarian grounds, but providing winks and nods that support from racists for racist reasons would be welcome. And now, back to my hiatus. UPDATE: Here's a transcript of Paul condemning the 1964 Civil Rights Act. Interestingly, Paul doesn't manage to slip in any kind words for the Act's prohibition on discrimination by the states, a prohibition all principled libertarians should support, and, for that matter, that even Goldwater, with his strong suspicion of federal power, supported. Paul's condemnation of "forced integration" under the act is rather ambiguous; is he talking only about government imposition on private parties, or about the federal government's role in prohibiting state and local government discrimination, too? FURTHER UPDATE: A similar, somewhat more detailed critique by Dale Franks. And, from Alabama history professor, David Beito, here are clips of Ron Paul speaking in a debate before a primarily minority audience. As David points out, Paul deserves praise for pointing out the destructive effects of the drug war on inner-city communities. All Related Posts (on one page) | Some Related Posts:
The Second Amendment and the Living Constitution:
Today also seemed like a good day to reprint my 2002 item on the Second Amendment and the living Constitution:
Related Posts (on one page): Reflections on Ron Paul:
Various people have asked me what I think of Ron Paul's presidential campaign, and whether it will be good for libertarianism. Here's my take: Ron Paul deserves credit for his strong commitment to limited government on many issues, including taxes, regulation, federal spending, and federalism-based limits on federal government power. Nonetheless, I am skeptical that his candidacy will provide much of a boost to libertarianism. There are also a number of major nonlibertarian elements to Paul's issue positions, some of which are extremely disturbing. The worst is his highly statist position on immigration. I should also note that I strongly disagree with Paul's foreign policy positions. But I'm not going to focus on those issues in this post, because I think libertarianism leaves room for extensive disagreement in that field. I. Why Ron Paul's Candidacy Won't Provide Much Help to Libertarianism in the Long Run. The big problem with claims that Paul's candidacy will provide a major boost to libertarian prospects is that he has virtually no chance of winning the Republican nomination or even coming close to doing so. Virtually all polls have Paul running under 10%. Despite the understandable enthusiasm of Paul's supporters, I doubt that he will even come close to winning a single primary, let alone the nomination. I don't see how libertarian ideas are helped by becoming associated with a presidential campaign doomed to abject failure. To the contrary, if libertarianism more generally becomes closely associated with Paul, his virtually inevitable crushing defeat will be viewed as a major setback for all of us. Some Paul advocates compare him to Barry Goldwater or George McGovern, presidential candidates who advanced their ideology's longterm prospects despite suffering overwhelming electoral defeat. The big difference between Paul and these predecessors is that they managed to win control of their respective political parties, even though they went on to lose in the general election. Paul, by contrast, has no realistic chance of taking control of the Republican Party. II. How Libertarian is Paul? Even if Paul has no chance of winning and little chance of providing a major boost to libertarian prospects, it might be reasonable to support him as a protest candidate, in order to express support for libertarian views for its own sake. I might be willing to go along with this view if it were not for the fact that some of Paul's major issue positions are distinctly nonlibertarian. As the Club for Growth describes here, Ron Paul has opposed virtually all free trade agreements. Few ideas are more fundamental to libertarianism than free trade. As the Club has documented, Paul also has opposed school voucher programs. In both of these cases, in fairness, Paul claims that his position is based on the idea that some other approach - unilateral free trade or home schooling - is even more libertarian than what he opposes. Even if he is correct on these points, I see no libertarian virtue in supporting the far less libertarian status quo against free trade agreements and school vouchers respectively. Even if trade agreements and vouchers are not the optimal libertarian policies, they are surely superior to the status quo of tariffs and government monopoly schooling. Perhaps worst of all, Paul has bought into the conservative nativist line on immigration. He not only favors a massive crackdown on illegal immigration but even seems to endorse the view that immigration should be "reduced, not expanded" whether legal or not. To my mind, the freedom to choose where you live and the right to move to a freer and more prosperous society are among the most important of all libertarian principles. From a libertarian perspective, our relative openness to immigration is one of the most admirable aspects of America. Unlike in the case of free trade and school choice, Paul doesn't even pretend to argue that his position is based on the idea that there is some other policy that will be even more libertarian than the one he opposes. Instead, he clearly endorses the big goverment option of a "allocat[ing] far more resources, both in terms of money and manpower" to cracking down on illegal immigration and perhaps reducing legal immigration as well. Lastly, like David Bernstein, I am troubled by Paul's refusal to repudiate the Stormfront neo-Nazis, racists, 9/11 "Truthers," and other assorted wackos who have endorsed him. Paul is not responsible for the views of these people, and I do not believe that he personally agrees with them. However, his apparent unwillingness to distance himself from them suggests that he is insensitive to the despicable nature of their views, and the significant damage that association with them could do not only to his campaign, but to libertarian causes more generally. On some of the above issues, I might be willing to swallow Paul's shortcomings if he had a real chance of winning. A successful campaign necessarily requires compromise, and I'm not naive enough to believe that I can find a viable candidate that I agree with on everything. A libertarian protest candidate, however, must be judged by higher standards. If I am to support a candidate not because he is the lesser evil among those with a chance of winning, but as a statement of libertarian principle, he better actually reflect those principles. By that standard, Paul clearly falls short. All Related Posts (on one page) | Some Related Posts: "Necessary to the Security of a Free State":
Apropos today's Supreme Court decision to hear the D.C. Second Amendment case, I thought I'd post the final version of my "Necessary to the Security of a Free State," 83 Notre Dame L. Rev. 1 (2007), which is forthcoming in a week or two. Here's the Introduction (materially changed from the earlier version I posted some months ago):
Related Posts (on one page): Justice Kennedy and the Second Amendment:
What is Justice Kennedy likely to do in the Second Amendment case the Court has granted?
As a general rule, Justice Kennedy tends to construe the Bill of Rights so its protections apply broadly but often yield to competing interests. If the question is whether a constitutional protection applies in an abstract sense to a new set of facts, Justice Kennedy is often inclined to answer that question in the affirmative. On the other hand, Kennedy often finds that the right gives way to competing governmenet interests such as law enforcement needs, security, finality, etc. (These are obviously enormous oversimplifications, but I think it's a pretty good first cut.) What does that mean for the Second Amendment case? Well, I looked into my SCOTUS 330CLe Model Crystal Ball (patent pending, with optional GPS system), and it's predicting that Justice Kennedy will conclude that the Second Amendment does in fact create an individual right. It also tells me that Kennedy will endorse a relatively deferential standard of review that will end up allowing a great deal of gun regulation. UPDATE: I have edited the post a bit for style. Related Posts (on one page): Exciting Stem Cell News:
Two publications (Science and Cell) published papers today showing that scientists have succeeded in reprogramming human adult cells to behave much like human embryonic stem cells (hESCs). Following on findings published several months using mouse rather than human cells, the researchers responsible for today's results were able to spur the reprogramming by inserting four genes into the adult cells. The big question is whether this new technique will quell the stem cell research controversy, which arises largely from the fact that the stem cells scientists believe have the greatest medical potential are today derived from 5-day old embryos. The answer is "maybe." Scientists interviewed in today's New York Times article were ebullient about the results, but it is worth remembering that there have been two major scientific discoveries in the last 18 months that promised to end the debate and then quickly faded from public view. In the summer of 2006, scientist Robert Lanza showed that it was possible to produce hESC lines without destroying embryos by carefully removing single cells from many 8-cell embryos. Although long term effects are unknown, we know that removing a single cell from an embryo at that stage does not prevent it from developing. This technique is routinely used to obtain genetic material for preimplantation genetic testing, and the embryos (less one cell) are successfully used for implantation by in vitro fertility clinics. In January of this year, scientists from Harvard and Wake Forest Universities reported that they had discovered stem cells in amniotic fluid that possessed many traits of hESCs. I am optimistic about today's discovery, but three questions remained to be answered, two scientific and one philosophical. The scientific questions: First, will further research show that these reprogrammed cells actually have all the features of hESCs that make the latter so promising? This means they not only must be able to create all the body's cell types, but they must be able to proliferate as rapidly and maintain their unspecialized characteristics in culture as well as hESCs do. Second, will the reprogrammed cells create cancers or other gentic abnormalities? The work done using mouse cells earlier this year suggests the answer is probably yes at the moment, although improvements in the technique might solve this problem. If this problem cannot be overcome, reprogrammed cells might be just as useful as hESCs for some research purposes but not suitable as the basis for stem cell preparations that could be used as treatments for patients. The philosophical question: Will opponents of embryo research embrace the concept of reprogramming cells to their embryonic state? The technology suggests it might one day be possible to use a cell reprogrammed in this way to create an entire person, in the same way that an implanted embryo can develop into a person. Given this possibility, will people who believe embryos have the same moral value as persons and thus should not be used for experimentation believe that reprogrammed cells also have the same moral value as persons and thus also should not be used for experimentation? There is a substantial difference between an embryo and and embryonic stem cell, but not everyone who favors the protection of embryos thinks this difference is dispositive of the question. When Robert Lanza demonstrated the possibility of using single cells from a 8-cell embryos to create cell lines, some opponents of embryo research (including Senator Sam Brownback) protested on the ground that the single cell in question deserved protection. More discussion of the Lanza technique and the response to it can be found in Stem Cell Century: Law and Policy for a Breakthrough Technology). Some background on the D.C. handgun and self-defense bans:
"Wounded Soldier: Military Wants Part Of [Enlistment] Bonus Back":
Yow! Here's the story. My quick research seems to confirm that the military does have this sort of policy, on the theory that the bonus is an advance payment for a full term of service and the soldier isn't entitled to keep it unless he completes the full term -- even when the failure to complete the term is a result of a combat wound. I should note, since this is a legal blog, that the military may well have a right under the terms of the enlistment contract to take back the bonus. It just strikes me as a scuzzy thing to do. Thanks to Victor Steinbok for the pointer. Related Posts (on one page):
Sources on the Second Amendment:
Since the Second Amendment is even more in the news today than usual, I thought I'd repost a link to my Sources on the Second Amendment, a Web page that includes:
Here also are my latest and best-formatted lists of state constitutional rights to keep and bear arms, current and past, sorted by state and by date, and categorized by type. Finally, here's my testimony on the Second Amendment to the Senate Subcommittee on the Constitution -- it's a bit date, since it doesn't include my research on the phrase "free state," but it should still be a helpful articulation of my views. Related Posts (on one page): Opinion Preliminarily Enjoining SFSU Civility Code
is now online; for more on the matter, see here. All Related Posts (on one page) | Some Related Posts:
Supreme Court Grants Cert in Second Amendment Case:
This was expected, but is still big news. The reformulated Question Presented is pretty specific:
"Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?" Related Posts (on one page): That Was Fast:
November 8: Michael Mukasey is confirmed as Attorney General of the United States. November 19: The Justice Department announces that Rachel Paulose, the highly controversial U.S. Attorney for the District of Minnesota, is stepping down.
Eric Black seems to have the inside scoop on the dynamics inside the U.S. Attorney's Office leading up to the resignation. Monday, November 19, 2007Ron Paul's Defenders:
You can find defenses of Ron Paul from my criticisms here, here, here, here, and here. Unfortunately, the authors mostly engage in juvenile rhetorical antics, and none of them manage to address my central point: why does Rep. Paul's campaign find it so difficult to simply issue a statement in Paul's name that he neither solicits nor welcomes the support of the likes of Stormfront? And why do so many of his supporters think it's such an imposition to ask this of him? Then again, given that Paul's blog defenders come from antiwar.com, lewrockwell.com, and conservativetimes.org, the question may answer itself--not that these groups are "Nazi" in ideology, but they're not going to be winning any awards from the ADL or NAACP any time soon, either. OTOH, a friend of mine, who is decidedly liberal (in the broad sense) on race, writes:
Paul certainly has the potential to be the best thing that has happened to libertarianism as a political movement in a long time. He also has the potential to be the worst thing, if, as he gets more public exposure libertarianism gets associated in the public mind with 9/11 truther, southern irredentists, "white nationalists," and so forth. "Pretrial Release of Felony Defendants in State Courts":
A very interesting new report from the U.S. Department of Justice, though limited to the top 75 largest counties (and covering 1990-2004). An example of the kind of data you can find: When the most serious arrest charge was murder, 45% were denied bail, and 35% were required to provide bail of $50,000 or more; 19% were actually released. For the next most serious charge, rape, 9% were denied bail, and 25% were required to provide bail of $50,000 or more; 53% were actually released. There's much more interesting material in that report, and in the supporting data files. Federal Appellate Clerkship Statistics:
Federal Appellate Judicial Clerks 2008 reports some very interesting data about federal appellate clerkships. Note that the site has information only about 452 clerkships, and between active judges (165, with 3 or 4 clerks each) and senior judges (104, with 0 to 3 clerks each, I think), there are considerably more jobs out there than that. Still, the data is the best I've seen, and strikes me as likely at least reasonably representative. Particularly interesting tidbits: 1. The Long(ish) Tail: Though 77.2% of the clerks come from the top 18 schools (top 18 rather than top 20 because the top 18 has been unusually stable in the U.S. News rankings over the years), that means that 22.8% come from below the top 18, 13.1% from below the top 30, and 8.1% from below the top 50. 2. Yale: 26.5% of the Yale class is clerking for circuit judges; that doesn't even count the district court clerks. The runners-up are way behind (Stanford at 15.2%, Chicago at 13%, and Harvard at 9.9%). 3. Successes: Northwestern, #5 on the list of most appellate clerks placed (as a percentage of the class), does considerably better than its U.S. News ranking (#12). Same for Chicago (#3 / #6), Duke (#6 / #10), UCLA (#9 / #15), Vanderbilt (#11 / #16), Texas (#12 / #18), and Notre Dame (#14 / #28). I exclude from this list schools which placed 3 or fewer clerks; if you want to see them (e.g., Richmond [U.S. News #77], which placed a higher percentage of its class than Cornell [U.S. News #13] and USC [U.S. News #16]), go to the site. 4. UCLA: Did I mention how well we did? In 2008-2009, 18 federal court of appeals clerks will be from UCLA, which amounts to 5.4% of our class (note that some of them will be from classes other than the class of 2008, but likewise some of our 2008 graduates will likely get clerkships for future years). Woohoo! Not the percentage of Yale, Stanford, Chicago, or Harvard, but within 1.5% of everyone else, and #9 in the rankings (maybe tied for #8, or at least very nearly so, with Michigan). 5. Notes: (A) Much of this may be based on law school culture; some excellent law schools who routinely place their graduates in excellent jobs might simply not urge their graduates to get clerkships as much as some other schools do. (B) There is some random variation in these numbers from year to year. (C) The numbers may change if other schools report more data to this site. So take these statistics for whatever you feel they are worth. Assessing Presidential Candidates:
Like David Bernstein, I doubt I will pick a particular presidential candidate to support. In my view, assessing candidates is a far more difficult business than many people seem to suppose. In looking over the candidate's record, it's necessary to separate out those positions that he or she took because of genuine commitment from those adopted because of the political constraints the candidate was under at the time. Consider Mitt Romney's socially liberal/pro big government (on economic issues) record as governor of Massachusetts. How much of this represented Romney's true convictions, and how much was the liberal Massachusetts political environment? It's very difficult to tell. If Romney's past positions were primarily a product of the political environment he was in, they may be poor guides to how he will perform as president in a very different setting. Like co-blogger Jonathan Adler, I'm impressed with some of Fred Thompson's statements on federalism. However, I wonder how much of it he really means and how much represents the fact that he spent his political career as a senator from a conservative state and then as a Republican presidential candidate (settings where supporting federalism - especially in a vague general way - carries few risks, and at least some political benefits). Back in 2000, candidate George W. Bush also made positive noises about federalism, only to support massive expansions of federal power once he got into office. Thompson is probably better in this respect than Bush (I suspect); but it's hard to tell by how much. In any event, being better than Bush on federalism is a very low standard of comparison. Ultimately, however, the key lesson of libertarianism is that we don't want a system where we have to place heavy reliance on the good intentions of individual politicians. Such reliance is all too likely to be misplaced. Instead, our ultimate objective must be to reimpose strong limits on government power so as to minimize the harm that politicians of any stripe can cause. As I see it, my main comparative advantage as a blogger is not to tell you to support candidate X vs. candidate Y, but rather to help promote and develop libertarian ideas as thoughtfully and effectively as I can. If those ideas become widely enough accepted, even the most unprincipled of politicians will have to reckon with them out of self-interest. If they don't, even candidates personally sympathetic to liberty will have to support big government to a large extent in order to get themselves elected. The world I hope one day to live in is one where the outcome of presidential elections matters a lot less than it does now because government - especially the federal government - doesn't wield so much power. None of this means that we should be completely indifferent to electoral outcomes. Some candidates are indeed a lesser evil than others. However, I prefer to focus most of my energy on analyzing broader systemic issues rather than on the immediate electoral politics of the moment. In the long run, the tide of opinion on the former is likely to be far more important than the latter. All Related Posts (on one page) | Some Related Posts: "The Maryland Perspective" on Federal Law:
You've probably heard of the "Chicago School" of legal thought. But did you know that there is also a "Maryland perspective" on the law? In today's Baltimore Sun, the editors support the decision of Maryland Senators Mikulski and Cardin to block the judicial nomination of the current U.S. Attorney for Maryland, Rod Rosenstein, to the Fourth Circuit. The editorial offers a few reasons, but the key point seems to be that Mr. Rosenstein lacks a true "Maryland perspective" on federal law:
Sens. Barbara A. Mikulski and Benjamin L. Cardin notified the White House as recently as September that they would oppose a Rosenstein nomination . . . because the nominee lacks the critical qualification of a long history in Maryland's legal community. A native of Philadelphia, Mr. Rosenstein was just admitted to the Maryland bar in 2002. . . .Can any one explain this "Maryland perspective" of the law? Is it genetic? Are there classes you can take to learn it? Books you can read? Can it be acquired quickly, or must it age like a fine wine during decades of residence? Or is it supposed to be a proxy for political views, with the idea being that a true Marylander isn't particularly conservative? (Oh, and yes, I'm fully aware of the history of state-by-state representation on the federal court of appeals. I think it's important, too. I just think it's amusing that the editors would take a historical practice designed to ensure equal treatment and discuss it as if it were some kind of jurisprudential school.) Thanks to Howard for the link. 61 Columbia Professors Dissent
from the 70 Columbia Professors' statement criticizing Lee Bollinger; here's the 61 professors' statement:
Related Posts (on one page):
Which Law Schools Rank Below the Undergraduate Institutions with Which They're Affiliated?
Paul Caron has the data, based on the U.S. News rankings; this complements his earlier post on law schools that outrank their undergraduate institutions. Related Posts (on one page):
Prof. Glenn Reynolds (InstaPundit) on How Courts Should Address Individual Right-to-Keep-and-Bear-Arms Claims,
in Guns and Gay Sex: Some Notes on Firearms, the Second Amendment, and "Reasonable Regulation" (forthcoming in the Tennessee Law Review). This is a very important issue, whether or not the Supreme Court holds that the Second Amendment secures an individual right — after all, at least 40 state constitutions secure an individual right to bear arms, and they'll remain relevant with regard to those states' gun control laws regardless of the Court's Second Amendment decisions; and Glenn is one of the nation's leading right-to-bear-arms scholars. If you're interested in the subject, I highly recommend his piece, which also has the merit of being only 12 pages long. For a link to the article to which Glenn is responding, see here. Sunday, November 18, 2007Republican Candidates Battle for the Law Professor Vote:
Here's the tally so far; a surprisingly large percentage of well-known conservative professors have signed up with a campaign. Rudy Giuliani: Lillian Bevier, Steven Calabresi, Ronald Cass, Charles Fried, John McGinnis, Daniel Rodriguez, George Priest, Nicholas Quinn Rosencranz, Ron Rotunda Fred Thompson: Michael Abramowicz, Jonathan Adler, John Baker, Michael Dimino, Viet Dinh, John Duffy, Brian Fitzpatrick, Rick Garnett, Orin Kerr, Caleb Nelson, Eugene Volokh, Todd Zywicki Mitt Romney (technically an advisory committee on the Constitution and the Courts): Michelle Boardman, Mary Anne Glendon, Alan Ferrell, Douglas Kmiec, Stephen Presser, Brad Smith John McCain: If law professors are organizing themselves on behalf of McCain, it's not easy to find on the web, though my colleague (and former head of the FTC) Tim Muris is a bigwig in the campaign. Careful readers will note that Thompson thus far has an overwhelming edge among Volokh Conspiracy bloggers (no, we haven't discussed this among ourselves, and I'm pretty certain there won't be a blog endorsement). I find it especially interesting that Romney, who was pro-choice until recently, seem especially popular among the "serious Catholic" law professors. As for me, I can't say I have a strong preference, and I find that, as usual for someone like me who is very libertarian and highly skeptical of politicians, the choice is a choice among lesser evils, to wit: Thompson's "Lawyers for Thompson" site attacks Giuliani for being pro-choice and pro-gay rights, which are among Giuliani's greatest virtues as a candidate. I thought Giuliani was about as good a mayor as New York is going to get, but I can't forget that he abused his prosecutorial office for political gain as U.S. attorney in the 1980s, and he is probably the least likely of all the major candidates in both parties to rethink the drug war. At least Giuliani has stayed true to his liberal positions on social issues; Romney's sudden conversion to pro-life conservatism suggests that either his current or his former views were purely opportunistic. And then there's McCain-Feingold. Ron Paul is a tempting protest vote, and I did support him in 1988 when he ran as a Libertarian, but he strikes me as running less of a "libertarian" campaign than a pacifist, populist campaign that does have some appeal to young and idealistic libertarians, but has too much appeal to the old, paranoid, and racist pseudo-conservatives. There seems to be a right-wing version of the Popular Front mentality among many Paul supporters: just like it was okay for Social Democrats to ally with Stalinists for "Progressive" ends in the old days, it's okay to ally with 9/11 and various other conspiracy theorists, southern secessionists, Nazis and fascists, anti-Semites and racists, against the common enemy of the modern "welfare-warfare" state. Count me out! So I have no strong preference among the Republican candidates at this point. Even if I did, I can't imagine why anyone would care enough to bother putting my name on a list, but then partisan politics isn't my thing. UPDATE: Not surprisingly, I've heard from some Paul supporters urging me to reconsider. Also not surprisingly, none of them have provided any indication that my description of the Paul coalition is inaccurate, or that Paul has gone out of his way to discourage support from the conspiracy-mongers and "white nationalists." All Related Posts (on one page) | Some Related Posts:
Harold Berman, RIP:
I just learned that the extraordinary legal historian Harold Berman just passed away. The New York Times obituary is here. Donald Boudreaux's thoughtful appreciation is here. Berman's magnum opus Law and Revolution was one of a handful of books that truly transformed my thinking about law. It is one of those books that once you read it, it is almost impossible to ever again think about law and especially legal history the same. His insights about the nature of the common law and the spontaneous emergence of the rule of law and personal liberty from the polycentric legal order of the Middle Ages exerted an immense influence on my own scholarship (as probably most evidenced in my article on the "Rise and Fall of the Efficiency of the Common Law"). His work on the intellectual history of the common law is quite extraordinary as well. One remarkable personal story involving Professor Berman. During the Fall 2001 semester Peter Boettke and I co-taught a class on "The Rule of Law, Freedom, and Prosperity." Professor Berman guest lectured in our class on September 10, 2001. He gave a great lecture and we had a truly memorable conversation over dinner that evening at a now-defunct Vietnamese restaurant in Clarendon (The Queen Bee). He told some fascinating stories about his experiences in the Soviet Union and some of the GMU Economics grad students scandalized him with radical interpretations of his work. An amazing evening. Then we all woke up the next morning to the tragedy of September 11. I believe that Professor Berman finally hired a driver a day or two later to drive him to Richmond, where he and his wife eventually caught a train to Atlanta, finally arriving home three days later. An amazing story. A true gentleman and an extraordinary scholar. Men (and scholars) like him come along rarely, and I'm glad I had the opportunity to meet him and to learn from his work. A Danger of Using Foreign Law to Interpret US Law:
The use of foreign law to interpret the US Constitution is a complex subject that too often gets caught up in sound bites. Although at this point, the Supreme Court's use of foreign law in this way has been extremely limited, I have several concerns about proposals to increase that reliance. In this post, I'll just briefly mention one that hasn't gotten enough attention: the Court's lack of relevant expertise. For a Supreme Court made up of generalists, even keeping up with all the US law that the Court has to deal with is a full-time job, one that the justices often fail at. But at least a justice addressing an issue of American law that he is unfamiliar with has the advantage of dealing with a body of law embedded in a broader legal system that he has at least some understanding of. By contrast, few if any justices have extensive knowledge of foreign legal systems. As a result, justices interpreting foreign law are likely to misunderstand the context of that law, and also to misunderstand relevant differences and similarities between the US and the foreign jurisdiction in question. Thus, even if it is theoretically possible for the Court to mine valuable insights from foreign law, it is unlikely that the real-world Court will actually be able to do so. This lack of expertise may help explain why those justices who do rely on foreign law never seem to do a systematic survey of the relevant foreign precedents, but instead simply pick a few examples that seem to support their position. To take an example from an area of law I'm familiar with, Justice Stephen Breyer sometimes relies on foreign law to justify his positions on federalism issues, as in his famous dissent in Printz v. United States. However, he has never confronted the fact that many federal systems in other democracies (e.g. - Germany) have fairly extensive judicial review of federalism issues, with judges using their power to limit the authority of the central government. Breyer, of course, has taken the position that the US judiciary should virtually never restrict federal government power on federalism grounds. Similarly justices such as Breyer and others who endorse the Court's abortion precedents routinely ignore the fact that most other nations impose more extensive constraints on abortion than would be permitted under US Supreme Court precedent. These two examples are drawn from the work of liberal justices. However, I doubt that the conservative justices would be much better if they too started to rely on foreign law to buttress their positions in constitutional cases. All Related Posts (on one page) | Some Related Posts:
|