Iowa Caucuses:
Really, why does anyone take them seriously, at least on the Republican side? Wasn't Pat Robertson's second-place finish with 25% of the vote in 1988 enough to discredit them permanently?
Saturday, January 5, 2008
First Amendment Procedural Protections and Copyright Law:
There's an interesting debate between Dan Solove and Bruce Boyden on one aspect of this -- limits on discovery of an anonymous poster's identity -- in this Concurring Opinions post and the comments to it.
I've cowritten pieces on related subjects before (injunctions in copyright cases and independent appellate review in copyright cases), but I'm not sure how things should play out here, where literal copying is alleged, and where the procedural protection is the emerging procedural rule related to limits on the outing of anonymous posters. My inclination is to say that the procedural rule should be applied, but the requirements of the rule should be easy to satisfy (since the rule generally requires only showing of a serious prima facie case that the speech is unprotected by the First Amendment, something that's usually pretty easy to do with file-sharing of literal copies of others' songs). But I can't say I've looked at the subject closely.
En Banc Sixth Divides on Habeas Petition (and En Banc):
Yesterday, a divided en banc panel of the U.S. Court of Appeals for the Sixth Circuit divided over convicted murderer Stephen Bell's habeas claim, as well as over whether en banc review should have been granted in his case, Bell v. Bell.
Bell was convicted of both first and second degree murder in a Tennessee court over 20 years ago. Since then, he has been challenging his conviction arguing, among other things, that he received ineffective assistance of counsel and the state failed to turn over material that could have impeached a prosecution witness, in violation of Brady v. Maryland. A federal district court denied Bell's habeas petition, but a divided Sixth Circuit panel reversed on Bell's Brady claim. A majority of active Sixth Circuit judges voted to rehear the case en banc, vacating the panel decision. Yesterday, the en banc court voted 8-6 to affirm the district court's denial of Bell's habeas petition.
The key issues dividing the court was whether the prosecution unlawfully withheld evidence of an alleged tacit agreement between it and a jailhouse snitch who testified for the prosecution and subsequently received more lenient treatment from the government. As Judge Gibbons wrote for the Court majority:
although we do not take issue with the principle that the prosecution must disclose a tacit agreement between the prosecution and a witness, it is not the case that, if the government chooses to provide assistance to a witness following a trial, a court must necessarily infer a preexisting deal subject to disclosure under Brady. “The government is free to reward witnesses for their cooperation with favorable treatment in pending criminal cases without disclosing to the defendant its intention to do so, provided that it does not promise anything to the witnesses prior to their testimony.” Shabazz v. Artuz, 336 F.3d 154, 165 (2d Cir. 2003) (emphasis in original). To conclude otherwise would place prosecutors in the untenable position of being obligated to disclose information prior to trial that may not be available to them or to forgo the award of favorable treatment to a participating witness for fear that they will be accused of withholding evidence of an agreement.Because Bell could not demonstrate the existence of an actual agreement between the prosecution and its witness.
In addition to dividing on Bell's Brady claim, the court also divided over whether an en banc rehearing should have been granted in the case. In a separate dissent on this question, Judge Moore argued that the court did not have sufficient grounds for an en banc because there was no intracircuit conflict, nor did the case present "a matter of exceptional public importance." Judge Gibbons responded to this charge in a footnote:
FN2 Judge Moore’s dissenting opinion questions the justification for granting en banc review in this case, asserting that the case does not present a question of exceptional public importance but only a difference of opinion as to what facts permit the inference of a tacit agreement. As explained infra . . . , it is precisely the panel majority’s conclusion that the facts of this case permit such an inference that would create a new definition of Brady material and a new legal rule broadly applicable in federal criminal prosecutions as well as habeas proceedings. If the panel majority’s opinion remained as binding precedent, the impact would be enormous. While ordinarily factual issues do not merit en banc rehearing, this one does.
Reader Poll on Allowing the Death Penalty To Punish the Rape of A Child:
In light of the Supreme Court's recent decision to hear a case on whether states can impose the death penalty for rape of a child, I am curious about reader opinion on such laws. So here's a reader poll. Imagine your state is considering a law to allow a jury to impose the death penalty for a defendant who rapes a child. Now answer the following question:
Revisiting the Lancet Study on Iraqi War Deaths:
In 2006, the Lancet published a controversial study finding a substantial, continuing Iraqi death toll in the years following the 2003 U.S. invasion. The study bolstered critics of the Iraq war and prompted substantial debate, online and elsewhere.
Neil Munro revisits the Lancet study in the new issue of National Journal.
In the ensuing year, numerous skeptics have identified various weaknesses with the study's methodology and conclusions. Political blogs and academic journals have registered and responded to the objections in a debate that has been simultaneously arcane and predictable. The arguments are arcane because that is the nature of statistical analysis. They are predictable because that is the nature of today's polarized political discourse, with liberals defending the Lancet study and conservatives contesting it.I did not follow the debate closely enough to reach a conclusion about the merits of the study or its critics. The Munro article provides a convenient overviewof the controversy for those of us without the time or patience to wade into the depths of the debate. Munro is not entirely neutral, however, as he concludes there are potential problems with the initial study.How to explain the enormous discrepancy between The Lancet's estimation of Iraqi war deaths and those from studies that used other methodologies? For starters, the authors of the Lancet study followed a model that ensured that even minor components of the data, when extrapolated over the whole population, would yield huge differences in the death toll. Skeptical commentators have highlighted questionable assumptions, implausible data, and ideological leanings among the authors, Gilbert Burnham, Riyadh Lafta, and Les Roberts.
Over the past several months, National Journal has examined the 2006 Lancet article, and another [PDF] that some of the same authors published in 2004; probed the problems of estimating wartime mortality rates; and interviewed the authors and their critics. NJ has identified potential problems with the research that fall under three broad headings: 1) possible flaws in the design and execution of the study; 2) a lack of transparency in the data, which has raised suspicions of fraud; and 3) political preferences held by the authors and the funders, which include George Soros's Open Society Institute.Of these critiques, I find the political preferences of the authors and their funders to be the least persuasive. Political bias of this sort could certainly explain problems with the study, such as a failure to scrutinize sources and ensure their reliability, but I do not think that the authors' ideological predispositions (or those of the funders) should, in and of themselves, case doubts on the study's findings. The Lancet study's conclusions should stand or fall on their own. In this regard, it is interesting that Munro reports the Lancet editors are less confident of the analysis than they once had been.
Today, the journal's editor tacitly concedes discomfort with the Iraqi death estimates. "Anything [the authors] can do to strengthen the credibility of the Lancet paper," Horton told NJ, "would be very welcome." If clear evidence of misconduct is presented to The Lancet, "we would be happy to go ask the authors and the institution for an official inquiry, and we would then abide by the conclusion of that inquiry."
Justice Ginsburg and the Death Penalty for Rape:
A comment on the thread about the new Supreme Court death-penalty-for-child-rape case wrote, "I think [Justice Ginsburg] may be disturbed by some of the statements in the Coker decision about rape not having any long term harm on women. As a woman, I am sure she was not thrilled with 9 men deciding that." I should note that Coker says,
Ruth Bader Ginsburg, Melvin L. Wulf, Marjorie Mazen Smith, and Nancy Stearns filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal [of the death sentence].
The brief was filed on behalf of the American Civil Liberties Union, the Center for Constitutional Rights, the National Organization for Women Legal Defense and Education Fund, the Women's Law Project, the Center for Women Policy Studies, the Women's Legal Defense Fund, and Equal Rights Advocates, Inc.; here's the summary of the argument from that brief:
The historical origin of the death penalty for rape lies in the long standing view of rape as a crime of property where the aggrieved was not the woman but her husband or father. In the Southern states this view coalesced with a tradition which valued white women according to their purity and chastity and assigned them exclusively to white men.
As a result, a double standard of justice developed for weighing and punishing rape by white and black men. This double standard of justice was reflected in Georgia's penalty structure for rape which, until the abolition of slavery, reserved the death penalty exclusively for black men. Even since 1861, the death sentence has rarely been imposed on white men.
The history of rape as a crime against man's property, not against the woman herself, sheds light on the ambivalent treatment of the victim who is viewed not simply as the virgin whose violation inspires outrage but also as the temptress who threatens every man with conviction. This latter perception, as well as the severe penalties attached to a rape conviction, has led to special rules requiring corroboration of the victim's testimony, permitting evidence of the woman's prior sexual conduct or reputation for chastity and authorizing cautionary jury instructions which impugn the victim's credibility.
The death penalty for rape does not meet “contemporary standards regarding the infliction of punishment,” Woodson v. North Carolina, 96 S. Ct. 2978 (1976), and hence runs afoul of the Eighth Amendment. Jury repudiation of the penalty is apparent. Moreover, overly severe penalties for rape, epitomized by the death penalty, are counterproductive to the goal of affording maximum legal protection to victims of rape since they have led to a conviction rate for rape which is lower than that for any other major violent crime.
Amici, interested in effective enforcement of laws against rape, urge that the death penalty for rape be invalidated because it stems from archaic notions which demean women and gross racial injustice and does not serve the goal of convicting and subjecting to criminal sanctions those who are in fact guilty of rape.
Now maybe there are parts of the language in Coker that Justice Ginsburg disapproves of -- though I certainly wouldn't say that Coker describes rape as "not having any long term harm on women," especially given this passage from the Coker plurality:
We do not discount the seriousness of rape as a crime. It is highly reprehensible, both in a moral sense and in its almost total contempt for the personal integrity and autonomy of the female victim and for the latter's privilege of choosing those with whom intimate relationships are to be established. Short of homicide, it is the "ultimate violation of self." It is also a violent crime because it normally involves force, or the threat of force or intimidation, to overcome the will and the capacity of the victim to resist. Rape is very often accompanied by physical injury to the female and can also inflict mental and psychological damage. Because it undermines the community's sense of security, there is public injury as well.
Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life. Although it may be accompanied by another crime, rape by definition does not include the death of or even the serious injury to another person. The murderer kills; the rapist, if no more than that, does not. Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair. We have the abiding conviction that the death penalty, which "is unique in its severity and irrevocability," is an excessive penalty for the rapist who, as such, does not take human life.
Likewise, it's possible that Justice Ginsburg has changed her views in the last 30 years. Still, I wouldn't infer much from Justice Ginsburg's sex or feminism about her views on the death penalty for rape.
Careful With Those Scientific Allusions:
I just noticed this item from Andrew Sullivan in The Atlantic:
Consider this hypothetical. It’s November 2008. A young Pakistani Muslim is watching television and sees that this man — Barack Hussein Obama — is the new face of America. In one simple image, America’s soft power has been ratcheted up not a notch, but a logarithm.
Now I've been trying hard to stifle my natural temptation towards mathematico-linguistic pedantry. Really, I have. "A number of" to mean "many" still annoys me — zero is a number; so is one — as does "to the nth degree" (depends on the n, no?). But I have to acknowledge that these are established English idioms, governed by the rules of English idiom, not of mathematics. I don't like 'em, but that's my problem, not the speaker's.
Still, if you're going to try to come up with new figurative usages, it seems to me that the figure of speech should fit rhetorically. "A number of" at least sounds large, but "a logarithm" doesn't. Logarithms, I think, generally seem small. In all the commonly used bases, they are smaller than the original number, often much smaller. A million is a big number; comparatively, the base-ten logarithm of a million (six) is much smaller.
A logarithmic scale does have the property that small steps can correspond to large increases, which is what I take it Sullivan is referring to. But "ratcheted up ... a logarithm" doesn't quite capture that, I think. "Exponential increases" does communicate "large increases," in a way I have to grudgingly accept (down, math pedant self, down!). But logarithm is the opposite of exponential, not a synonym. And when new terms are coined, the correspondence to the original referent does matter, especially given that most people who even know what a logarithmic scale is will likely think of the original referent.
My sense is that scientific allusions, like classical allusions, tempt people into error — they sound cool, and people use them because of that rather than because they're apt. So think twice before you ratchet things up a logarithm.
UPDATE: The winner is commenter Elmer: "To summarize, ratchet and soft and logarithm just don't go together well, though Soft Ratchet Logarithm would, of course, be an OK name for a band."
Mis (Not Quite) Quoted by the AP:
Yesterday I engaged in an email interview with a reporter from the AP, who today in this story inaccurately attributes the following view to me:
To the contrary, in my view, because the Second Amendment by itself applies only to the federal government, whether or not states may violate a right to keep and bear arms is a Fourteenth Amendment issue. Originally, such an individual right to arms was meant to be protected by the Privileges or Immunities Clause. Ahistorically today, it would have to be "incorporated" into the Due Process Clause. Therefore, it is quite easy to imagine the Supreme Court accepting an individual rights interpretation of the Second Amendment and then not applying it to the states via the Fourteenth Amendment. That issue is not on the table (immediately at least) in the Heller case.
The interview actually concerned DC's claim that because the District was LIKE a state, and because the Second Amendment only protected the right of a state to have a militia (and also that it did not originally interfere with the internal discretionary powers of states), the Amendment did not apply to DC. It was this claim (in bold) that I viewed as both strained and "at odds with the text and the original meaning of the Second Amendment and the rest of the Bill of Rights as well." Here is what I wrote in my very brief email:
I am positive that this was an innocent oversight by the AP reporter, and this is not the worst view with which to be wrongly associated. However, because past quotes of mine in wire service stories have spread widely on the net, although I doubt that this correction (or even one by the AP itself) can catch up to this misattribution, I felt it necessary at least to try to correct the record here.
Randy Barnett, law professor at Georgetown University, agreed that the argument is strained, and said that if the high court accepts the notion that the right to bear arms is an individual right, it would be hard pressed to turn around and allow the district and the states to violate that right.The actual quote is correct. The view attributed to me in the italicized portion of the story, but not actually quoted, was not even the subject of our exchange.
The district's interpretation "is at odds with the text and the original meaning of the Second Amendment and the rest of the Bill of Rights as well," Barnett said.
To the contrary, in my view, because the Second Amendment by itself applies only to the federal government, whether or not states may violate a right to keep and bear arms is a Fourteenth Amendment issue. Originally, such an individual right to arms was meant to be protected by the Privileges or Immunities Clause. Ahistorically today, it would have to be "incorporated" into the Due Process Clause. Therefore, it is quite easy to imagine the Supreme Court accepting an individual rights interpretation of the Second Amendment and then not applying it to the states via the Fourteenth Amendment. That issue is not on the table (immediately at least) in the Heller case.
The interview actually concerned DC's claim that because the District was LIKE a state, and because the Second Amendment only protected the right of a state to have a militia (and also that it did not originally interfere with the internal discretionary powers of states), the Amendment did not apply to DC. It was this claim (in bold) that I viewed as both strained and "at odds with the text and the original meaning of the Second Amendment and the rest of the Bill of Rights as well." Here is what I wrote in my very brief email:
This part of the District's argument depends entirely on its claim that the Second Amendment only protects the rights of states to preserve their militias. This is not what the amendment says. What it says is that, given the importance of having a militia, the "right" of "the people" (which everywhere else in the Bill of Rights refers to individual rights) shall not be infringed. So while the district's argument has been accepted by many courts of appeals in the 20th Century, it is wrong.Other than a report by the Cybercast News Service of a talk I gave at Brookings Institute that, by being badly written, inadvertently made it appear as though I opposed the individual rights interpretation of the Second Amendment, this is the first time I have been misquoted by a reporter, except in this story the actual quotation was indeed mine.
I am positive that this was an innocent oversight by the AP reporter, and this is not the worst view with which to be wrongly associated. However, because past quotes of mine in wire service stories have spread widely on the net, although I doubt that this correction (or even one by the AP itself) can catch up to this misattribution, I felt it necessary at least to try to correct the record here.
Friday, January 4, 2008
Has a recession already started?--
Are we in an economic recession?
According to figures released by the Dept. of Labor Friday morning, December civilian unemployment jumped three-tenths of a percent from 4.7% to 5%, representing a .6% increase over the March 2007 rate of 4.4%.
According to historical statistics that I analyzed today, since 1948 there were 160 prior months when there was a .6% or greater increase in the unemployment rate over the trough (minimum) unemployment rate of the prior 9 months. Every single one of these 160 indicator months fell before, during, or after one of the 10 recessions since 1948.
Looking at the 10 recessions since 1948, this .6% indicator coincided with the start of the recession in one case (1980), with the 3d month in two cases (1970 & 1990), and with the 4th month of the recession in four cases (1953, 1981, 1974, & 2001). In three of the ten cases, the indicator preceded the recession: in 1957 the indicator month preceded the recession by 2 months, in 1959 the indicator month preceded the recession by 6 months, and in 1948 (the first year of the Labor data) the indicator month preceded the recession by 8 months.
In other words, since the 1960-61 recession began in April 1960, every one of the 115 months with an unemployment rate .6% higher than one of the prior 9 months was either during a recession or in the aftermath of a recession.
Further, in every recession cycle, in the first month that included both a .3% jump from the immediately prior month and a .6% increase over the trough of the prior 9 months, we were already in a recession by the time the data was reported (in the following month).
If the past is any guide to the future--and anyone doing backtesting knows that it often isn’t--then we are probably already in a general recession (or will be in one by August at the latest).
This conclusion is consistent with some work I did last summer showing that since World War II, substantial housing declines always preceded or coincided with recessions:
Since World War II, there have been three sharp housing price declines (in real dollars):
the 1947-48 housing price drop, preceding the Nov. 1948 – Oct. 1949 recession,
the 1979-82 housing price drop, preceding the July 1981 – Nov. 1982 recession (and also coincident with the Jan.-July 1980 recession), and
the 1989-91 drop, associated with the July 1990 - March 1991 recession.
Caveats:
1. A recent survey of top money managers, CNBC’s Trillion Dollar Survey, found that 98% of the 60 experts surveyed put the chances of a recession in 2008 at 50-50 or less. As someone with far less expertise than they, I would put the chances of a recession in 2008 at perhaps 75-90%. While (social) science does not work by consensus, a wise person should probably give more weight to the opinions of 59 of the 60 experts than to my opinion (shared by only one of the 60 experts surveyed by CNBC.
2. The unemployment data is frequently revised up or down a little based on later data, so the 5% December unemployment rate may change. Thus, the indicator I use here may disappear (though even a .5% increase to 4.9% is usually associated with a recession).
3. Because unemployment often continues to rise long after a recession officially ends, I needed to use a cut-off for determining the length of the aftermath of a recession. I treated recession unemployment as having peaked (and a new cycle resetting) when (1) the recession has ended, (2) the .6% indicators cease, and (3) unemployment drops to a level at least .3% below its peak from the prior 12 months. [I have more on this caveat in the comments.]
Related Posts (on one page):
- More on the Recession Watch.--
- Has a recession already started?--
Child Support Obligations of Sperm Donors:
Thanks to Jocelyn Bowie for pointing me to a very interesting recent opinion in the case of Ferguson v. McKiernan, --- A.2d ---, 2007 WL 4555436, Pa., December 27, 2007:
A man (McKiernan) agrees to provide sperm to an unmarried woman (Ferguson) who wishes to become a single parent but wants to use the sperm of someone she knows rather than an anonymous donor. The man agrees not to seek custody or visitation of the child, and the woman agrees not to seek child support. The woman’s eggs are then fertilized in vitro with the man’s sperm, and resulting embryos are implanted in the woman’s womb for gestation. Five years after giving birth to twins, the woman demands child support payments from the man. The trial court ruled that the contract is unenforceable because parents normally are not permitted to waive child support requirements. The Pennsylvania Supreme Court, fearing that no man in his right mind would ever be sperm donor if that ruling is upheld, reversed and freed the man of monthly support obligations.
The case illustrates several conceptual difficulties inherent in defining parentage and determining child support obligations. The majority of the Pennsylvania Supreme Court observes that if the “known” sperm donor is held responsible for caring for his “children,” there is no reason why the logic wouldn’t require the same of anonymous sperm bank donors. They, too, are genetic parents of the children. But if the line on one side — between donating friends and anonymous sperm bank donors — is difficult to defend, so too is the line on the other side. If the sperm donor friend need not support the offspring on the ground that he had no intention of becoming a “social” parent and genetic parentage should not be sufficient, shouldn’t the same rule apply to a man who impregnates a woman through sexual intercourse after the two agree that the man will have no support obligations for any offspring? In this case also, both genetic parents understand and agree that the man is only providing genetic material and is not agreeing to become a social parent. If the man should not be responsible in this case, the next question is why he should be responsible when the pregnancy is accidental rather than intended and the man wants the woman to obtain an abortion but the woman declines to do so? The woman’s right to control her own body guarantees her the right to unilaterally decide whether or not to terminate the pregnancy, but why should she be able to impose child support obligations on the genetic father who clearly wishes to avoid “social” parentage?
The usual response to all of these questions is that the woman has no right to waive child support because this right belongs not to her but to the child. But this response just begs the question of what relationship is necessary to establish such an entitlement. If genetic parentage is sufficient, then children should have a right to child support from even an anonymous sperm donor.
Many states (although apparently not Pennsylvania) have established by statute that anonymous sperm donors have no parental obligations, but the existence of such laws doesn’t justify them. One possible defense of treating anonymous sperm donors differently is that states with such statutes abrogate the rights that genetic children fathered by anonymous sperm donors would otherwise have against their genetic fathers because such laws encourage sperm donation, which in turn makes it possible for the genetic children to be born, and being born but having no paternal financial support is better than never being born at all. But this logic, carried to its extreme, would suggest children would have no right to parental support in any case.
Perhaps another way to think about the problem posed by the case is that the woman cannot contract away the children’s right to the support of their genetic father, but there is no reason why she should not be able to indemnify the man from any such claims. Her promise not to seek child support can be interpreted as such an indemnification. This reasoning seems sound from the perspective of contract doctrine — the woman can commit herself to a contract but not the third-party children — but it raises obvious practical problems when the man earns sufficiently more than the woman (as was true in Ferguson) such that his court-imposed child support obligation exceeds what she could pay in damages. Following this path of reasoning often would result in the resort to bankruptcy law to determine how much of the amount the man owes to his genetic children he can recapture from their mother.
HEARTBREAKING POST:
Andrew Olmsted, who blogged at Obsidian Wings, was killed yesterday in Iraq, where he was serving in the military. Months ago he composed a post to be published in case he died. It's here, and it's heartbreaking. There may be other notes that people serving in Iraq wrote to be read in case they died, but I haven't seen any of them, and I can't imagine they could be more powerful than this one. He says that he doesn't want his death to be used by either side in the debate on the Iraq war, but he also notes that it is easy to gloss over the human costs of war, and that many people do it. Olmsted's post makes that harder to do.
Supreme Court Agrees to Consider Constitutionality of Death Penalty for Child Rape:
Last May, I wrote:
Yesterday, the Louisiana Supreme Court upheld the death penalty for rape of a child under 12. In Coker v. Georgia (1977), the Supreme Court held that the death penalty for rape was unconstitutional. Many commentators had interpreted the reasoning of Coker as precluding the death penalty for anything short of murder and possibly some national security offenses (treason, espionage, and the like). But Coker spoke expressly and repeatedly of rape of an adult, so the question of the death penalty for rape of a child remains open.Yesterday's decision follows the lead of a 1996 Louisiana Supreme Court case (State v. Wilson), but Wilson decided the question in the context of a pretrial motion, and the U.S. Supreme Court understandably -- given its general preference not to review decisions before a final judgment -- refused to hear the case. The new case, State v. Kennedy, upholds a death sentence, so I suspect the Supreme Court will agree to consider the issue.
The Louisiana opinion is long and detailed, and I can't do it justice with a capsule summary; but here's a particularly interesting passage that tries to apply the U.S. Supreme Court's death penalty methodology that was developed in the recent cases having to do with the death penalty for juveniles and the mentally retarded (one paragraph break added):
Overall, it appears that approximately 30% of capital jurisdictions (15 of 38, including federal) authorize some form of non-homicide capital punishment, a showing strong enough to suggest that there may be no consensus one way or the other on whether death is an appropriate punishment for any crime which does not result in the death of the victim. However, when the direction of change is considered, clearly the direction is towards the imposition of capital punishment for non-homicide crimes. As stated earlier, the number of jurisdictions allowing the death penalty for non-homicide crimes more than doubled between 1993 and 1997.
Most important to our analysis is the fact that four states have enacted laws which capitalize child rape since Wilson, evidencing movement in the direction that this Court thought possible back in 1996 when Wilson was decided. Looked at another way, even after the Supreme Court decided in Coker that the death penalty for rape of an adult woman was unconstitutional, five states nevertheless have capitalized child rape since then, a number which the Supreme Court held in Roper was sufficient to indicate a new consensus regarding society’s standards of decency towards the juvenile death penalty.
In fact, the trend is more compelling than in Roper, given the Roper Court’s reliance on five states abolishing the death penalty for juveniles after Stanford held that the death penalty for juveniles was constitutional. Here, we have five states enacting the death penalty for child rape in spite of Coker, which held that the death penalty for rape of an adult was unconstitutional. Furthermore, it is likely that the ambiguity over whether Coker applies to all rape or just adult rape has left other states unsure of whether the death penalty for child rape is constitutional. These states may just be taking a “wait and see” attitude until the Supreme Court rules on the precise issue. Thus, the fact that only five states capitalize child rape should not pose an obstacle to the Court’s consideration of the issue, given the direction of change, i.e, an increase of five since Coker....
[Moreover,] it can be said for child rapists as a class of offenders that, unlike the young or mentally retarded, they share no common characteristic tending to mitigate the moral culpability of their crimes. Contrary to the mentally retarded and juvenile offenders, execution of child rapists will serve the goals of deterrence and retribution just as well as execution of first-degree murderers would. Our state legislature, and this Court, have determined this category of aggravated rapist to be among those deserving of the death penalty, and, short of a first-degree murderer, we can think of no other non-homicide crime more deserving.
My suspicion proved accurate: The U.S. Supreme Court has just agreed to hear the case.
Yale Law Clinic Sues Yale Law Graduate for Bad Lawyering:
There's a particularly interesting angle to the Jose Padilla lawsuit my co-blogger Jonathan Adler discusses below: Yale Law School's International Human Rights Law Clinic (representing Padilla) is bringing the suit against a Yale Law School graduate (Yoo '92), for providing bad legal advice.
Based on the complaint, I don't think Yale Law School ends up looking very good on either side of this one. Yoo's legal analysis was very weak, for reasons we have explored at length here. But I don't think the Yale Law clinic has a strong legal footing, either. First, there's an interesting question whether Yoo would be entitled to absolute immunity or only qualified immunity for the legal opinions he drafted at OLC. My quick look at the cases suggests there's no clear answer to that.
Second, while I am no expert in civil tort actions, I would think there is a significant problem with causation. As I understand it, the claim against Yoo is that he adopted legal positions in memos that permitted others to perform acts that violated Padilla's rights. I would think that is too far removed to satisfy the causation requirement for a civil tort action.
UPDATE: Duncan Hollis has some interesting throughts on the case at Opinio Juris.
Based on the complaint, I don't think Yale Law School ends up looking very good on either side of this one. Yoo's legal analysis was very weak, for reasons we have explored at length here. But I don't think the Yale Law clinic has a strong legal footing, either. First, there's an interesting question whether Yoo would be entitled to absolute immunity or only qualified immunity for the legal opinions he drafted at OLC. My quick look at the cases suggests there's no clear answer to that.
Second, while I am no expert in civil tort actions, I would think there is a significant problem with causation. As I understand it, the claim against Yoo is that he adopted legal positions in memos that permitted others to perform acts that violated Padilla's rights. I would think that is too far removed to satisfy the causation requirement for a civil tort action.
UPDATE: Duncan Hollis has some interesting throughts on the case at Opinio Juris.
Related Posts (on one page):
- Yoo on Padilla v. Yoo - Part Deux:
- Yoo on Padilla v. Yoo:
- Luban on Padilla v. Yoo:
- Steele on Padilla v. Yoo:
- Yale Law Clinic Sues Yale Law Graduate for Bad Lawyering:
- Padilla v. Yoo:
Padilla v. Yoo:
Via How Appealing comes news that Jose Padilla is suing John Yoo. A press release announcing the suit declares:
John Yoo, the author of legal memos that gave the go-ahead for government agents to use torture against terrorism suspects, was sued this morning in federal court in San Francisco. The lawsuit was brought by Jose Padilla, an American citizen seized from a civilian setting and interrogated for years in a military prison, and his mother, Estela Lebron. The lawsuit claims that Yoo, then a senior lawyer in the Justice Department, purported to provide legal justifications for torture. This is the first lawsuit against Yoo seeking to hold him accountable for the suffering unleashed by his 'Torture Memos.' Yoo's memos justified and set in motion the use of harsh and illegal interrogation methods not only abroad -- in places like Guantanamo Bay and the secret CIA 'black sites,' -- but also here in the United States.
The Chicago Tribune provides this additional background on the suit, and How Appealing has posted the complaint here. The complaint only seeks nominal damages and a declaration that Yoo authorized illegal and/or unconstitutional detention policies. Even so, I would be surprised were this suit to get all that far.
"There Was a Market Failure
and I was it" -- a great quote from Senator, Presidential candidate, and economist Phil Gramm:
A dozen years ago the then-Texas Senator had beaucoup bucks, a pile of endorsements, and a solid conservative platform [going into the primaries]. But as Mr. Gramm told us after his loss in 1997, "There was a market failure and I was it. People just didn't take to me."
From John Fund, in OpinionJournal's Political Diary.
Top Floor on the Law Blog Ivory Tower?
I'm pleased to report that we were listed as the top vote-getter in the Ivory Tower category on ABA's Blawg 100. Query what that means, but we'll take it.
AALS Conference:
I'm at the AALS conference in New York -- came in late yesterday, and I'll be here today and tomorrow. If you're at the conference, too, come by and say hello! I'll be on one of the plenaries this afternoon ("E-Expertise: How blogs, SSRN, Listservs, On-line Research Resources, and Other Electronic Technologies are Changing the Legal Academy of the 21st Century"), a hot topics panel on the Second Amendment tomorrow morning, and a panel on the future of legal scholarship tomorrow afternoon.
Were the Clintons Particularly Bad for the Democrats?
At The Corner, Mark Steyn writes that the Clintons were bad for the Democratic Party:
The Clintons' leadership of the Democratic Party was great for the Clintons, terrible for the Democratic Party: They lost the House, they lost the Senate, they lost state legislatures and governors' mansions, and in the end Clinton couldn't even bequeath the White House to his Vice-President in a time of peace and prosperity.
In a 2006 Yale Law Journal article Steve Calabresi and I presented data showing that losing power, even state governorships, as a presidential term progresses is common, not an exception. Essentially, we believe that a President and his party are a lightning rod for everything that goes wrong.
Our article can be downloaded at the bottom of this SSRN page. Particularly relevant are Figures 1 and 2 on page 2617 showing governorships by party since 1936.
UPDATE: I was amused by one of the comments below. Justin says that he knew this in high school. His comment brings to mind my observation of the three possible responses to workshop papers at the Univ. of Chicago Law & Economics Workshop in the early 1990s: (1) it's wrong; (2) it's trivial; or (3) it's already been done (usually coupled with the claim that the critic had already done it himself).
If Justin really knew in high school that the President’s party lost governorships, he should have written it up for the political science literature, because we didn’t find any political scientist who had shown this except in limited situations or any that pointed out that the backlash against the President in the states was stronger than the Presidential coattail effect. Perhaps we missed something (the field is huge), but some prominent scholars we consulted didn't mention anything directly on point. Indeed, one suggested that we do a version of our findings for a poli-sci journal.
We wrote in our Yale LJ article:
As James Campbell nicely documents, there is a backlash against the President’s party in the midterm elections for seats in state legislatures. Campbell shows that in state legislative races in presidential election years, the winning President’s party benefits from his coattails, but in midterm elections the President’s party suffers losses in state legislative races that approximately cancel out the gains from his coattails.
Further, in an article published thirty-five years ago, Stephen Turett analyzed incumbent governors’ races in 1900-1969, noticing that incumbent governors were more likely to be reelected in midterm elections if the President was of the opposing party. Turett limited his analysis of this midterm effect to incumbent governors running for re-election and interpreted it as merely offsetting the coattail effect in presidential election years.
When one adds all gubernatorial races to the analysis, as we do in Figures 1 and 2, the backlash against the President’s party in state races during a President’s term is actually stronger overall than the coattail effect in the presidential election year. To be more specific, we find that four years after a party wins a presidential election, it holds on average three fewer statehouses than it had before it won the presidential election. Perversely, winning the presidency seems to lead very shortly to losing power in the states.
Since 1932 there have been eight changes of party control of the White House (1933, 1953, 1961, 1969, 1977, 1981, 1993, and 2001). In every instance but one, the party that seized the White House held more governorships in the year before it took office than in the subsequent year it lost the presidential election. The only exception is that in 1980, Republicans held four fewer governorships than they held in 1992, immediately before the Republicans were voted out of the White House. Similarly, of the eleven Presidents since 1933, every one except two, Kennedy and Reagan, left office with fewer governorships than his party had before he took office, and Kennedy served less than three years.
In addition, if people generally understood that the blacklash / lightning rod effect is stronger than the coattail effect, I doubt that so many states would have moved their elections away from the Presidential election years in an apparently unsuccessful attempt to reduce the effect of Presidential elections on state elections for governorships.
Thursday, January 3, 2008
Nonsense:
Also from the resolution "Combating defamation of religions" passed by the U.N. General Assembly (see the post below):
Affirms that the Human Rights Council shall promote universal respect for all religious and cultural values and address instances of intolerance, discrimination and incitement of hatred against any community or adherents of any religion ...
"[U]niversal respect for all religious and cultural values"? Surely this is patently impossible, and in fact contradicted within the same resolution by a provision that says, "Urges States to ensure equal access to education for all, in law and in practice, including access to free primary education for all children, both girls and boys, and access for adults to lifelong learning and education based on respect for human rights, diversity and tolerance, without discrimination of any kind, and to refrain from any legal or other measures leading to racial segregation in access to schooling." Holy war against nonbelievers is a religious value. Racial segregation is to some a religious value and to some a cultural value. Lesser education for girls than boys is to some a cultural value that is at least imbued with religious tradition.
True, they are bad religious and cultural values — but unless one redefines "religious and cultural values" to mean "good religious and cultural values," they surely are religious and cultural values. So either the statement is patently impossible, or (if one does redefine the phrase the way I alluded to) tautological and thus lacking in meaning. But I suppose meaning is too much to expect in this context.
U.N. General Assembly Urges Prohibition of "Ideas ... Aimed at Any Religion or Its Followers That Constitute Incitement to ... Hostility":
Jurist reports this happens last month, and points to this version of the resolution as the one that was passed. The paragraph I quoted above says that the UN General Assembly "Urges States to take resolute action to prohibit the dissemination of racist and xenophobic ideas and material aimed at any religion or its followers that constitute incitement to discrimination, hostility or violence."
I think U.S. law is right to protect even racist viewpoints, as well as ones that advocate violence. But surely it is right to protect ideas that incite mere hostility to a religion. Anyone who argues Scientology, fundamentalist Christianity, fundamentalist Islam, or for that matter religion generally is foolish or dangerous will say things that are aimed at a religion and constitute incitement to hostility to a religion. The General Assembly resolution aims at the heart of the sort of speech that's necessary for free debate about ideas, not just at the periphery.
I noted two years ago that a similar resolution had been promulgated by the U.N. Office of the High Commissioner for Human Rights Resolution; now it's the U.N. General Assembly. Fortunately, this vote was 95-52, with nearly all the developed countries voted against. Let's hope that coalition continues to hold over the years.
Edwards on Corporate Greed.--
I am watching John Edwards' speech attacking corporate greed (he used the phrase at least 2 or 3 times). One of Edwards' examples of outrageous behavior by a corporation: Maytag closing its plant in Newton, Iowa.
Before posting I saw that Glenn at Instapundit had similar feelings about the speech:
Meanwhile, on the Democratic side, John Edwards is the big loser. Not from the vote, but from the absolutely awful speech he's giving right now. I think he knows it's awful, too, as he's blinking about twice per second.
Indeed!
Obama Declared Winner.--
Fox is declaring Obama the winner in Iowa.
UPDATE (9:50pm): With nearly 90% of the Democratic votes in, Obama is leading by 7% (at 37%). Edwards and Clinton are tied at 30%.
Related Posts (on one page):
- Obama Declared Winner.--
- Huckabee Declared Projected Iowa Winner.--
Huckabee Declared Projected Iowa Winner.--
Fox News is presenting Huckabee as the projected winner in Iowa—“an early blowout for Huckabee."
The Democratic results so far show three candidates in a virtual tie.
1st UPDATE (9:05pm ET): With 25% of precincts reporting, Obama leads Edwards and Clinton by 1%. Obama also led in Fox entrance polls. And I see that Des Moines County and Johnson County (Iowa City) have yet to report, both presumably areas of strength for Obama.
2d UPDATE (9:13pm ET): With half of the counts in, Obama now leads by 2%.
3d UPDATE (9:17pm ET): Still virtually no results from Story County (Ames-Iowa State U.), Des Moines County, and Johnson County (Iowa City-U of Iowa).
4th UPDATE (9:22pm ET): Still nothing from Linn County (Cedar Rapids). Obama leads by 4% over Clinton and Edwards.
5th UPDATE (9:27pm ET): I should note that the reports showing 71% of the Democratic precincts reporting is even more misleading than usual. Even within particular counties, it appears that the smaller precincts may be in, but the larger precincts are still not reporting. All this looks good for Obama and bad for Edwards.
Related Posts (on one page):
- Obama Declared Winner.--
- Huckabee Declared Projected Iowa Winner.--
Law Review Submissions Policy:
An articles editor for a Top 20 law review writes:
I have for some time been thinking that it would be best to simply eliminate accepting paper copy submissions for [our law review]. The online system we primarily use (and where we receive the vast majority of our submissions) is far superior to paper copies. Indeed, the only thing that paper copies do from my end is give me more tedious work that cuts into the substantial time I must give to other editing responsibilities, as I must log each submission my hand. It does so while giving authors no benefit that I can see.
I thus see no point to paper copies. They only add work for absolutely no benefit. I hear, however, that some professors actually prefer sending paper copies. The only halfway decent justifications I have heard are (1) that they can send a personalized cover letter via mail (this justification makes no sense as our online system allows for the submission of cover letters); and (2) that authors think they have a better chance of getting their submission promptly reviewed because the editor who reviews paper submissions will give them a quick look when logging them into the law review's system. This latter explanation is at least plausible, but my experience is that this gives the author no advantage over online submissions, as I and other editors do the same thing with online submissions.
I write to ask for your help. I would like more information on this issue from professors. As your blog is read by a wide array of professors, I was wondering if you could put a post on your blog asking professors to comment on this issue, so I and others can get better information.
A good question; what do our law professor readers think?
California Sues EPA Over Waiver Denial:
California filed suit against the Environmental Protection Agency challenging the EPA's denial of a waiver of preemption under the Clean Air Act for the state's greenhouse gas emission regulations. Here's coverage in the Washington Post and New York Times.
One interesting aspect of the suit, discussed here on the Warming Law Blog, is that California filed suit in the U.S. Court of Appeals for the Ninth Circuit, rather than in the D.C. Circuit. Most assume the Ninth Circuit would be more receptive to California's arguments, but most also assumed the suit would be filed in D.C., so what gives? According to the Sacremento Bee:
Generally, decisions by federal agencies must be challenged in the District of Columbia Court of Appeals, which tends to be more conservative than the 9th Circuit.Was this a deliberate choice by the EPA or an oversight? A third option: EPA legal staff working who drafted the Administrator's letter to EPA knowingly left it out, and none of the political appointees caught it. In any event, seeing this suit in the Ninth adds an interesting twist.But lawyers backing California argue the state isn't constrained to file in Washington, D.C., because the Dec. 19 ruling left out key language stating that the decision was "of national scope and impact."
"They did not put that boilerplate in, so we can challenge it anywhere," said attorney David Bookbinder of the Sierra Club, which has worked with the state to defend the emissions law.
Related Posts (on one page):
- California Sues EPA Over Waiver Denial:
- Does It Matter EPA Staff Opposed Waiver Decision?
- What Next for Federal GHG Emission Rules?
- Alternative Views of the EPA Waiver Decision:
- EPA's Decision to Deny California's Waiver Request:
- EPA Denies California's Waiver Request:
- California Sues EPA for Waiver Decision:
Advantage--Prediction Markets!:
Robert Shiller, a Yale economist who had argued for years that a bubble was forming in real estate prices, points out that one group was on target about where prices would go - investors in a real estate futures market that he helped set up on the Chicago Mercantile Exchange.
Starting in May 2006, the CME set up futures contracts for 10 metropolitan real estate markets, allowing investors to bet whether prices would go up or down and by how much.
By the end of 2006 those futures were pointing to real estate price declines between 5 percent and 7 percent in those markets, Shiller said. That ended up in line with the 6.7 percent annual decline in the October reading of S&P/Case-Shiller home price index, which was the largest drop recorded in that 20-year-old price measure.
"I'm not normally an advocate of market efficiency, but there's something to be said when you're putting money on the line with your prediction, rather than just talking," he said.
Those futures today are far more bearish about future housing prices than most current economists - foreseeing an additional 4 percent to 14 percent drop in prices over the next year.
Wednesday, January 2, 2008
Law School Classes One Should Definitely Take If One Wants To Practice in the Area:
Last year I posted, and asked our readers, about classes every law student should take. A reader now asks a related question:
I'm not sure what field of law I want to practice so I am constantly wracking my brain trying to figure out what classes I should take as my 2nd and 3rd year electives. Although, after studying law for a semester, I am more comfortable with the idea that by spending enough time reading hornbooks and extensively researching, a lawyer can start to practice in a field in which he didn’t take a single class while in law school, I am concerned that there may be some field(s) of law in which it might be significantly harder than others to do that. I’d like to know about that so that I can weigh taking classes in such an area....
Any thoughts?
How Political Ignorance Causes Political Nepotism:
In a September interview with the New York Sun, the soon-to-be assassinated Benazir Bhutto explained how political ignorance fosters political nepotism by leading voters to support canddiates who are relatives of popular politicians (hat tip Kerry Howley):
Q: Why do you think that the U.S. seems to have a harder time with women at the highest level of power than other countries?
A [Benazir Bhutto]: In a country like Pakistan or India, when a charismatic leader dies, people are not sure that the traditions he symbolized will continue—there’s a lot of illiteracy and there isn’t the same access to information. So they tend to transfer allegiance from a male leader to a female descendant, in the hope that his policies will be continued. But in Westernized societies, it’s a little different, because people have greater education and greater access to information—they don’t have the same need to be sure of the message of the leader.
Because voters know very little about the details of candidates' ideology and issue positions, they use a candidate's family affiliation with a popular political leader as an information shortcut. Voters could instead analyze each candidates' qualifications and ideology in detail (though, as Bhutto noted, that may be impossible for those who are illiterate or poorly educated). However, rational ignorance ensures that most of them have neither the time nor the incentive to do so. Bhutto herself, of course, rose to power in Pakistan in large part because voters associated her with her father, a popular politician who had been executed by a military dictator in 1979.
Bhutto was wrong to assume that this logic is limited to female politicians in economically backward societies. Right here in the United States, George W. Bush would probably never have become president if not for the voter name recognition he enjoyed by virtue of being the son of a former president. Hillary Clinton would not now be a frontrunner for the Democratic nomination if not for her association with her popular ex-president husband. Few of the many Kennedys who have achieved elected office would have done so absent their family name. To paraphrase one of Senator Ted Kennedy's electoral opponents, he would never have made it to the Senate if his name were not Edward Moore Kennedy but Edward Moore.
Is this kind of ignorance-induced voter nepotism a bad thing? I would suggest that it often is. Political leaders who achieve high office in large part because of nepotism are likely to be less qualified, on average, than those who reach it by virtue of their own achievements. This is not surprising; it takes a lot less ability to win office on your daddy's or spouses coat tails than to do so without it. George W. Bush's incompetence on many issues is a case in point. Most of the Third World politicians who became heads of government by this means were also failures in office (see the examples Kerry Howley gives in her post linked above). Benazir Bhutto, for all her recent courage in opposing military dictatorship and radical Islamism, was ineffective in her two terms as prime Minister of Pakistan in the 1990s. Isabel Peron's disastrous term as president of Argentina after the death of her husband Juan Peron helped set the stage for a brutal military dictatorship (not entirely unlike the way that Bhutto's failures in office helped pave the way for Purvez Musharraf's military coup).
On rare occasions, the nepotism information shortcut pays off. Winston Churchill was first elected to Parliament in large part because voters associated him with his father, Lord Randolph Churchill, a popular Conservative politician of the 1880s. However, Bush, Bhutto, and the lesser Kennedys are more typical beneficiaries of ignorance-induced political nepotism than Churchill.
As Bhutto pointed out, this form of nepotism does have one potential advantage: it can sometimes pave the way for women to reach high office in sexist patriarchal societies that might not otherwise accept them in such positions. I don't deny that such achievements have some symbolic value. But I'm not convinced that they're worth the high price we pay for them in the form of policy disasters caused by poor leadership. Moreover, it's not clear how much of a breakthrough for women such events really represent if people recognize that the women in question reached high office primarily because of their family connections. To my mind, the true breakthroughs for women in underdeveloped societies are likely to come when their opportunities and social status increase as a result of economic development. Ineffective political leaders of either gender are likely to set back such development - and with it the cause of women's rights.
Limiting Drunk Drivers to Small Vehicles:
A friend of mine mentioned that he'd heard that in Austria, people who had some number of drunk driving convictions were allowed to drive only a particular kind of very small car. That struck me as an intriguing idea.
Naturally, to implement this, the legal system would have to decide what the threshold number should be, and also how long they should lose the license for altogether. At one point on the continuum, one might not want to constrain the driver at all. At the other extreme, one might insist on barring the person from driving altogether. Still, I take it that at some intermediate point one might conclude that
(1) someone is enough of a menace that their liberty to drive should be constrained at least for some time even once they're let out of jail, but
(2) it would be too much of an economic burden on them and their families to strip them of a driver's license altogether.
If that's so, why not limit the person to the kind of vehicle that would cause the least possible damage to others, if it is driven drunk? It's true that all motorized vehicles can kill people other than the driver, but some are more likely to do so than others. If the person is to be let out on the road, might as well minimize the risk to bystanders.
One possible mandatory vehicle is a motorcycle, though perhaps there the risk of injury to the driver in case of an accident (which can of course be a non-drunk-driving accident, or even one in which the driver is largely innocent). Another might just be a very small car. True, there's a tradeoff between risk to people in other cars and risk to the driver's passengers. But I take it that most adult passengers are more likely to have in some measure knowingly assumed the risk than are outsiders, since they know they're getting into a small and thus somewhat more dangerous car. I would have some concern for their welfare, but not as much as for the welfare of the drivers and passengers of other cars.
Finally, while this is obviously a restraint on liberty, it strikes me as a pretty justifiable one (assuming it works). Drunk driving is rightly made a crime; the legal system may well constrain a person's liberty for committing this crime, especially since he has shown himself to be something of a menace to others' lives. This solution may preserve more of the drunk driver's liberty than the alternative, since the alternative may well, at least in some situations, be a total ban on driving. One can also try this sometimes-useful (though of course hardly perfect) libertarian rule of thumb for deciding the proper rules for government-owned shared resources: If the resources were privately owned, would reasonable owners who had full information about their customers impose such a constraint on their customers in order to better protect other customers? The answer, I think, would be yes (again, assuming the proposal works), which would cut in favor of this proposal.
But that's just my quick and tentative reaction; I'd love to hear what others think. I'd also like to know something more than just a vague, unsourced rumor about whether any jurisdictions have indeed experimented with this.
Equino-Human historical fantasy fiction:
My Independence Institute colleague Rob S. Rice has written a new book of historical fiction, titled Archival: Most Secret. The book tells three loosely-related stories: about a dissolute Scottish officer who ends up fighting in the Battle of New Orleans, about the declining years of Randolph Churchill, and about a British airman who is shot down over Crete in WWII. The common thread of these stories is a secret British ministry which has been involved with human-animal transformations. Each of the stories involves an equine-related transformation. You can order the book for $14.95 from Lulu, where you can also read the opening pages. I thought that the stories were interesting, and that all of them picked up steam as the stories progressed. That said, the format of the book (reproducing the full text of various documents purported to come from secret British archives) results in the plot moving forward relatively slowly on a per-word basis--especially in the Churchill story. But if you like horses and U.K. historical fiction, it's worth your time to read a few pages, and decide if the book is your cup of tea.
Methods of Execution in France, 1792 to 1981:
Sorry for the gruesome subject matter, but my post on foreign law and methods of execution brings to mind the practices used in one of the countries popular among the Justices who favor looking to foreign law: France, or as Justice Breyer would put it, La République Française.
Wikipedia has a fascinating history of methods of execution in France. It seems that from 1792 to 1981, when France abolished capital punishment, the only allowed method of execution was the Guillotine. The Guillotine was originally designed in the late 18th Century to be a more humane method of execution: the idea was that it would be fast, painless, and certain.
Wikipedia has a fascinating history of methods of execution in France. It seems that from 1792 to 1981, when France abolished capital punishment, the only allowed method of execution was the Guillotine. The Guillotine was originally designed in the late 18th Century to be a more humane method of execution: the idea was that it would be fast, painless, and certain.
The basis for the machine's success was the belief that it was a humane form of execution, contrasting with the methods used in pre-revolutionary, ancien régime (former regime) France. In France, before the guillotine, members of the nobility were beheaded with a sword or axe, while commoners were usually hanged, a form of death that could take minutes or longer - other more gruesome methods of executions were also used, such as the wheel, burning at the stake, etc. In the case of decapitation, it also sometimes took repeated blows to sever the head completely. The condemned or the family of the condemned would sometimes pay the executioner to ensure that the blade was sharp in order to provide for a quick and relatively painless death.However, it seems that the use of the Guillotine was plagued by concerns that it was not as swift and painless as it was designed to be. Critics argued that in fact those executed by the Guillotine suffered greatly in the seconds after the blade fell:
From its first use, there has been debate as to whether the guillotine always provided as swift a death as Dr Guillotin hoped. . . . . [in light of] the possibility that the very swiftness of the guillotine only prolonged the victim's suffering. The blade cuts quickly enough so that there is relatively little impact on the brain case, and perhaps less likelihood of immediate unconsciousness than with a more violent decapitation, or long-drop hanging.Anyway, that's Wikipedia's take; I don't know how accurate it is.
Audiences to guillotinings told numerous stories of blinking eyelids, moving eyes, movement of the mouth, even an expression of "unequivocal indignation" on the face of the decapitated Charlotte Corday when her cheek was slapped. Anatomists and other scientists in several countries have tried to perform more definitive experiments on severed human heads as recently as 1956. Inevitably the evidence is only anecdotal. What appears to be a head responding to the sound of its name, or to the pain of a pinprick, may be only random muscle twitching or automatic reflex action, with no awareness involved. At worst, it seems that the massive drop in cerebral blood pressure would cause a victim to lose consciousness in several seconds.
What Does Foreign Law Teach Us About the Constitutionality of Methods of Execution?:
Several Supreme Court Justices believe that foreign law and practice can help elucidate the meaning of the United States Constitution. They contend that the experience and practices of other countries are relevant to the meaning of our founding charter; what works for other countries may work for us, and we need to be open-minded to the practices and experiences of other nations rather than be arrogant and think other countries have nothing to teach us. This raises an interesting question for those following Baze v. Rees, next week's case on the constitutionality of methods of execution: In countries that have the death penalty, how do they carry out their executions?
Unfortunately, I couldn't find a good summary of the methods of execution in all 74 countries that have the death penalty. However, I did learn that the clear leader in terms of experience with capital punishment is China: It is estimated that China is responsible for about 80% of the executions worldwide every year. In China, the traditional method of execution appears to be the firing squad. Here's how one website described the process:
In any event, China is of course only one example. Those who believe foreign practices are relevant to the meaning of the U.S. Constitution would want to look more broadly at many other nations, including Saudi Arabia and Iran, two countries with high execution rates. And of course I'm not endorsing this method of Constitutional interpretation: I happen to think practices in China and elsewhere are utterly irrelevant. But I thought it would be interesting to start the inquiry for those who believe that foreign practices inform the meaning of the U.S. Constitution.
Unfortunately, I couldn't find a good summary of the methods of execution in all 74 countries that have the death penalty. However, I did learn that the clear leader in terms of experience with capital punishment is China: It is estimated that China is responsible for about 80% of the executions worldwide every year. In China, the traditional method of execution appears to be the firing squad. Here's how one website described the process:
Executions are often carried out immediately after a public sentencing rally and the criminal's family is made to pay for the bullet. The prisoner's arms are shackled behind them and they are made to kneel down before receiving a single bullet fired at close range into the back of the head or neck by a soldier or policeman or by a bullet fired into the heart from behind using an automatic rifle.However, there is a growing movement in China to replace this with lethal injection; lethal injection was first used about ten years ago and appears to be gaining in popularity as a more humane method of execution. According to the USA Today, lethal injection in China is implemented using so-called "death vans," mobile execution chambers that travel from town to town. One person has estimated that as much as 40% of Chinese executions currently are carried about by the "death vans" instead of by firing squad. Unfortunately, I was unable to find anything on the specific cocktail of drugs the "death vans" use to carry out executions in China.
In any event, China is of course only one example. Those who believe foreign practices are relevant to the meaning of the U.S. Constitution would want to look more broadly at many other nations, including Saudi Arabia and Iran, two countries with high execution rates. And of course I'm not endorsing this method of Constitutional interpretation: I happen to think practices in China and elsewhere are utterly irrelevant. But I thought it would be interesting to start the inquiry for those who believe that foreign practices inform the meaning of the U.S. Constitution.
D.C. Fires Its Gun Lawyer:
Tony Mauro reports on an interesting development in the District of Columbia v. Heller, the pending Second Amendment case before the Supreme Court. Despite his work on the District's primary brief, Alan Morrison has been fired by the city, apparently because he was seen as a "loyalist" of ousted D.C. attorney Linda Singer. Morrison is an excellent lawyer, so I find the District's actions hard to fathom — but I suppose it's also a bit of bizarre good news for the gun rights side in the case. (Hat tip: How Appealing.)
UPDATE: The Washington Post reports here.
Rudy Giuliani and the Authoritarianism Question:
I very much appreciate John McGinnis's libertarian case for Rudy Giuliani. At the same time, it seems to me that there's a significant objection to Giuliani from a libertarian perspective: Many consider him the most authoritarian of the Republican nominees and the least concerned with the Rule of Law. (To get a flavor of the critiques, consider this video exchange between Megan McArdle and Dan Drezner. For a particularly harsh critique from a left perspective — over the top, in my view, but worth mining for evidence amidst the rhetoric — see here). I'd be very interested in hearing responses to these concerns from libertarianish Giuliani supporters.
Overlawyered.Com:
I like this site, and if you do too, you might want to vote for it in the ABA's Blawg 100 "Generally Speaking" category. "You may vote for as many blawgs as you wish, but you can vote for any particular blawg only once." (I voted for How Appealing as well as Overlawyered.)
Prof. Rick Garnett on Why He Supports Fred Thompson for President:
From Prof. Rick Garnett — please see here for more on this feature:
A candidate for President should present to the voters a reasonably attractive personality, experience and evidence of sound judgment, a clear-eyed understanding of the challenges and opportunities our Nation faces, and an array of plausible, sound policy proposals. (Fundraising prowess and skeleton-free closets are nice, too.) He or she should also — and this is crucial — understand and appreciate the close, rich connection between the enjoyment of human liberty and the structural features of the limited government for which our Constitution is a blueprint.
An eminent scholar of constitutional law, echoing James Madison and many other luminaries, has observed that "[t]he genius of the American Constitution lies in its use of structural devices to preserve individual liberty." I agree. And, in my view, the candidate who seems most inclined, and best prepared, to honor this "genius" is Sen. Fred Thompson.
Every candidate has a stump speech and each has floated, endorsed, and promised — ideally, without contradiction or inconsistency — a dizzying array of programs, initiatives, and — of course — "changes." Informed voters realize, though, that so much of what presidential candidates propose and embrace is, to a great extent, beyond the practical capacity of Presidents to get done. A candidate can say — and they all do — that he or she will "reform health-care" or "restore traditional family values" or "defend our borders", but sophisticated citizens understand that a President's ability to deliver these goodies is constrained by Senate rules, powerful House Committee chairpersons, the stock market's performance, and the like.
We need to ask, then, not only about a candidate's grab-bag of wonkery and litany of bullet-points, but also about his or her animating commitments. Sen. Thompson has staked out what I think are realistic and responsible positions on a wide range of important issues. More important, though, he has developed and shared, in a way that goes well beyond candidates' usual sound-bite sloganeering, the "first principles", which arise "out of the documents of Nation's founding and the wisdom of the ages", and that "guide [his] approach to the issues that are crucial to our Nation's future." (Go to the campaign web site, and see for yourself.) This exposition is one that, in my view, commends Sen. Thompson's candidacy to all of us who value the rule of law and cherish our Constitution's particular "genius."
Sen. Thompson understands — as did the Framers — that (in his words) "[g]overnment must be strong enough to protect us, competent enough to provide basic government services, but limited by the delineated powers in the Constitution." To achieve and maintain such a government — in a way that protects and respects human freedom — is, of course, no small challenge. Our constitutional response to this challenge reflects the considered belief that, as the Supreme Court has put it, "liberty of the person inheres in [constitutional] structure." Put differently, and as Chief Justice Rehnquist observed, this "constitutionally mandated division of authority was adopted by the Framers to ensure protection of our fundamental liberties."
These are not airy abstractions, far removed from real-world, "kitchen table" concerns. Our President must understand — and I believe Sen. Thompson does — the Constitution's end (human freedom) and means (federalism, separation of powers, and limited government). This matters more, all things considered, than the extent to which his canned debate answers please dial-turning focus-group members. "Our Constitution," he recognizes, "innovatively guarantees our liberties by spreading power among the three branches of the federal government, and between the federal government and the states."
(For more from Sen. Thompson on this point, go here.)
Now, among the President's most important responsibilities — second only, perhaps, to his national-security duties and his obligations as Commander in Chief — is the identification, nomination, and support of Executive officials and federal judges who understand the Constitution's "innovative" design and their own role in its service. They must be willing to enforce the Constitution's limited-government and separation-of-powers features and, at the same time, respect the limits on their own powers. Federal judges must appreciate — they must really believe — that the Constitution protects freedom not so much by authorizing them to resolve divisive moral and policy questions as by structuring government in a way that facilitates the enjoyment of ordered liberty.
No doubt, the valuable assistance Sen. Thompson provided during the confirmation of our new, excellent Chief Justice both confirmed and deepened his understanding of the importance of good judges. And, once again, Sen. Thompson's clear statement of "principles" justifies our confidence: "A free and independent judiciary that interprets the law by adhering strictly to legal text and respects its limited role in our system of government is essential to our security and freedom, and we need judges who understand that role if we are to preserve our republic and freedom."
Finally, this last statement adds texture to Sen. Thompson's firm, consistent, multi-faceted commitment to the dignity of human life, which has earned the respect and endorsement of a wide range of pro-life groups and individuals. Some might wonder whether Sen. Thompson's pro-life views are in tension with his limited-government principles. They are not. Quite the contrary, in fact. At the end of the day, no political community can be what ours aspires to be if it excludes children in the womb entirely from the law's protection. Even a limited government limits private violence. Putting aside the merits of the moral question, though, there exist few greater insults to the freedom-protecting structural features of our Constitution than the Supreme Court's gross and arrogant overreaches in the Roe and Casey decisions. Only a presidential candidate who sees — as Sen. Thompson does — these rulings for what they are can, at the end of the day, be taken seriously as a friend of ordered liberty through limited government.
Related Posts (on one page):
- Prof. Rick Garnett on Why He Supports Fred Thompson for President:
- Prof. Brad Smith on Why He Supports Mitt Romney for President:
- Prof. David Beito and Scott Horton on Why They Support Ron Paul for President:
- Prof. John McGinnis on Why He Supports Rudy Giuliani for President:
- Libertarianish Law Professors on Why They Support Their Presidential Candidates:
Prof. Brad Smith on Why He Supports Mitt Romney for President:
From Prof. Brad Smith -- please see here for more on this feature:
For politically oriented libertarians, politics is the art of picking the most libertarian candidate who has a chance of winning.
Bill Richardson has no chance of winning, and the other Democratic hopefuls offer nothing to supporters of limited government. On the Republican side, we can safely skip the Ron Paul debate -- he is not going to be the next president of the United States. John McCain sometimes blunders into support of limited government, but his usual reaction to his personal whim of the day is that government should do something about it. And, his honorable service to his country notwithstanding, his unstable personality and temper make him uniquely unqualified for the presidency.
That leaves three electable candi