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Saturday, February 23, 2008

Media miscoverage of the role of man-made chemicals in disrpupting human or animal reproduction:

That's the topic of my media column in today's Rocky Mountain News. The column also expresses skepticism about the benefits of Gannett buying Colorado's leading college newspaper, about media coverage of Obama and Clinton, and about Maureen Dowd.

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More on Scott v. Harris: A Reply to Kahan, Hoffman, and Braman: A few weeks ago, I was debating the very interesting Kahan/Hoffman/Braman article on Scott v. Harris here at the blog. First, I wrote up a critique of the article; then, KHB wrote up a response. I never finished my reply; I wrote half of it, but left that half unposted. Last week I ran into Don during a faculty event and I mentioned this to him, and he expressed interest in hearing more. In that spirit, here are my better-late-than-never (I hope!) reactions to KHB's response.

  I want to focus on two arguments that KHB make in their response. The first is that the Supreme Court did characterize the car chase in lots of different ways, which then provides KHB with many different ways of testing people to see if they disagree with the Court's view of the facts:
Using various, diverse formulations, Justice Scalia emphasized over and over that summary judgment was warranted because the tape revealed that Harris’s driving posed a high degree of risk—more certainly, than is present whenever one happens to drive a car at a high speed down the highway—to the lives of others. See, e.g., 127 S. Ct. at 1775-76 (“the video . . . closely resembles a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury”); id. at 1778 (“it is clear from the videotape that respondent posed an actual and imminent threat to the lives of any pedestrians ..., to other civilian motorists, and the other officers”); id. at 1779 (“The car chase that respondent initiated in this case posed a substantial and immediate risk of physical injury to others; no reasonable jury could conclude otherwise”).
As I understand KHB, the diversity of statements that the Court makes justifies assessing the sample's view of whether they agree on these different variables suggested by the Court's opinion.

  I look at this differently. True, Justice Scalia says a lot of things about the car chase that go beyond applying the facts to the law. But what's the relevance of these statements? I doubt they have any. As we know, Justice Scalia can be prone to exaggeration. Given that, I read the various claims that Scalia makes about the car chase as just Nino being Nino. Saying the car chase is dangerous couldn't be enough for Scalia; he would have to say it was "a Hollywood-style car chase of the most frightening sort." I don't see this as "the Court's" conclusion, but rather as the reflection of the writing style of one particular Justice. (This is just speculation, but I wouldn't be terribly surprised to learn someday that Scalia's first draft was more over-the-top, and that some of the other Justices joined only if Scalia took out some of the more extreme statements.) As I see it, what really matters is the legal line the Court drew and the Court's decision that this case fell on one side of the line. Assessing whether members of the public agree with Scalia's colorful characterizations is interesting, but I'm not sure it sheds a lot of light on the substance of the Court's decision in Scott v. Harris.

  The second point KHB make is that asking participants to comment on the reasonableness and relative culpability of Scott's conduct helps tell us whether the Justices properly applied the Fourth Amendment:
It’s true, as Orin notes and as we discuss in the paper, that these issues wouldn’t be submitted to a jury under the apparent, bright-line rule that Justice Scalia announced: “A police officer’s attempt to terminate a dangerous high-speed chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.” 127 S. Ct. at 1779. But Justice Scalia’s justification for such a rule was that there was only one reasonable way to assess the balance of risks in a case like Scott. We wanted to find out whether ordinary people—whose judgments presumably are part of the reasonableness calculus—would agree. Our finding that in fact members of diverse subcommunities balance the risks differently (from one another and from the Court majority) raises the normative question whether the Court should have formulated a test that bars a jury from considering this matter.

Rather than ask these additional questions, we could, of course, have asked our respondents merely to “decide” Scott based on “the test the Supreme Court used,” as Orin urges. But since we were interested in facilitating an evaluation of whether that test is a good one (the usual ambition of scholarly commentary on legal doctrine), doing that wouldn’t have advanced our aims. We also think a survey limited to that issue wouldn’t have yielded results nearly as interesting and rich as the ones we obtained.
  That's an interesting response, but it's really about KHB's substantive vision of the Fourth Amendment — A substantive vision that the Supreme Court has not endorsed, and that I think would pretty dramatically transform the Fourth Amendment if it were adopted. The vision seems to be of a Fourth Amendment as reflection of popular will, as a command for the police to act as the people would want them to act. If everyday people would balance the risks a particular way, the thinking goes, then the Justices should try to balance it that way too — of if they can't do it, they should get out of the way and let juries do this. In effect, this approach uses juries in lieu of legislation. It seeks to have juries evaluate police conduct and reflect the will of the people through their judgments.

  This certainly is an interesting approach, but I think it's quite different from the approach of the modern Fourth Amendment. The modern Fourth Amendment is premised on judges and Justices imposing rules on the police; the courts set the rules, not the people. Indeed, juries almost never play a role in the Fourth Amendment. Most Fourth Amendment issues come up in the setting of motions to suppress that are decided by judges. True, the doctrine often relies on concepts such as "reasonableness," but it is reasonableness as measured by the judges not by the public. In that way, the judges create a set of rules that the police must follow in criminal investigations.

  Now, maybe the Fourth Amendment we have is problematic; perhaps the Fourth Amendment should be overhauled. Perhaps we should have a more people-focused set of rules — either through more civil actions and jury trials or more reliance on legislation — than the judge-focused rules we have now. But that argument seems pretty distinct from the "cultural cognition" concerns that I had understood to be the point of KHB's paper. I sense that there is a mixing of arguments in the paper that needs to be more clearly separated: There's one argument about the need for self-awareness in construing evidence, and another argument about a new substantive vision of what the Fourth Amendment should become. The two are different, and I tend to think that the paper too readily treats the latter as a sort of subset of the former.

  Finally, to the extent the paper reflects an interest in increasing the amount of jury participation in Fourth Amendment cases, I think it's very important to consider the role of qualified immunity doctrine. Consider how these cases play out. Fourth Amendment civil cases pretty much always litigate the merits and qualified immunity together. The plaintiff brings a Fourth Amendment claim, and the defendant asserts the qualified immunity defense and then moves for summary judgment. Under Saucier v. Katz, the court has to accept the allegations of the plaintiff as true and first resolve the Fourth Amendment issue. If the court finds that the alleged facts would amount to a Fourth Amendment violation, it then needs to decide if the issue was close or really very obvious. If the issue was close, qualified immunity kicks in, the suit is dismissed, and the case never gets to a jury. Cases only go to a jury if the alleged facts very clearly involved a Fourth Amendment violation. The case then goes to trial to see if the plaintiffs can prove those alleged facts.

  Unless I'm mistaken, KHB do not discuss qualified immunity beyond their discussion of the facts in Scott v. Harris. But I think the qualified immunity doctrine already blocks Fourth Amendment civil cases from playing the role that KHB want the Fourth Amendment to play (and that they criticize the Court for interrupting). To oversimplify, qualified immunity keeps Fourth Amendment issues away from juries unless it is pretty clear that the police violated the plaintiff's rights. Not only does this sharply limit the jury's role, but it also means that the jury's role hinges on the clarity of Fourth Amendment law. The jury only gets to play a role if the courts have clearly settled the law, making the rights violated "clearly established." To the extent that KHB want juries to have a role in establishing the law, qualified immunity prevents this from happening: juries don't even get the cases unless the law has been established clearly first by the courts.

  In my view, the current role of qualified immunity doctrine reiterates my sense that there is a lot of normative Fourth Amendment theorizing going on in KHB's paper that needs to be more clearly acknowledged. For the jury to play the role that KHB want — or at least, that I think they want, to the extent I understand their aims correctly — I would think that modern qualified immunity law would need to substantially reworked for the vision to work. Whether you think this is a good idea or a bad one, at this point we're talking about a lot more than how to construe a videotape.

  Anyway, those are my thoughts. It's always hard to return to half-written comments and to try to finish them in a coherent way, so I hope the comments made at least some sense.
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Once Blighted, Always Blighted:

One of the many serious problems in current eminent domain law is that many states have definitions of "blight" so broad that virtually any area can be declared blighted and thereafter subject to condemnation whenever local governments want. I have often written about this problem (e.g. - here). A less-recognized, but also serious problem is that once an area is declared "blighted," many state laws allow the designation to persist for decades. Blight designations - and the associated power to condemn property - are allowed to persist even if local conditions change and even if there is no proof that condemnation is actually necessary to eliminate any blight that remains.

As I discuss in my paper on recent eminent domain reform efforts, California is one of many states with a broad definition of blight that allows condemnation of almost any property. However, back in 1993, the state legislature enacted a modest reform law that set a deadline of 40 years or January 1, 2009 (whichever comes later) for the completion of blight redevelopment plans begun before 1994. After the deadline, local governments could not condemn property in the "blighted" area without first getting a new blight designation (which in California is usually easy to do). Indeed, the 1993 law was enacted at the behest of California local governments themselves in order to " stave off more radical" reform efforts.

However, even this modest restriction is now unacceptable to California planning bureaucrats and the private interests that benefit from taking over condemned property in "blighted" areas. As Dan Walters of the Sacramento Bee reports (hat tip: Tim Sandefur), they are trying to get the state legislature to pass a bill to extend the deadline in the 1993 law, so that the over forty year old blight "redevelopment" plans that expire on January 1, 2009 will still be able to license condemnation after that date.

I don't think you have to be a development expert to realize that a redevelopment plan that has failed to eliminate "blight" even after over forty years of trying is probably not going to succeed now. Indeed, long-lasting blight designations are likely to impede development more than promote it. After all, people are likely to hesitate to invest their money in property that could be condemned at any time. Endless blight designations are therefore unlikely to actually help develop communities - even those that are genuinely "blighted" as opposed to merely designated as such under expansive state laws. But permanent condemnation authority is a treasure trove for local politicians. They can use it to transfer condemned property to influential developers and other interest groups that can help them stay in power.

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Geographical Gun Control Research Project:

David Bernstein recently noted Illinois State Senator Barack Obama's 1999 proposal for a federal law against licensed firearms dealers operating within five miles of a school or park. Every town I've ever visisted which has more than a few dozen inhabitants has either a school or a park. Hypothesizing that the ban would apply to city parks (e.g., Central Park in New York City) but not to National Parks, pick a geographical region, and describe where a licensed firearms dealer could operate. Or pick a geographic point (e.g, Houston)and identify how far a peson would have to drive in order to get to the closest point where a gun store could legally be located. Extra credit for illustrative maps.

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Friday, February 22, 2008

Self-Selection and Ideological Imbalances in Academia:

A recent paper by Matthew Woessner and April Kelly-Woessner argues that much of the massive ideological imbalance in academia may be due to self-selection. Theis survey evidence shows that conservative undergraduates are less interested in doing original academic research and developing a "philosophy of life" than liberal ones, while showing greater interest than liberals in making money and raising a family. The authors claim that these differences in attitude are likely to lead liberals to self-select into academia and conservatives to self-select against it.

Woessner and Kelly-Woessner emphasize that these self-selection arguments are not incompatible with discrimination-based explanations. Indeed, one of their other interesting findings is that conservative undergraduates have, on average, weaker mentoring relationships with faculty members (who at most schools are overwhelmingly liberal) even after controlling for the students' academic records. Obviously, faculty mentoring at the undergrad level is often crucial for facilitating later efforts to get into a top grad school. Nonetheless, the authors argue that their attitudinal variables probably do account for a large portion of the ideological imbalance in academia.

I agree that self-selection probably plays an important role. It would be a serious mistake to attribute the ideological imbalance in academia solely to discrimination, or even primarily. But I am somewhat skeptical about the particular variables emphasized by the Woessners. If interest in making money were a crucial variable in steering conservatives away from academia, one would expect their representation to be much higher in high-paying academic disciplines such as law, where faculty members routinely make six figure salaries and often have extensive consulting opportunities. Yet the ideological imbalance in legal academia is very large and fairly similar to that in other academic fields.

In my view, a focus on raising a family should make academia more attractive to conservatives rather than less. Relative to other professional jobs, academic careers are actually quite family-friendly. Unlike most other professionals, professors have a high degree of control over their schedules. They can also do a much higher proportion of their work at home, which makes it easier to spend time with kids. Universities also tend to have extremely generous family leave policies for faculty. Moreover, universities often give substantial tuition discounts to children of their faculty - an important benefit for social conservatives with large families. Some schools even subsidize private secondary school tuition for faculty children.

I'm not saying that the academic life is a family idyll. But it's closer to being so than most of the available alternatives for ambitious undergrads. It's true that the interest in starting a family is negatively correlated with interest in pursuing a PhD in the authors' regression model. I suspect, however, that this is a statistical artifact stemming from the fact that those conservatives with the strongest interest in raising families are also more alienated from the dominant academic ideology than even other conservatives are (perhaps because they are more likely to be highly religious and belong to theologically traditionalist denominations).

On the other side of the ledger, I'm skeptical that wanting to develop "a meaningful philosophy of life" really has much to do with wanting to be an academic. And, in the authors' regression model (Appendix A), this indicator is only a weak (though statistically significant) predictor of interest in pursuing a PhD.

Like other studies of academic ideology, the Woessner and Kelly-Woessner paper also suffers from the failure to consider libertarians separately from conservatives. As I discuss in this post, libertarians are about 10-15 percent of the general population and are likely to be disproportionately represented among non-liberals likely to be interested in pursuing academic careers. Relative to conservatives, libertarians are about 20% more likely to be college graduates (see Table 10 in the linked paper) and threfore more likely to be potential candidates for academic jobs.

Although I'm not aware of survey evidence on this point, I strongly suspect that libertarians are closer to liberals than to conservatives in their interests in doing research, developing a philosophy of life, and raising families. Yet libertarians are almost as underrepresented in academia as conservatives are. Certainly, they are nowhere close to constituting 10 percent of faculty in any field other than economics. It is possible that libertarians are more interested in making money than liberals are; the claim is often made, though I have yet to see any systematic study that proves or disproves it. But even if this stereotype is true, it doesn't explain why they aren't better represented in law and other high-paying academic fields.

UPDATE: As I implied in the original post, I don't think that either the ideological imbalance in academia or the flaws of some of the Woessners' self-selection arguments prove that there is extensive ideological discrimination. Indeed, I think the underrepresentation of conservatives in academia is partially due to self-selection factors (though probably not the ones this paper focuses on). On the other hand, there is significant evidence that discrimination plays an important role as well. See this post for links.

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Intellectual Diversity in Academia--Discrimination v. Self-Selection:

A recurrent question regarding the dominance of left/liberal perspectives among university professors is the extent to which this lopsidedness arises from discrimation against those with non-left viewpoints that excludes them from the academy versus self-selection by conservatives and libertarians out of academia and into other professions, such as law and business.

The issue has arisen again in light of a new study by Woesner and Kelly-Woessner "Left Pipeline: Why Conservatives Don't Get Doctorates." The paper is a chapter in a forthcoming book by the American Enterprise Institute on "Reforming the Politically Correct University." The papers from the conference are available here. I've read a number of the papers posted there and they are very interesting.

The paper is also discussed on The Economist's Voice here.

There is also a story in the Chronicle of Higher Education on the study here.

Dan Klein, who has written extensively on this issue, has written up a comment on the Chronicle story that he has asked me to post on his behalf (I do so below). Dan raises one concern that I share about the study. It is difficult to sort out the self-selection from discrimination hypotheses because the decisions on what subject to study will be shaped at least in part by one's perception about the likelihood of success in a given area of study. Thus, for instance, if a scholar perceives that one occupation will subject her to discrimination that will limit her career accomplishments while another would not, then at the margin many are going to pursue the one where that is not the case. And, in fact, prior studies have found that the ideological disparity is greatest in those fields with the most subjective standards (such as English and History) and the gap is narrowest in those fields such as economics and sciences that are generally perceived as less subjective. I have also seen it asserted (although I can't find the discussion right now) that within political science itself those who do use more formal modeling and quantitative methodologies is much more equal in ideological orientation than those who use "softer" techniques.

Dan's primary point of emphasis in his comment, as I understand it, is that this data on the self-seleciton hypothesis doesn't account for his finding that among those who have already received their PhD "conservatives" are more likely to end up outside academia than liberals. So that, for instance, taking the pool of those who have already received a PhD in History, those who are conservative are less likely to hold an academic position than a similarly-situated liberal. Such disparities, Klein argues, are unlikely to reflect self-selection because those who pursue a PhD in History (for instance) have implicitly manifested an interest in being a professor, regardless of ideological orientation.

Since Dan doesn't have his own blog and in the interest of getting his argument out there for debate I reproduce his full comment on the Chronicle story. With respect to Dan's negative view of the Chronicle, I don't read it very much so I don't express any independent view on whether I agree with his opinions. I do, however, certainly share Dan's view that Inside Higher Ed is far more independent of the higher education establishment than the Chronicle and is much more insightful in its coverage. Here's Dan's comment (it is fairly long, so I've placed a good portion of it under hidden text)

Deleted at Daniel Klein's request. See explanation here.

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Mourning Miranda: Berkeley lawprof Charles Weisselberg has posted a fascinating new draft article, Mourning Miranda, on how the police in California currently implement the Miranda warnings. Weisselberg looks closely at how police officers in California are trained to conduct interrogations, and he concludes that the police interpret Miranda to let them do many of the things that the U.S. Supreme Court found objectionable in 1966 that led the Court to create the Miranda framework. Although Weisselberg has long been a noted defender of Miranda, he finds himself concluding that the Miranda experiment has been a failure:
. . . Miranda is now detrimental to our criminal justice system. It is bad enough that Miranda's vaunted safeguards appear not to afford meaningful protection to suspects. But following Miranda's hollow ritual often forecloses a searching inquiry into the voluntariness of a statement. I am skeptical that the courts may retool Miranda's procedures. I suggest other possibilities, including legislation.
I hope to post some substantive reactions to Weisselberg's provocative and important new paper when I get the chance. In the meantime, if you're interested in criminal procedure generally or Miranda specifically, definitely check this one out.
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Our Task Is Vast:

From xkcd (via Language Log):

Mouse-over text: "What do you want me to do? LEAVE? Then they'll keep being wrong!"

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Inside the Yale Law School Admissions Process: The Yale Daily News has the scoop. Link via Howard.
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Change and Originality:

"It’s not change you can believe in, it’s change you can Xerox," Hillary Clinton said, referring to Obama's copying material from Deval Patrick.

Well, that sounds like a cute dig — but does it make sense? People can believe in something just fine even if it's copied from someone else. The merits or the rhetorical power of a speech are not dependent on its originality. (True, if something is so often repeated that it becomes cliché, it may become less inspirational, but there's a big gulf between entirely original and cliché.) In fact, when an idea or a line has been tested by someone else first, that can sometimes help demonstrate its substantive or rhetorical quality.

Dan Drezner also points out that some of Hillary's own rhetoric seems to be closely borrowed from others. (Thanks to Megan McArdle, guest-blogging at InstaPundit for the pointer.) The inconsistency is telling, and amusing — but the more important point is that even when we want change from politicians, we shouldn't demand originality, a virtue in scholars and novelists but generally not in political leaders.

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"Discovering Versus Making Law":

Thoughts from my colleague Stephen Bainbridge.

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Podcast on Framing Brief in DC v. Heller:

At iVoices.org, I interview Hamline law professor Joe Olson for 44 minutes about the Academics for the Second Amendment brief he co-authored in District of Columbia v. Heller. The brief addresses many of the same issues about the framing of the Second Amendment as those raised in a brief written by Carl Bogus (Roger Williams Law School), Jack Rakove, Saul Cornell, and others. The podcast is available in MP3 or streaming format.

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Thursday, February 21, 2008

Law and Politics in Battlestar Galactica:

On Concurring Opinions, lawprofs Daniel Solove, Deven Desai, and David Hoffman have a fascinating interview with Ronald D. Moore and Dan Eick, creators of the outstanding science fiction TV series Battlestar Galactica. The interview focuses on the many interesting legal and political issues the show tackles and will be appearing in several installments over the next few days.

As most sci-fi fans know, Battlestar Galactica is a reconceptualization of the 1978 television series of the same name. It focuses on the story of a "rag tag fleet" of human survivors of a devastating Cylon attack on their home planets which has wiped out nearly all of the human race. The show has taken on a wide range of legal, political, and moral issues.

The series' mostly left-wing politics are very far from my own. In addition, I have some reservations about the way the show's premise is set up. For example, the "colonial" humans' political system seems far too similar to that of the United States, given that these humans supposedly developed in complete isolation from Earth for thousands of years. Many of the show's moral and political dilemmas seem a bit trivial in a setting where most of the human race has already been wiped out through genocide and the few survivors are in grave danger of suffering the same fate. In such an extreme situation, drastic measures such as the use of torture and suspension of due process are surely justified (assuming that they really are effective in staving off annihalation). The show's attempts to make these questions seem difficult strike me as unpersuasive. The more difficult question, of course, is whether these and similar measures can be defended in the much less dire circumstances we face in the real world. To a certain exent, BSG's creators were boxed in by the scenario they inherited from the original 1978 series; there is sometimes a poor fit between the show's basic premise and the issues they want to explore.

Despite these reservations, BSG is one of the best and most thoughtful science fiction TV series of the last 30 years and the Concurring Opinions interview has many interesting insights about the show's treatment of legal and political issues.

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Anonymous Bloggers and Defamation:

My colleague Stephen Bainbridge points to an article about this subject by Betsy Malloy (draft available here). Prof. Bainbridge had earlier praised the Delaware Supreme Court's decision in Doe v. Cahill which held that "before a defamation plaintiff can obtain the identity of an anonymous [blogger from the blogger's ISP] through the compulsory discovery process he must support his defamation claim with facts sufficient to defeat a summary judgment motion" -- which is to say, "must submit sufficient evidence to establish a prima facie case for each essential element of the claim in question."

Thus, if you say that you're defamed by John Doe's comments, and Doe's comments seem to be opinion, or are uncontroversially true, or are otherwise not defamatory, your suit is thrown out before you get Doe's identity. (The court recognized that the subpoena can't be defeated by an argument that the defendant made false factual allegations but made them without "actual malice," or without negligence, as the case may be -- that can't be figured out until the defendant's identity is learned, but whether the statements are mere opinion often can be figured out without unmasking the anonymous blogger.)

Bainbridge has just pointed, though, to Prof. Malloy's short article criticizing Doe v. Cahill, suggesting that it's an important argument though he is not persuaded by it; and I wanted to briefly respond to Prof. Malloy's position.

As I see it, the problem with Prof. Malloy's piece is its assertion that the Doe v. Cahill standard would wrongly restrict claims based on actually false allegations (as opposed to claims that are mere opinion, which isn't actionable in the first place). Prof. Malloy seems to read the opinion as taking the view that statements in blogs are categorically opinion: "[T]he court argued that a reasonable person would not construe a blog as stating facts." "The court indicated that, because of the misspellings, hyperbole, and general nature of blogs, a reasonable person would likely conclude that they only represent opinions." "Though the court holds '[w]e do not hold as a matter of law that statements made on a blog or in a chat room can never be defamatory,' it seems to characterize blogs in such a way as to make it nearly impossible for plaintiffs to meet their burden."

Yet Doe did not go that far -- rather, it concluded that a reasonable person wouldn't construe "the blanket, unexplained statements at issue [in that case]" as stating facts. And the statements involved did sound much like the sort of thing that we'd normally interpret as opinion, especially when it comes from someone who doesn't give supporting evidence, who isn't a psychiatrist, and who is just engaged in anonymous chatter:

  1. "If only Councilman Cahill was able to display the same leadership skills, energy and enthusiasm toward the revitalization and growth of the fine town of Smyrna as Mayor Schaeffer has demonstrated! While Mayor Schaeffer has made great strides toward improving the livelihood of Smyrna’s citizens, Cahill has devoted all of his energy to being a divisive impediment to any kind of cooperative movement. Anyone who has spent any amount of time with Cahill would be keenly aware of such character flaws, not to mention an obvious mental deterioration. Cahill is a prime example of failed leadership –- his eventual ousting is exactly what Smyrna needs in order to move forward and establish a community that is able to thrive on its own economic stability and common pride in its town."

  2. "Gahill [sic] is as paranoid as everyone in the town thinks he is. The mayor needs support from his citizens and protections from unfounded attacks..."

That indeed appears like the "subjective speculation" or "merely rhetorical hyperbole" that the court rightly said wouldn't constitute actionable defamation in the first place. Nothing in Doe v. Cahill strikes me as a statement that speech in blogs generally is somehow categorically opinion -- its finding of opinion had to do with the particular statements at issue in that particular case.

Likewise, Prof. Malloy argues that "the court's opinion ... fails to provide a plausible judicial outlet for plaintiffs." But this "fail[ure]" stems simply from the defamation law rule that you can't sue over mere insults -- you need to point to statements that a reasonable reader would perceive as factual assertion, not "subjective speculation" or "merely rhetorical hyperbole." If you can point to such statements (as would be the case in many of the hypotheticals Prof. Malloy points to), you are legally entitled to subpoena various records to try to discover the anonymous defendant's identity. But if all you can point to is speculation or hyperbole, then you aren't legally entitled to a judicial outlet (at least in the form of a libel lawsuit), whether or not the speaker is anonymous.

Now I have heard some argue that even nondefamatory insults -- which are constitutionally protected against civil liability -- should be subject to an "outing" remedy, through which a court allows subpoenas to be used in order to identify the speaker. I don't think is a sound view, but I can see the arguments for it. But it is a mistake, I think to criticize Doe v. Cahill on the grounds that it protects what would otherwise be actionable defamation on a blog.

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Advice for One-Ls Looking for Summer Jobs: This time of year, first-year law students (1Ls) around the country are looking for summer jobs. Many VC readers have been there, or are potential employers, or otherwise have some good ideas on what 1Ls should look for and what to avoid. So here's an open thread for readers to offer their advice -- offer away.
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From the Department of Dumb Criminals: Check out the facts of United States v. Drennon, a new Third Circuit decision:
Drennon robbed Bensalem Bank on October 17, 2005, passing the teller a handwritten note made out on the back of a pay stub bearing his name. He was arrested shortly thereafter.
Nicely done. Hat tip: Decision of the Day.
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New Article on Law Blog Influence:

It's Prof. Jay Brown's Of Empires, Independents, and Captives: Law Blogging, Law Scholarship, and Law School Rankings, and he's blogging about it this week at The Race to the Bottom — the first posts are here and here.

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Michelle Malkin Responds to Michelle Obama,

here. Malkin, it turns out, has been really proud of her country many times in her adult lifetime (and rightly so). I should also note Michelle Obama's clarification of her remark, via the AP:

On Monday, Michelle Obama told an audience in Milwaukee that "For the first time in my adult life, I am really proud of my country. Not just because Barack is doing well, but I think people are hungry for change." ...

Asked by WJAR-TV if she would like to clarify her comment, Obama replied that she has been struck by the number of people going to rallies and watching debates, as well as record voter turnouts.

"What I was clearly talking about was that I'm proud in how Americans are engaging in the political process," she said.

"For the first time in my lifetime, I'm seeing people rolling up their sleeves in a way that I haven't seen and really trying to figure this out -- and that's the source of pride that I was talking about," she added.

When asked if she had always been proud of her country, she replied "absolutely" and said she and her husband would not be where they are now if not for the opportunities of America.

Obama himself gave a similar explanation during an interview Tuesday with WOAI radio in San Antonio, Texas. Expressing frustration that his wife's remarks had been taken out of context and turned into political fodder, the Illinois senator said, "What she meant was, this is the first time that she's been proud of the politics of America, because she's pretty cynical about the political process, and with good reason, and she's not alone. But she has seen large numbers of people get involved in the process, and she's encouraged."

Thanks to Si Frumkin for the pointer to Malkin's piece.

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Keeping Campus Speech Codes in Perspective:

Thomas Sowell (Real Clear Politics) writes, among other things (emphasis added):

Liberals in general, and academics in particular, like to boast of their open-mindedness and acceptance of non-conformity. But they mean not conforming to the norms of society at large.

They have little or no tolerance to those who do not conform to the norms of academic political correctness. Nowhere else in America is free speech so restricted as on academic campuses with speech codes.

I have often criticized campus speech codes -- but I think we need to put them in perspective: Speech on campuses (at least outside graded class projects, which necessarily must be evaluated based on their content) is generally far more free of institutional punishment than speech in many other places.

The obvious example, which probably affects about ten times more people than do campus speech codes, is restrictions on speech in workplaces. In most workplaces (again, university workplaces are in some measure something of an exception) speech is quite seriously restricted.

First, it is restricted by the government as sovereign, through the pressure imposed by workplace harassment law. One can argue (as I have long argued) that some such pressure is unconstitutional, and that the laws are in a sense part of the speech code movement, but the laws impose broader formal speech-restrictive pressure than do campus speech codes.

Second, workplace speech is also restricted constitutionally by the government as employer, restricting speech that is unduly disruptive, profane, insulting, and the like. Some such restrictions might be unconstitutional under the Pickering test, but many are constitutionally permissible. Third, private employers restrict speech by their employees in a wide range of ways, even setting aside the pressure from harassment law.

Some such restrictions may be proper and others improper -- but most employees will tell you that their speech is quite substantially restricted by the threat of employer sanctions, and much more broadly than student speech is restricted by campus speech codes. (As one simple example, which person is more likely to face punishment for his speech: A student who prominently criticizes on campus the faculty or the administration, or an employee who prominently criticizes management while on the job?) So the "Nowhere else in America" strikes me as factually incorrect.

We notice campus speech codes, I think, in part precisely because student speech is otherwise so generally protected, both at public and private universities. In my experience, academics -- certainly including liberal ones -- are actually quite tolerant of a wide range of criticism, and generally speaking wouldn't try to restrict the sort of speech that is routinely restricted in workplaces (again, consider most criticism of the institution or even of named faculty members). Against this decades-old tradition of broad student free speech, the restrictions on allegedly racist, sexist, anti-gay, and similar speech stand out as exceptions. I'm glad they stand out, and I'm happy to condemn them as generally unconstitutional (in public universities) and generally improper (in all universities). But we shouldn't let these exceptions blind us to the broader rule, and view campuses as unusually speech-restrictive places, where in reality they are quite speech-protective places.

Naturally, I have spoken only of formal restrictions, not informal social pressures stemming from a fear of social ostracism, a fear of public condemnation, and the like. But such social pressures are likewise present in many places (and actually quite proper to a large extent in many places, including universities, depending on the context), including workplaces.

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Viva el absurdo de profesores izquierdistas:

Via Mike Rappaport at The Right Coast, I discover the following ode to Castro from a self-described "egalitarian liberal."

So let’s hear it for universal literacy and decent standards of health care. Let's hear it for the Cubans who help defeat the South Africans and their allies in Angola and thereby prepared the end of apartheid. Let's hear it for the middle-aged Cuban construction workers who held off the US forces for a while on Grenada. Let's hear it for Elian Gonzalez. Let’s hear it for 49 years of defiance in the face of the US blockade. Hasta la victoria siempre!

I have to give Dr. Bertram credit of a sort, though. Even in my wildlest satirical imagination, it wouldn't have occurred to me to praise the heroic resistance of the "middle-aged Cuban construction workers" in Grenada.

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Now This Looks Like a Serious Plagiarism Controversy:

The Columbia Spectator reports:

Embattled Teachers College Professor Madonna Constantine denied charges of plagiarism Wednesday and announced plans to fight sanctions imposed by the TC administration, a day after a memo detailing the allegations became public....

“This investigation, along with other incidents that have happened to me at Teachers College in recent months, point to a conspiracy and witch-hunt by certain current and former members of the Teachers College community,” [Constantine responded].

“I am left to wonder whether a White faculty member would have been treated in such a publicly disrespectful and disparaging manner,” she added.

The allegations of racism drew strong rebuttals from a TC spokesperson, who called the notion that TC is racist “absolutely absurd and untrue” because the school has “zero tolerance for racism.”

On Monday, TC hand-delivered to faculty members a memo reporting that a year-and-a-half-long investigation by an outside law firm had found that Constantine had stolen the work of one former colleague and two former students, and that the school would sanction her for the plagiarism.

The investigation concluded that Constantine’s “explanation for the strikingly similar language was not credible,” according to a TC statement issued later on Tuesday....

TC and Constantine first entered the spotlight when a noose was found on Constantine’s office door in early October in a still-unsolved hate crime that drew national media attention.... [T]he official investigation was in the works years before the noose incident.

Former TC professor Christine Yeh, who now teaches at the University of San Francisco, was one of three former colleagues and students identified by TC as having formally accused Constantine of plagiarism. Yeh said she gradually became concerned about Constantine’s research over the course of a decade of working in the same department.

“It was a few years ago when it came to my attention and I started to actually read what she had published, my work ... it wasn’t until later that I was told that students had come forward saying they’d had work stolen as well,” Yeh said....

Despite the allegations now facing Constantine, her attorney Paul Giacomo said that in fact it was Constantine who was plagiarized by her accusers and not the other way around. The investigation was not neutral, he said, because TC did not grant legal indemnity — protection against potential liability — to his client, though the school did to Yeh and former students Tracy Juliao and Karen Cort, who were also officially identified as complainants. [Constanine had apparently threatened to sue Yeh over Yeh's allegations. -EV] Juliao said in a phone interview with Spectator she had noted specific publications by Constantine that reproduce verbatim portions of Juliao’s dissertation.

Giacomo said he has evidence from “independent third parties, who have no ax to grind” showing Constantine’s authorship of 36 explicit passages, evidence which he allegedly collected after Constantine was asked to resign last spring. The fact that the evidence was ignored, he said, showed that the investigation was conducted with a “predetermined conclusion.” ...

The New York Times City Room blog also reports on this, as do other New York newspapers. If anyone can point me to more details on the controversy, I'd love to hear about it.

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"Where's the Beef?":

The scene: an older, establishment Democratic Senator running for president has lost momentum to a younger, handsome, charismatic Senator who has tapped into the American people's desire for change. The older Senator, once thought to be the inevitable Democratic nominee, is now frustrated, struggling over how to effectively articulate the belief that the younger candidate's success reflects a triumph of style and charisma over substance.

Sound familiar? In 1984, Walter Mondale seemed in great danger of losing the Democratic nomination to Gary Hart, until one of his speechwriters borrowed from a popular Wendy's advertising campaign and fed him the line "Where's the Beef?". Hart's campaign never recovered. Sen. Clinton is desperately in need of a similar zinger. What's Wendy's slogan these days?

54 Comments

Wednesday, February 20, 2008

Federalism and Danforth v. Minnesota:

The Supreme Court's recent decision in Danforth v. Minnesota addresses an interesting issue in constitutional federalism: Is it constitutional for state courts to retroactively apply a newly announced federal constitutional protection for criminal defendants even if the US Supreme Court holds that such retroactivity isn't required by the federal Constitution? In a 7-2 decision, the Court decided that state courts can use state law to apply federal constitutional protections retroactively even if the federal Constitution doesn't require such a rule. Interestingly, the seven justice majority includes the four liberal justices and the three most conservative ones (Alito, Scalia, and Thomas). Chief Justice Roberts and moderate conservative Justice Kennedy dissented.

I think the Supreme Court majority got it right. Chief Justice Roberts' dissent argues that the need for "uniformity" in the application of constitutional rights forbids states to do this. However, the federal Constitution sets a floor for individual constitutional rights, not a ceiling. States are free to provide defendants with broader rights than the U.S. Constitution requires. They are also free to interpret state procedural law in a way that applies federal constitutional protections more broadly than the federal courts believe to be constitutionally required.

I rarely agree with Justice Stevens on federalism issues. But I think he gets it exactly right in this passage from his majority opinion:

There is, of course, a federal interest in "reducing the inequity of haphazard retroactivity standards and disuniformity in the application of federal law." [quoting the dissent] This interest in uniformity, however, does not outweigh the general principle that States are independent sovereigns with plenary authority to make and enforce their own laws as long as they do not infringe on federal constitutional guarantees. The fundamental interest in federalism that allows individual States to define crimes, punishments, rules of evidence, and rules of criminal and civil procedure in a variety of different ways — so long as they do not violate the Federal Constitution — is not otherwise limited by any general, undefined federal interest in uniformity. Nonuniformity is, in fact, an unavoidable reality in a federalist system of government.

UPDATE: I have corrected my silly mistake of misreading Minnesota as Missouri. I probably got confused because Senator John Danforth is a well known lawyer and former senator from Missouri and I intuitively associate the name "Danforth" with his state even though the Danforth in this case has no connection to the former senator (so far as I know).

Related Posts (on one page):

  1. Federalism and Danforth v. Minnesota:
  2. Supreme Court Hands Down Danforth v. Minnesota:
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"MagicJack" Customer Service:

A while ago I recommended the "MagicJack" device, which allows unlimited U.S. internet calls from anywhere in the world. I still like the device, but I must report that the company's customer service leaves a lot to be desired [But see updates below]. My daughter pulled my MagicJack out of its USB port, and broke it. I tried to find a customer service address on the MagicJack website, but all I could find was a "techchat." Here's the transcript of the chat:

Jim: Hi, how may I assist you today?

David: Hi, my two year old daughter pulled my magicjack device out of the computer and broke it.

Jim: May I know how many days has the magicJack with you?

David: I think I got it around September 07.

Jim: My apology for that, but we cannot do your request. You have to buy another magicJack for you to enjoy the services.

David: Fair enough, but I paid for an extra year of service.

Jim: We have nothing to do with it sir. I'm afraid it's in your part that the magicJack broke.

David: Can you please ask a manager to come on line. I paid the $40 for the MagicJack [which comes with one year of service], but $20 for an additional year of service, and I'm not going to pay for service I"m not getting.

David: Or is there a customer service email address I can contact, someone in customer support, not tech support.

Jim: Please understand that we currently only handle technical support chats.

David: Fine, but are you telling me that Magicjack has no customer service email address? I simply want a refund for my unused license for the extra year, I will then buy another Magicjack.

Jim: I'm afraid so.... I understand your issue. But we don't have a customer service support as for now. It may be available in the near future.

UPDATE: A Commenter points me to a page that "has a post from a guy who claims to be the 'inventor' and offers help via his e-mail address, Dan@magicjack.com." I wrote to Dan, and got a quick response that a free replacement will be on its way tomorrow. Great, but ... odd that you can contact the inventor and get support, but there's still no customer service email address on the website.

FURTHER UPDATE: Dan writes in to say that "there are a number of places to send an email regarding returns or replacements." After playing around without the website for a few minutes, I did find this link for returns and replacements. The main problem is that clicking on either "customer care" or "FAQs", which is where I looked, doesn't help much. Also, it's not at all clear once you find the relevant page whether you can return a defective MagicJack after the 30-day trial period, and the Jim the tech support guy, who was apparently misinformed, told me you could not.

Anyway, it's still a great product--I even used it in Israel to make free calls via my laptop to the U.S.--and I'm glad to find out that the customer service issue was primarily a matter of miscommunication and a poorly designed website.

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The Impact of Castro's Repression on Cuban Health:

As I noted in my last post, Castro's alleged improvements in Cuban health care are often used as a counterpoint to his repressive policies. Maybe he repressed political dissent, apologists claim, but at least he improved health care. For example, CNN urges its reporters to "[p]ease note Fidel did bring social reforms to Cuba – namely free education and universal health care . . . in addition to being criticized for oppressing human rights and freedom of speech."

In addition to the more obvious objections to this line of argument, it's also essential to recognize that political repression is bad for health. As I discussed in this post, the Cuban communist government executed some 100,000 political prisoners and imprisoned some 350,000 others in brutal labor camps during the the 1960s alone. This in a population of just 6.3 million as of 1960. Obviously, getting executed is bad for your health. Due to the milder climate, Cuban forced labor camps probably have better health standards than Soviet Gulags. Nonetheless, even a tropical Gulag isn't too good for the health of the inmates. A substantial number of the labor camp inmates likely either died before their sentences were up or had their lifespan substantially reduced as a result of privation they endured.

Calculating the odds, this implies that the average Cuban at the start of Castro's regime had a roughly 1.5% chance of being executed by the regime and a 5.6% chance of being incarcerated in a labor camp. In reality, the risks were probably higher than that for those who stayed in Cuba, since the 6.3 million population figure includes several hundred thousand Cubans successfully fled the country in the early years of the regime (the US alone admitted some 750,000 Cuban refugees between 1960 and 1976).

Even if Castro's government really did improve health care substantially for those Cubans who were fortunate enough to avoid being executed or incarcerated in labor camps, the improvement would have to be pretty enormous to outweigh the negative health effects of the regime's repressive policies. How much of an in improvement in health care would be enough for you to be willing to take a 1.5% chance of being executed and a 5.6% chance of being sent to a brutal labor camp for at least several years?

UPDATE: I have corrected a minor calculation error in my estimate of the odds of being sentenced to a forced labor camp in 1960s Cuba. The correct figure is 5.6%, not 4.8%.

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The Supreme Court and Legal Realism: Check out this fascinating passage from today's decision in Danforth v. Minnesota about what the Supreme Court does when it changes its interpretation of the Constitution. If I'm reading the passage correctly, it indicates that new Supreme Court decisions that overrule old cases simply discover and recognize the real Constitution that the Court hadn't been able to see in the past. Here's what Justice Stevens says about "new rules" of the Constitution established by new Supreme Court decisions:
[T]he source of a "new rule" is the Constitution itself, not any judicial power to create new rules of law. Accordingly, the underlying right necessarily pre-exists our articulation of the new rule. What we are actually determining when we assess the "retroactivity" of a new rule is not the temporal scope of a newly announced right, but whether a violation of the right that occurred prior to the announcement of the new rule will entitle a criminal defendant to the relief sought.
  So if I understand Justice Stevens correctly, a case like Miranda v. Arizona was constitutionally required at the time of the Framing, but the Court just didn't see the true Constitution until the 5-4 decision by Earl Warren in 1966? Um, like, okay.

  Extra Credit Question: If the Justices truly believe in the passage above, should they be adhering under stare decisis to any criminal procedure decisions that they think are incorrect?
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Supreme Court Hands Down Danforth v. Minnesota: I can't believe I didn't see this until now, but this morning the Supreme Court handed down Danforth v. Minnnesota, the very important habeas decision I blogged about at length back in November. To my surprise, based on the oral argument, the Court ruled for the defendant: The Court divided 7-2, with Justice Stevens writing for the majority and Chief Justice Roberts (joined by Justice Kennedy) in dissent. I think that was the right decision based on the briefs and my own research, but I'll have to read the opinions before I can say more.

Related Posts (on one page):

  1. Federalism and Danforth v. Minnesota:
  2. Supreme Court Hands Down Danforth v. Minnesota:
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"Remarkable Presence of Mind" Under Horrible Circumstances:

The Toronto Globe and Mail reports:

An inveterate watcher of the hit television series CSI, the 11-year-old victim knew all about the importance of DNA.... So ... [w]hen the man who had kidnapped and repeatedly raped her briefly fell asleep, the young girl picked up one of his cigarette butts and placed it in her pocket.

Not only that, aware of how easily evidence can be contaminated, she took care to pick it up with some leaves in her hand, ensuring that only her assailant's DNA would be present on the cigarette.

Yesterday, Crown prosecutor Howard Pontious paid tribute to the girl's remarkable presence of mind, after a judge in Vernon, B.C., convicted Paul Lepage of kidnapping, sexual assault and administering a drug to commit an indictable offence....

Thanks to Prof. Abigail Abraham for the pointer.

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Do Dentists Have an Unusually High Suicide Rate?

I'd heard this factoid before, and was naturally skeptical. Still, Steven Stack, Occupation and Suicide, 82 Social Science Quarterly 384, 392 (2001) so reports. Controlling for various demographic factors, and using 1990 data from 21 states (covering 6198 suicides and 137,687 natural deaths) dentists had an odds ratio of 5.43 (compared to all the people in the sample), much higher than the nearest runner-up, doctors (2.31). Both the dentists' and the doctors' odds ratios were statistically significant.

The lowest statistically significant odds ratios were among farm workers (0.69) and clerks (0.85). Professors and lawyers both were not statistically different from the average person in the sample.

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Castro's Dictatorship and Cuban Health Care:

Cuban communism may be repressive, but at least it provides good health care. This is a common trope of left-wing apologias for Castro's brutal dictatorship. This claim is getting recycled yet again in the wake of Castro's recent resignation (e.g. here). One response to this point is that of liberal Berkeley economist Brad DeLong: Cuba would likely have a much higher standard of living (and better health care) today had it not gone communist in 1959. As DeLong documents, Cuba in the 1950s was one of the richest countries in Latin America and rapidly approaching Western European standards of living and health outcomes. Under communism, it became one of the poorest nations in the Western hemisphere - despite receiving vast quantities of heavily subsidized oil from the Soviet Union for decades. Taking Cuban official statistics at face value (as DeLong does), Cuban health outcomes and standards of living are roughly similar to those of Mexico and the Dominican Republic. In the 1950s, DeLong notes, Cuba was vastly better off than these countries and, on some measures (such as infant mortality) better than many Western European nations.

But there is an even more basic problem with the "at least Castro improved health care" excuse: it assumes that official Cuban government health care statistics are accurate. I find that assumption highly improbable. A government that brutally represses dissent and executed over 100,000 political prisoners out of a population of just 6.3 million is unlikely to be above falsifying its official statistics in order to improve its image. That was certainly common practice in other communist societies, including those which Castro used as models for his own.

When the Iron Curtain fell in Eastern Europe, scholars rapidly determined that official Soviet and East European statistics were routinely falsified to burnish the communist regimes' public image. As this foolishly credulous 1973 Time article noted, official East German stats indicated that, by 1970, East Germany had a higher standard of living than Italy and was rapidly closing in on Britain. Anybody with even the slightest familiarity with actual East German living standards knows how far such communist claims were from reality.

How bad is Cuban health care really? I don't know. Probably no one will know until the regime finally falls and honest data can be collected. For now, it's at least worth noting that the government health care clinics available to ordinary Cubans (those not members of the government elite) look like this and this. It's also worth noting that if Cuban living standards and health care really were as good as the government claims, it's unlikely that millions of Cubans would have risked their lives to flee the country - not only for the wealthy United States, but even for such far poorer destinations as Puerto Rico and the Dominican Republic. It's especially telling that many Cuban refugees prefer even Haiti (the one Latin American nation that probably really is poorer than Cuba) to life under Castro. The evidence of people risking their lives to vote with their feet is a lot more compelling than the Cuban government's dubious health statistics.

UPDATE: I am aware that some of the data on Cuban health care comes from the United Nations and other international organizations. However, the UN and the others depend on information provided by the Cuban government. You can't do independent data collection in a totalitarian dictatorship. Thus, the UN numbers are derivative of Cuban official statistics.

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Bombing in Denmark:

Danish journalist Jakob Illeborg writes:

Around 11am today a bomb exploded in a solarium in Copenhagen. The suntan shop was situated just by the national football stadium in Oesterbro, a peaceful and affluent part of the Danish capital. The explosion completely destroyed the shop and the surrounding flats were also damaged. The police are putting the fact that no one was hurt down to sheer luck; two other bags were found in the area and have been destroyed. Two young men between the ages of 15 and 25 were seen running away from the crime scene; they were described as "foreign-looking" and are now wanted by the police.

The explosion is a drastic escalation of the week-long riots on the streets Denmark where young Muslim men have vented their anger and frustration towards Danish society by setting fire to cars and burning bonfires in the streets. The rioters claim that their action is a protest against the reprinting of the prophet cartoons, which took place last Wednesday when a unified Danish press decided to print/reprint the cartoon depicting the prophet Muhammad with a bomb in his turban. The decision to reprint was taken when the Danish security service (PET) notified the public that three men had been arrested on suspicion of plotting the murder of the cartoonist, Kurt Westergaard.

However, it is debatable whether the reprinting of the cartoons was the real reason behind the rioting. The night before they were published the air on Oesterbro was thick with the smoke of bonfires and burning rubber, carried by the wind from neighbouring Noerrebro, where much of the rioting has taken place. The cartoons no doubt had an explosive effect on matters, but the fire was already burning....

Illeborg writes more — the entire post is much worth reading — but the conclusion strikes me as very troubling:

[I]t is naive to believe that we can arrest or deport our way out of the problem. The Danes will have to adopt a political culture that is more accepting of people who don't think and behave like us. Of course there must be limits to what we will accept, but so far neither our society nor our way of life is under threat. Maybe the lesson is to keep our powder dry for when it really matters. The prophet cartoon crisis was not worth it first time around and we could certainly do without an encore.

I would think that standing up for the right to speak — even when the speech offends other religions — is something that does "really matter[]."

See also Abe Greenwald's comments in Commentary, which take the same view that I do. Thanks to Michael Totten (guest-blogging at InstaPundit) for the pointer. For more on the cartoons, see my post from two years ago.

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Bestiality + Necrophilia = No Crime At All?

Believe it or not, the issue has just come up. The Wisconsin Court of Appeals concludes that it indeed probably isn't a crime (or at least not the crime charged), but that the defendant waived the argument by pleading no contest:

Hathaway first argues his conviction should be reversed because the term “animal” in WIS. STAT. § 944.17(2)(c) does not include an animal carcass. He rather convincingly contends that “animal” means a living creature.

However, Hathaway pled no contest to the charge. A plea of guilty or no contest waives all nonjurisdictional defects and defenses.... [Hathaway's] argument that having sex with a dead deer does not violate the statute is a nonjurisdictional argument. It does not go to subject matter jurisdiction. Consequently, the argument was waived.

Thanks to How Appealing for the pointer.

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Lawprofs for Congress?

My erstwhile coauthor Larry Lessig (Stanford) is considering running in Northern California as a Democrat (to fill the late Tom Lantos's seat), and Michael Livingston (Rutgers) is officially running in Pennsylvania as a Republican, against Chaka Fattah.

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Hillarymandias, Queen of Queens:

Bumperstickerist, a commenter at JustOneMinute, writes:

Hillarymandias

I met a pollster from an antique land,
Who said--"Two vast and trunkless legs of stone
Stand, one in Texas...., one near Canton,
Half sunk a shattered visage lies, whose brow,
And wrinkled lip, and sneer of cold command,
Tell that its sculptor well those passions read
Which yet survive, stamped on these lifeless things,
The electorate that mocked them, and the press that fed;
And on the pedestal, these words appear:
My name is Hillarymandias,
Look on my resume and campaign fundraising, ye fellow Democrats, and despair!
Nothing else remains. Round the decay
Of that colossal Wreck, boundless and bare
The lone and level sands stretch far away....

For the original, see here. Thanks to Megan McArdle (guest-blogging at InstaPundit) for the pointer.

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Why I Haven't Blogged on the FISA Bill: I haven't been blogging on latest developments in the FISA bill and telecom immunity, and I thought I would briefly say why.

  In my view, the issue seems to have entered the realm of political symbol rather than law. The President is making overblown and excessive claims about the need for the bill. (National security is at risk!) On the other hand, critics are making overblown and excessive claims about its harms. (This will give them the greeen light to break the law again!) It seems to me that the stakes on both sides are an order of magnitude lower than either side is pretending they are. That's not necessarily a bad thing for democracy. A clash of the branches is healthier for democracy than one branch rolling over and playing dead, even if it's mostly posturing. But it doesn't lead to a whole lot of interesting blogging on the merits.

  One exception to that rule is that there have been some very interesting clues from the public debate about how the Protect America Act has been implemented. Back when the Act was new, we spent a lot of time trying to figure out just what the heck in meant. Sounds the Administration have been making give us some ideas; in particular, it sounds like they did *not* enact a one-size-fits-all monitoring protocol, but rather have a series of monitoring protocols on a smaller scale. That's been my impression at least; given all the political posturing, I haven't been following the issue very closely.

  UPDATE: Some readers suggest in the comment thread that the views of critics of retroactive immunity aren't overblown. I addressed this issue in a long post back in December: How Much Difference Would The Proposed Immunity Deal Make?
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From Greenhouse Gas to Gasoline:

The New York Times reports on an interesting scientific undertaking:

If two scientists at Los Alamos National Laboratory are correct, people will still be driving gasoline-powered cars 50 years from now, churning out heat-trapping carbon dioxide into the atmosphere — and yet that carbon dioxide will not contribute to global warming.

The scientists, F. Jeffrey Martin and William L. Kubic Jr., are proposing a concept, which they have patriotically named Green Freedom, for removing carbon dioxide from the air and turning it back into gasoline.

The idea is simple. Air would be blown over a liquid solution of potassium carbonate, which would absorb the carbon dioxide. The carbon dioxide would then be extracted and subjected to chemical reactions that would turn it into fuel: methanol, gasoline or jet fuel.

This process could transform carbon dioxide from an unwanted, climate-changing pollutant into a vast resource for renewable fuels. The closed cycle — equal amounts of carbon dioxide emitted and removed — would mean that cars, trucks and airplanes using the synthetic fuels would no longer be contributing to global warming.

Although they have not yet built a synthetic fuel factory, or even a small prototype, the scientists say it is all based on existing technology.

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Now That's A Cool Job: "CBO," Chief Beer Officer.
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Don't Write Like This!

James Taranto (Wall Street Journal's Best of the Web) catches this opening paragraph from an AP story:

A woman reported missing for several days was found stabbed to death in a minivan by family members who were called by police to pick up the vehicle because it was illegally parked near Pomona Superior Court, authorities said Monday.

Yow.

38 Comments

Tuesday, February 19, 2008

Is There a Relationship between Guns and Freedom? Comparative Results from 59 Nations:

That's the title of a Working Paper that I've co-authored with Howard Nemerov. Abstract:

There are 59 nations for which data about per capita gun ownership are available. This Working Paper examines the relationship between gun density and several measures of freedom and prosperity: the Freedom House ratings of political rights and civil liberty, the Transparency International Perceived Corruption Index, the World Bank Purchasing Power Parity ratings, and the Heritage Foundation Index of Economic Freedom. The data suggest that the relationships between gun ownership rates and these other measures are complex. The data show that (although exceptions can be found) the nations with the highest rates of gun ownership tend to have greater political and civil freedom, greater economic freedom and prosperity, and much less corruption than other nations. The relationship only exists for high-ownership countries. Countries with medium rates of gun density generally scored no better or worse than countries with the lowest levels of per capita gun ownership.
Comments are welcome--particularly by commenters who read the article, rather than wasting time on troll battles on other issues.

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Ninth Circuit Does Not Reach How Fourth Amendment Applies to Text Messages: Back in November, I had a long and fairly detailed post about a pending Ninth Circuit case, United States v. McCreary, that considered how the Fourth Amendment applies to text messages. Based on the oral argument, the case seemed likely to lead to a very important precedent on how the Fourth Amendment applies to electronic communications.

  Alas, it didn't turn out that way. Last week, the Ninth Circuit affirmed McCreary's conviction without reaching the very difficult and interesting Fourth Amendment issues. Here's what the Court wrote on this issue in its nonprecedential opinion:
  The investigation of the two robberies revealed that McCreary and his co-defendant, Jonathan Hunter, communicated by text messages in planning the two robberies. The Government had a grand jury subpoena issued to the service provider, MCI/SkyTel, seeking the toll records including the text of the messages. McCreary contends that he had a reasonable expectation of privacy in these messages and that the acquisition of these messages by a grand jury subpoena without a search warrant violated his rights under the Fourth Amendment. He contends that to the extent 18 U.S.C. § 2703 of the Stored Communications Act authorized obtaining the text messages without probable cause and a search warrant it violated his Fourth Amendment rights.
  We do not reach this contention because we conclude that any error in admission of the text messages was harmless. The Government presented overwhelming separate, independent evidence of McCreary's guilt. The Government presented the testimony of two of the co-conspirators who participated in the robberies detailing McCreary's leadership in planning the robberies, providing clothes and guns, and giving instructions as to how the robberies were to be conducted and the getaway to be achieved. McCreary's participation was also corroborated by other substantial evidence.
  Not resolving the question makes sense if any error was harmless; better to avoid the difficult constitutional question. Still, it's frustrating from an academic perspective that these questions will have to wait for another day given how directly they were presented to the panel. Also, note that four months passed after the oral argument before the panel handed down its very short decision. I wonder if the judges spent some time working through the Fourth Amendment issues before deciding that the better course was to pass on them.

  UPDATE: On the other hand, might another panel of the Ninth Circuit reach this issue in Quon v. Arch Wireless, a Stored Communications Act case argued two weeks ago? The issue was briefed in part and it arose during the oral argument, available here, although it was hardly the focus of the argument and there wasn't much helpful on the issue. Also, in that case the context is government employment; the Fourth Amendment rules for government employment are very different from the normal Fourth Amendment rules, as explained here.
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Uberrimae Fidei:

Now there's a legal phrase whose time has come -- and gone. Apparently it's common in admiralty law, and it means "of the utmost good faith," as in "Marine insurance is a contract 'uberrimae fidei,' requiring the utmost good faith by both parties to the contract." I've been in law teaching for nearly 14 years, and had never heard of it until today. Use it at your own peril, unless you're using it in a field where it's firmly established.

Related Posts (on one page):

  1. Uberrimae Fidei, Back in the News:
  2. Uberrimae Fidei:
26 Comments
"Plagiarism" and Politicians:

The plagiarism accusations against Obama strike me as mighty weak. Here are the facts, as reported in the Washington Post's blog, The Trail:

Speaking in Milwaukee on Saturday night, Obama drew a standing ovation for a speech that included a defense of speechmaking — and his appeal to a sense of hope — as worthy leadership tools. He said, "The most important thing we can do right now is to reengage the American people in the process of governance and get them excited again....

"Don't tell me words don't matter. 'I have a dream.' Just words? 'We hold these truths to be self-evident, that all men are created equal.' Just words? 'We have nothing to fear but fear itself' — just words? Just speeches?"

During the 2006 campaign for governor, Patrick drew fire from his Republican opponent, who said his stylish speechmaking disguised a lack of substance. Among his responses was this one:

"'We hold these truths to be self-evident, that all men are created equal.' Just words? Just words? 'We have nothing to fear but fear itself.' Just words? 'Ask not what your country can do for you, ask what you can do for your country.' Just words? 'I have a dream' — just words?"

Here's why I don't excited by plagiarism allegations. As I've argued before, when a typical writer uses another's words, he commits two sins. (1) He deceives readers into wrongly giving him credit for originality. (2) He wrongly denies the original author credit that's important to the original author's reputation. That's why, for instance, scholars, whose stock in trade is original reasoning and writing, must be careful to properly attribute material they borrow from others, especially other scholars.

But I don't think this sensibly applies to politicians copying from other politicians. Politicians are admired for having sensible ideas and moving rhetoric. They're not expected to have ideas or words that are genuinely original in the sense of being their own invention; many high-level politicians' words are written by speechwriters, and even the ones that they write themselves are admired for their soundness or rhetorical effectiveness, not for their creativity. (Politicians are looked down on for having tired, boring, overused rhetoric or ideas that are the same as everyone else's; but not being cliché is not the same as being entirely original.)

Moreover, precisely because high-level politicians' words are usually written by speechwriters, there's little risk that close paraphrasing without attribution will wrongly deny anyone credit. Deval Patrick's speechwriter wouldn't get public credit for the words in any event; and Deval Patrick doesn't deserve public credit (except to the extent, which strikes me as too slight to make a difference, of deserving credit for sound editing, given that many politicians do edit their speechwriters' work).

It's possible that Patrick did write this speech or at least this passage, or that he's an extremely heavy editor of his speechwriters' work. But there's no reason to presume this harm to the original author as a general matter in copying politicians' speeches; and Patrick's defense of Obama is sufficient to make clear that in this particular case the author is either anonymous (if he's a speechwriter) or gives his consent (if he's Patrick).

Now it's probably marginally better to err on the side of giving too much credit rather than too little, just in case the original author would be annoyed (and is entitled to be annoyed), just in case some listeners expect your speeches to be original to you, and perhaps to indirectly reinforce a broader antiplagiarism norm that is sound in most other contexts even if it's inapplicable here. But when people fail to do this, especially in extemporaneous comments, they shouldn't be much faulted for it, and certainly not faulted using the label "plagiarism."

And, yes, I take much the same view as to Sen. Biden's using the words of British Labour Party leader Neil Kinnock in Biden's 1988 Presidential campaign.

UPDATE: James Taranto (Wall Street Journal's Best of the Web) has more.

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The Future of Reputation is Now Free: Daniel Solove's very interesting book The Future of Reputation is now available online for free as a .pdf. At that price, you'll want to download it twice!

  You can read the introduction here. Hat tip: Daniel Solove, author of The Future of Reputation.
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The Human Right of Self-Defense

The final, published version of this article from the BYU Journal of Public Law is now available. The article, which I co-authored with Paul Gallant and Joanne Eisen, argues that personal self-defense is recognized as a universal human right, and is the foundation of international law. The article critiques a report by University of Minnesota Law Professor Barbara Frey, written for the UN Human Rights Commission/Council, which contends that self-defense is not a right, but is instead, at most, an excuse similar to duress or insanity.

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Great Warning Pop-Up:

Michael Froomkin blogs a pop-up warning from an online backup provider:

I understand that if I ever lose this key, that neither I nor MozyHome will be able to decrypt my data and i will be hosed.

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Wikileaks Injunction:

I'm too swamped to blog about this troubling case in detail now, but Prof. Michael Froomkin (Discourse.Net) has a good post on this, with links; see also this follow-up.

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A Better Legal Search Engine?

There is an interesting effort underway to build a new legal search engine. The new engine — PreCYdent is up and runing, and getting some quite positive reviews — here and here for example. PreCYdent was founded by my brother-in-law Tom Smith, who blogs at the Right Coast, and Antonio Tomarchio, a mathematician from the Politecnico di Milano. The PreCYdent site is the "alpha" version, so it is still in development, and the site indicates that feedback and comment are encouraged.

According to the site, the search technology works by mining information in the legal citation network, which enables it to rank cases by "authority", with the most important cases appearing nearer to the top of the results list than in Lexis or Westlaw searches. From what I can see, the search engine outperforms both Westlaw and Lexis natural language search algorithms by a wide margin in systematic tests. I ran a few searches on some topics in criminal procedure, one of my areas of expertise, and it seemed to work quite well.

I've always wondered how long Westlaw and others will be to maintain a pay-for-search system of court opinions. Court opinions should be easily accessible to the public — for free — and maybe PreCYdent will prove to be an open source way to do it.

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Supreme Court Grants Cert on an Exclusionary Rule Case

As Kent Scheidegger notes over at Crime and Consequences,the U.S. Supreme Court has granted cert in Herring v. United States, No. 07-513. The Question Presented is:

Whether the Fourth Amendment requires evidence found during a search incident to an arrest to be suppressed when the arresting officer conducted the arrest and search in sole reliance upon facially credible but erroneous information negligently provided by another law enforcement agent.

This raises the interesting question of what sort of mens rea does the Fourth Amendment envision. It forbids "unreasonable searches and seizures," and the Court has generally found that reckless behavior by police officers is unreasonable. Dropping down to negligence is a bit closer, but there is language in various Supreme Court opinions about "objectively reasonable officers" -- officers who presumably are not negligent. This one should be interesting.

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Let the Record Reflect

Here at the law school at Utah, we have a fun student organization called the Jackie Chiles Law Society. Seinfeld fans will recall that Jackie Chiles is the fast-talking lawyer character who appeared several times. The students here use the Society to look at how pop cultural portrays attorneys and whether those portrayals are accurate.

Sometimes, though, truth is stranger than fiction. At their meeting today, the students dug up this You Tube clip that's quite amusing. The lawyer procedes to flip-off the witness several times, ostensibly to test the witness' ability to discern the difference between various hand gestures.

I think the opposing counsel should have inserted, "Let the record reflect ...."

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Is limited government possible? Cato Unbound is having an on-line symposium on "Is Limited Government Possible?" with contributions by Anthony de Jasay, Gerald Gaus, Michael C. Munger, and me. My contribution is the latest. Here is how they summarize it:
Randy Barnett, the Carmack Waterhouse Professor of Legal Theory at Georgetown University Law Center, notes that limited government is possible because it is actual, but acknowledges that “given that some limits on power clearly remain, these constraints failed to hold the line the Framers were attempting to draw.” Barnett argues that the mechanisms of limited power embodied in the Constitution — reciprocity, checks and balances, and the power of exit — would be more successfully realized in a “polycentric constitutional order in which one would subscribe to a legal system of one’s choice as today one subscribes to cell phone service, health and auto insurance, or private security providers.” Understanding why this would be an improvement “can help us appreciate why restoring the characteristics of the original Constitution as amended by the Fourteenth Amendment … would be far preferable to the constitutional status quo,” Barnett writes.
You can read the whole thing here.
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Sunstein Leaves Chicago for Harvard:

Cass Sunstein, perhaps the most prolific and influential legal scholar of his generation, is leaving the University of Chicago for Harvard. A huge blow for Chicago, and a huge gain for Harvard. I may have some more thoughts on this later.

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Monday, February 18, 2008

Zoning and the Subprime Mortgage Crisis:

Randal O'Toole has an interesting post rounding up evidence showing that zoning and other government land-use restrictions have played a major role in causing the subprime mortgage crisis. Zoning helped cause the crisis in two ways: by artificially inflating the price of real estate, and by increasing the likelihood of a "boom-bust" cycle in real estate prices.

As Harvard economist Edward Glaeser and UPenn economist Edward Gyourko showed in this 2002 paper, restrictive zoning greatly increases housing prices by artificially reducing the amount of land on which new housing can be built and also by reducing the amount of housing that can be built even in those areas where residential construction is permitted. Glaeser and Gyourko show that zoning restrictions account for a high percentage of the total cost of housing in some of the nation's most expensive real estate markets, such as California and the major East Coast cities. O'Toole's post cites more recent research that supports this conclusion (including his own). Higher housing prices helped cause the subprime mortgage crisis by forcing homebuyers to borrow more money in order to purchase homes of a given size and location. If prices had been lower, so too would homeowner indebtedness. Fewer buyers would be on the verge of default as a result of a market downturn; their debt burden would likely be much smaller relative to their income.

More recent research by Glaeser and his colleagues (summarized here) shows that restrictive zoning not only drives up housing prices, but also makes them more volatile. Presumably, this is because zoning makes it more difficult for property owners to make marginal changes in land use in response to market signals, thereby increasing the chance that adjustments will be put off until the housing market actually collapses. Obviously, the sudden nature of the recent market downturn exacerbated borrowers' difficulties in repaying their mortgages.

Abolishing restrictive zoning probably would not eliminate housing bubbles entirely. But it would reduce both their incidence and their severity. Even more important, it would make homeownership far more accessible for the poor and middle class. Rental housing would also probably be less expensive, since rents are in large part determined by land prices.

Unfortunately, it is unlikely that we will see such beneficial policy change anytime soon. Widespread economic illiteracy and political ignorance help ensure that most voters don't realize the connection between high housing costs and zoning. Thus, the general public is unlikely to punish politicians who promote restrictive zoning. Meanwhile, the big current landowners who dominate local government in many areas have a strong incentive to promote zoning policies that keep housing artificially scarce, thereby increasing the market value of their own holdings.

UPDATE: It is telling that none of the presidential candidates who have focused on the subprime crisis have even so much as mentioned restrictive zoning, much less called for its abolition. Their economic advisers are surely knowledgeable enough to understand the connection. But their political advisers know that voters' economic illiteracy will make it difficult for them grasp the point. On the other hand, coming out against zoning would alienate powerful interest groups that benefit from the status quo, such as wealthy landowners in major urban areas with restrictive zoning policies. Just another example of how what the voters don't know ends up hurting them.

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Another Interesting Obama Quote:

Hyde Park Citizen, Dec. 28, 1995:

Obama made mention that since America has fallen off as a dominant economic power in the world, race relations have worsened in America.

"In an environment of scarcity, where the cost of living is rising, folks begin to get angry and bitter and look for scapegoats. Historically, instead of looking at the top 5% of this country that controls all the wealth, we turn towards each other, and the Republicans have added to the fire."

The first sentence is paraphrased, but it nevertheless makes me wonder if Obama really thought that as of 1995, America had "fallen off as a dominant economic power in the world," and that race relations were worse in 1995 than in the past. The second sentence, meanwhile, suggests not that Americans struggling economically shouldn't be looking for scapegoats, but that they should be looking for the right scapegoat--"the top 5% of this country that controls all the wealth."

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Obama and Gun Control:

His record isn't likely to win back the rural "pro-gun" voters who've fled to the Republicans in recent years, likely costing Gore the election in 2000. From the Chicago Defender, Dec. 13, 1999:

Sweeping federal gun control legislation proposed by Sen. Barack Obama (D-13th) would increase the penalties on gun runners who are flooding Chicago's streets with illegal weapons.

At an anti-gun rally held at the Park Manor Christian Church, 600 E. 73rd St., headed by the Rev. James Demus, Obama also said he's backing a resolution being introduced into the City Council by Alds. Toni Preckwinkle (4th), Ted Thomas (15th), Leslie Hairston (5th) to call for a "shot-free" millennium celebration.

Obama outlined his anti-gun plan that includes increased penalties for the interstate transportation of firearms. The maximum penalty now for bringing a gun across the border is 10 years in prison. Obama is proposing to make it a felony for a gun owner whose firearm was stolen from his residence which causes harm to another person if that weapon was not securely stored in that home. [!!!]

He's proposing restricting gun purchases to one weapon a month and banning the sale of firearms at gun shows except for "antique" weapons. Obama is also proposing increasing the licensing fee to obtain a federal firearms license.

He's also seeking a ban on police agencies from reselling their used weapons even if those funds are used to buy more state-of-the-art weapons for their agencies. Obama wants only those over 21 who've passed a basic course to be able to buy or own a firearm.

He's proposing that all federally licensed gun dealers sell firearms in a storefront and not from their homes while banning their business from being within five miles of a school or a park. He's also banning the sale of 'junk" handguns like the popular Saturday Night Specials.

Obama is requiring that all people working at a gun dealer undergo a criminal background check. He's also asking that gun manufacturers be required to develop safety measures that permit only the original owner of the firearm to operate the weapon purchased.

Additionally, he wants an increase of the funds for schools to teach anger management skills for youth between the ages of 5-13. Obama is also seeking to increase the federal taxes by 500 percent on the sale of firearm, ammunition [sic] -- weapons he says are most commonly used in firearm deaths.

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Samuel Golubchuk euthanasia update:

Late last year, I wrote about the case of Samuel Golubchuk, an elderly Canadian man whom his doctors wish to euthanize, over the strong objections of his orthodox Jewish family. (Hastening someone's death by withdrawing life support is known as "non-aggressive euthanasia.") A recent policy statement from the College of Physicians and Surgeons of Manitoba, asserts the power and the duty of physicians to euthanize patients, notwithstanding the objections of the patient or his family. Last week, a Winnipeg trial court issued an injunction requiring continued care for Mr. Golubchuk, pending a full trial on the merits.

According to the decision, Golubchuk's relatives

have produced an affidavit of a neurologist who practises in New York and has reviewed the entire hospital record of Grace Hospital. He has noted an absence of any examination of the plaintiff by a neurologist, any brain-imaging such as with CT scan or MRI, or other measurement of brain activity. He stated that the record contains many references to the plaintiff being awake and making purposeful movements that have not been reported by or explained by the defendants’ deponents. He stated that the plaintiff has not been assessed for aphasia, locked-in syndrome or other treatable neurological illnesses, which could account for his apparent lack of consciousness. He concluded on that point:
11. Furthermore, according to the documentation in the medical records, Mr. Golubchuk’s condition has demonstrably improved (Exhibit “D”). There is no evidence whatsoever that he is brain dead, close to brain dead, or dying, from a neurological point of view. He has enough higher cognitive function to not only be considered awake but to make frequent, purposeful movements and engage in other purposeful activities.
The court rejected the hospital's claim that settled law allowed a physician to terminate life-sustaining treatment over the objections of a patient or family. Further, wrote the court, it was possible that Golubchuk had a right to treatment under the Canadian Charter of Rights and Freedoms, or the common law. In light of the balance of equities (that Golubchuk would suffer an irreparable injury, namely death, without an injunction), the court enjoined the hospital from euthanising Golubchuk pending trial on the merits.

I was surprised to find that the name of the hospital that wants to euthanise Golubchuk is the Salvation Army Grace General Hospital, which according to its website, is a "faith-based" facility.

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Ultra, Arch, and Extremely: Here's a comparison of the number of google hits for "archconservative," "archliberal," "ultraconservative," "ultraliberal," "extremely conservative," and "extremely liberal":




ConservativeLiberal
Arch-25,0003,600
Ultra-140,00068,000
Extremely190,000100,000

  I assume it will be impossible to reach agreement on why the numbers are unbalanced. Perhaps those on the left will tend to say it's because those on the right are more extreme; presumably those on the right will tend to disagree, and will tend to say it's because those on the left are more inclined to discredit opponents with dismissive labels. Or maybe it's because those on the right side of the political spectrum are more likely to self-identify as "conservative" than are those on the left side to self-identify as "liberal." I don't know, but it's interesting to me that the numbers are unbalanced. (Or perhaps I'm just missing other prefixes that balance this out? That's a possibility, too.)
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Web design bleg:

I manage website A with MS Frontpage 2003. On one of the pages on site A, I would like to include the most-recent contents of an RSS feed from site B (which is a Typepad weblog). How do I accomplish this?

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Rob Natelson, the Spending Power, and Fiduciary Duty:

A recent article in the Texas Review of Law and Politics, by my Independence Institute colleague Rob Natelson (who is also a constitutional law professor at the University of Montana) applies some cultural context to the original meaning of the spending clause.

At the time of the Founding, the legal principles of "fiduciaries," "servants," or "agents" were well-known. A fiduciary/servant/agent was expected to act impartially, not for his own self-interest, on behalf of the principals. For example, if a person were the trustee of an estate for three children, the trustee would be required to give each of the children equal earnings from the trust. (Unless there were a good reason not to. i.e., the one child was independently wealthy from other income; one child had made an improvident marriage).

Natelson argues that the fiduciary principles are incorporated into the Constitution, and provide the basis for "rational basis with bite" review of congressional spending. (That is, until the 1936 Butler case is over-ruled, and Congress is again required only to spend in furtherance of enumerated powers, rather being allowed to spend for anything it chooses.)

For example, Congress spends money to establish a National Institute of Obesity Research in Mississippi. The spending will provide a much greater financial benefit to Mississippi than to any other state, but the purpose of the NIOR is clearly to benefit the entire nation, by improving everyone's health. This spending passes the rational basis with bite test.

In contrast, consider the earmark which former Senator Conrad Burns created, in order to provide funds for capital construction at the University of Montana Law School. This would appear to be special-interest spending for the benefit of a single state, not for the nation as a whole. Such spending would fail the rational basis with bite test. If, perhaps, Congress made a finding that some states were chronically underlawyered, and provided capital construction grants for expanded law school facilities in all such states, then the spending might pass the Natelson test. (The above examples are my own, not Natelson's, although he does cite the Montana earmark as an example of pork.)

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"A well regulated oral argument, being necessary to the security of a free State, the right of the lawyers to keep and spare hours, shall not be infringed.": That seems to be the first principle for the Supreme Court to interpret in DC v. Heller. (Hat tip: Howard)
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David Young on the pro-DC Historians Brief in DC v. Heller:

Published today on History News Network, an article by David Young which critiques an amicus brief filed by 15 history/law professors, arguing against the standard model of the Second Amendment. If you would like a copy of the article with citations, just go to Young's website, and e-mail him a request. If you are interested in studying the original documents about the Second Amendment from the Founding Era, Young's book The Origin of the Second Amendment is an outstanding, and amazingly thorough resource.

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Originalist Analysis of George Washington and Establishment of Religion:

The Texas Review of Law and Politics has a review of the new book by co-authored by my Independence Institute colleague Joseph C. Smith, Under God: George Washington and the Question of Church and State. The book examines Washington's views and practices on issues of related to government support of religion. The book concludes that Washington was far less concerned about separation of church and state than were Jefferson and Madison, and that Washington's views deserve greater consideration from modern courts than they have received.

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Worst Pizza Ever:

I recently had the misfortune of dining at Cici's Pizza Buffet. My wife and I agreed that it was easily the worst restaurant pizza we've ever had. Not just "bad-pizza bad", but just bad as in "yuck". Nevertheless, the place was packed, presumably because you get all the pizza, salad, and dessert you can eat for $5.49. Middle America is often accused of preferring gluttonous excess over smaller, but higher quality, quantities, and I suppose this is a case in point.

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Abuses of the Forensic Science System Leading to False Convictions:

Radley Balko has been all over this issue, and continues his excellent work here. This is an issue libertarians have largely ignored, but shouldn't.

I've been doing some work on related issues (some of which you can read in this paper), and over time I've become extremely suspicious of prosecutors. Far too many of them seem to value "getting a conviction" over ensuring that the convicted person is actually guilty of the crime charged. I used to feel somewhat contemptuous of defense attorneys, wondering how anyone can defend people they know are guilty, and I still couldn't do it myself.

But we need good criminal defense attorneys. Even with a vigorous adversarial system, prosecutors still all too frequently rely on junk science, withhold exculpatory evidence, and otherwise abuse the system. If not for lawyers willing to defend criminal defendants, guilty and innocent alike, and thus making the prosecutors develop evidence to prove their cases beyond a reasonable doubt, the situation would undoubtedly be much worse.

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Dora Explains the Roadmap:

When I was in Israel in December, my daughter had a horrible stomach flu for several days, which we spent in front of the t.v. watching translated versions of Dora the Explorer and other cartoons. So you might not find the video below as funny as I did.

Speaking of Dora, while in the U.S. she teaches basic Spanish, in Israel she teaches basic English. What I found odd is that when she speaks English on Israeli t.v., she misprounces English in ways that would be predictable for an Israeli, as in "We deed eet" instead of "we did it." I couldn't figure out why, if they are going to use Dora to teach English, they didn't have her use proper pronunciation.

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Sunday, February 17, 2008

Fifth Circuit Strikes Down Texas Sex Toy Ban:

The US Court of Appeals for the Fifth Circuit recently struck down Texas' law banning the sale, lending, or giving away of sex toys. I think that the court was right to conclude that the sex toy ban is unconstitutional under the Supreme Court's decisions in Lawrence v. Texas (which invalidated laws banning both homosexual and heterosexual sodomy), and Griswold v. Connecticut (striking down bans on the sale of contraceptives).

There is an obvious distinction between Lawrence and the sex toys case in so far as anti-sodomy laws are often motivated by hostility to gays; anti-sex toy laws aren't backed by a comparable invidious hostility to a particular social group. However, as the Fifth Circuit opinion notes (pg. 8), the Lawrence decision was deliberately written to avoid basing its reasoning on the anti-homosexual motives behind anti-sodomy laws. Instead, "the [Lawrence] Court explicitly rested its holding on substantive due process, not equal protection. ... [T]he Court concluded that the sodomy law violated the substantive due process right to engage in consensual intimate conduct in the home free from government intrusion."

The Fifth Circuit majority also adds some additional reasons why this case falls under the Lawrence-Griswold paradigm. As it points out, all three cases involve state intrusion on intimate sexual conduct primarily on the grounds of enforcing public "morality." Judge Barksdale in his dissent does a solid job of presenting the opposing view; but I am not convinced. To the majority's arguments, I would only add that the "public health" rationale advanced by the state in Lawrence was actually stronger than that put forward here. Anal sex creates considerably greater risk of STD transmission than does the use of sex toys.

This case creates a circuit split over the issue, since the 11th Circuit upheld Alabama's sex toy ban in Williams v. Attorney General of Alabama, 378 F.3d 1232 (11th Cir. 2004). It will be interesting to see if the Supreme Court takes the case in order to resolve the split.In the meantime, the Fifth Circuit has struck down two of the last four remaining sex toy bans in the country (Texas and Mississippi, both of which are within the Circuit's jurisdiction). Only Alabama and (I am ashamed to say) my own state of Virginia continue to engage in this particularly benighted form of "morals" regulation.

CONFLICT OF INTEREST WATCH: I clerked on the Fifth Circuit back in 2001-2002. However, this case arose long after I left, and my judge was not on the panel.

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Did the Ninth Circuit's "Plead the Fifth" Case Get It Right?: The en banc Ninth Circuit recently decided a very interesting Miranda case, Anderson v. Terhune, which is destined to be known as the "I plead the fifth" case. Eugene mentioned it below, and there's a chance the Supreme Court will grant cert, so I wanted to offer my thoughts on the case.

  My bottom line: The majority opinion spends 10 pages on an easy question but then gives only a short paragraph to the really hard issue. Only Judge Bea picked up what I think is the key issue in the case: Do the consequences of the initial Miranda violation include suppression of a confession made after questioning had stopped and the suspect then reinitiated the interview? The Supreme Court has never answered that. But I think the argument most consistent with the Supreme Court's cases is probably "no."

  First, the facts of the case. Anderson killed Clark, and was later brought into custody and interviewed for several hours about the crime. It's unclear if Anderson was read his Miranda rights, but it's pretty clear that at various stages of the interview he said that he wanted the interview to stop. For example, in response to the officer's statement at one point that Anderson killed Clark, Anderson says, "No, way! No, way. I — You know what, I don’t even wanna talk about this no more. We can talk about it later or whatever. I don’t want to talk about this no more." Later, the officer starts asking Anderson about his drug use, asking detailed questions about what kind of pipes he uses. Anderson doesn't want to talk about that, though and says, "I plead the fifth." The interview continues, until eventually Anderson asks to talk to a lawyer. At that point the interview stops. Later on, though, Anderson reinitiates the interview on his own and decides he wants to make a confession. He then confesses to killing Clark.

  The question in the case is whether the confession is admissible. The state court held that there was no Miranda violation in this case because Anderson hadn't clearly invoked his right to remain silent. Under Miranda, when a suspect states that he doesn't want to talk, the questioning is supposed to stop. According to the state court, this rule didn't matter because Anderson wasn't sufficiently clear that he wanted the interview to stop.

  Writing for the en banc Ninth Circuit, Judge McKeown concludes that this was an unreasonable application of Supreme Court Miranda law. In fact, it's actually quite clear that Anderson had asserted his right to remain silent. Therefore Miranda was violated. That holding takes up most of the majority's time, and I agree with it. The assertion of his right to remain silent was very clear and unambiguous.

  The difficulty for the majority is that Anderson's confession was not made right after he asserted his right to remain silent. Rather, Anderson later asked to speak to a lawyer, the questioning stopped, and Anderson then reinitiated questioning on his own and confessed. That raises a really interesting Miranda question that the Supreme Court has never answered: If the police violate a target's Miranda rights, and then later the target reinitiates questioning on his own and confesses, is the confession inadmissible as a fruit of the Miranda violation or is it admissible as an independently allowed statement following a valid waiver of Miranda rights?

  Judge McKeown sprints over this question at the very end, seeing it as obvious that the later confession must be excluded as a fruit of the Miranda violation. The thinking seems to be that this is the only way to really deter the government from making the initial Miranda violation:
  We cannot simply suppress the portion of the interrogation that occurred after the invocation of the right to silence and before Anderson’s purported re-initiation of the interrogation. Doing so would eviscerate the mandate to "scrupulously honor[ ]" the invocation of Miranda rights. We understand the phrase "scrupulously honor" to have practical meaning. The interrogation must stop for some period of time. Although the Supreme Court has yet to tell us how long the break in questioning must last, in this case there was no cessation at all. . . . . Although deference must be given to state court determinations under AEDPA, we would be abdicating our responsibility to abide by Supreme Court precedent and to police the Constitution’s boundaries were we to permit such an egregious violation of Miranda to go unchecked.
  The sentiment here is certainly commendable. At the same time, I think the Supreme Court's Miranda caselaw tends to point in the opposite direction. First, as Judge Bea points out in his dissent, the Supreme Court's decision in Oregon v. Bradshaw allowed a suspect to reinitiate questioning following his invocation of his right to counsel. That is true despite the fact that under Edwards v. Arizona, a suspect who invokes his right to counsel cannot be asked any questions at all about the crime, no matter how much time has passed, unless and until he has spoken with counsel. If a target can reinitiate questioning after invoking his right to counsel, it's not obvious to me why he can't reinitiate questioning after invoking his right to counsel when he invoked his right to counsel only after there had been a violation of his right to remain silent.

  One response might be that the confession is a fruit of the poisonous tree, and that suppression is needed to deter police misconduct. But again, the Supreme Court's cases tend to point in the other direction. In particular, Oregon v. Elstad made clear that the Fourth/Fifth/Sixth Amendment's "taint" test, the "fruit of the poisonous tree" doctrine, has no place in Miranda law. As Justice O'Connor explained in Elstad, Miranda rules are more about following the form than the substance:
If errors are made by law enforcement officers in administering the prophylactic Miranda procedures, they should not breed the same irremediable consequences as police infringement of the Fifth Amendment itself. It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.
  Given Elstad and Bradshaw, I think Judge McKeown's conclusion that suppression of the post-warning statement is needed to give "practical meaning" to the right to remain silent sounds a bit more aspirational than grounded in Supreme Court caselaw. Maybe I'm just missing something, and I can't think of an opinion squarely rejecting Judge McKeown's view. But considered de novo, the majority's view on the remedy does seem in tension with the most relevant Supreme Court precedents.

  The question then comes down to how deferential AEDPA review changes the picture. In particular, how does the deferential review of AEDPA apply when the state court affirms a conviction on an incorrect rationale but there is an alternative reason to affirm the conviction that the state court didn't reach because it didn't have to reach it? Should the court imagine what that argument would have looked like, and then consider whether it would have been unreasonable? Or should the court apply de novo review? Off the top of my head, I'm not sure of the answer. If the court is supposed to apply de novo review, then Judge McKoewn's approach to the remedy strikes me as a possibility: deserving of much more analysis, and in tension with several cases, but a possibility. But if the remedy question deserves deferential review, then I tend to think that the majority was wrong and Judge Bea's view is correct.

  Finally, if you're wondering why the Ninth Circuit glossed over the remedy question, one possibility is that the judges doubted the officers' assertions that Anderson had reinitiated the questioning. Note how the majority describes what happened after Anderson had asserted his right to counsel, with my emphasis added:
At that juncture, an officer turned off the tape recorder and, somewhat suspiciously, following this hiatus, the officers concluded that Anderson wanted to reinitiate the discussion.
Similarly, the Court later refers to "Anderson’s purported re-initiation of the interrogation" (emphasis mine). This is just speculation, of course, but the insertion of "somewhat suspiciously" and "purported" makes me wonder if the judges didn't get into the consequences of the reinitiation because they doubted it had happened. If it didn't happen, then the confession was clearly inadmissible.
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Sunday Song Lyric: Last week's song lyric (Amy Winehouse, "You Know I'm No Good") prompted a discussion of Nirvana and its troubled frontman, Kurt Cobain. As it happens, Cobain's bandmate, Dave Grohl, went on to form the Foo Fighters, another great band. Like Winehouse, the Foo Fighters had several Grammy nominations, performed at the awards (with John Paul Jones conducting the backing orchestra), and even managed to take home a golden gramaphone of their own.


The Foo Fighters' current single off of Echoes, Silence, Patience & Grace, is "Long Road to Ruin." Here's a taste:

Hey now don't make a sound
Say have you heard the news today?
One flag was taken down
To raise another in it's place

A heavy cross you bear
A stubborn heart remains unchanged
No home, no life, no love
No stranger singing in your name

Maybe the season
The colors change in the valley skies
Dear God I've sealed my fate
Running through hell
Heaven can wait

Long road to ruin
There in your eyes
Under the cold streetlights
No tomorrow
No dead-end in sight
The full lyrics are here. The song has an amusing video directed by ex-Lemonheads bassist Jesse Peretz (who also directed the band's award-winning "Learn to Fly" video, among others.
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