"George Washington ... so quickly tired of the infighting among his Cabinet and vagaries of public opinion that he stepped down from the presidency after a single term," says an L.A. Times article, in the course of discussing HBO's John Adams biography. And here I thought he had served from 1789 to 1797, which is to say two terms (though the first was a titch short, starting on April 30 rather than March 4).

A French bill (No. 791, April 9, 2008), would provide (translation by my brother Sasha):

"Art. 223-14-1. The fact of provoking a person to seek an excessive thinness by encouraging prolonged dietary restrictions having for effect to expose him to a danger of death or to directly compromise his health is punished by two years of imprisonment and 30,000 euros of fine. The penalties are increased to three years of imprisonment and 45,000 euros of fine when this seeking of excessive thinness has provoked the death of the person.

"Art. 223-14-2. Propaganda or publicity, whatever the method, in favor of products, objects, or methods recommended as means of achieving an excessive thinness having for effect to directly compromise health, is punished by two years of imprisonment and 30,000 euros of fine."

I just read the paper that Stuart just noted; I'm not econometrician enough to tell whether the analysis is sound, but I'd love to hear from those who are.

Note, though, that even if the statistical analysis is correct (which it might be), this still doesn't tell us why this effect is present (as the paper makes clear). One possible reason, which the paper points to, is the conventional wisdom that Yale students learn a lot of theory but not a lot of doctrine.

But there are other possible reasons. For instance, perhaps Yale has such an excellent reputation that Yalies who are relatively far down in the class get more clerkships than comparably ranked students at comparable quality schools. (I have indeed heard that this is the case, though I have no hard data on the subject except for this appellate clerk data.)

Say, for instance, that the Yale district court clerks generally come from the 25th to 75th percentile at Yale, and on average represent the 50th percentile. But say the Harvard district court clerks on average represent the 55th to 85th percentile at Harvard, and on average represent the 70th percentile. And say the Yale and Harvard student bodies are on average comparably good (or perhaps even that Yale is on average better, but only by a little), so that the people at the 50th percentile at Yale are a little less good at legal analysis than the people at the 70th percentile at Harvard.

The higher reversal rate associated with Yale clerks may then just reflect the lower average quality of Yale clerks, not the lower average quality of Yale graduates or of a Yale education. And this lower quality would flow from the school's reputation exceeding its actual merits (even if its merits are very great).

Likewise, the paper itself points to some other possible explanations, for instance "a grading system that is not sufficiently partitioned to allow judges to identify the quality of applicants": "Officially, there's a system of honors, pass, low pass and fail, but three-quarters or more of the class gets a pass, and professors rarely give out low passes ...." That too would be a way in which the average quality of Yale clerks might be lower than the average quality of other clerks (if it is), even though the average quality of the entire Yale class might be as good or better as that of other schools' classes.

Thanks to InstaPundit for the pointer.

The Tampa Tribune reports:

The state Senate this week opened discussions on ... replica bull testicles dangling from the back bumpers of vehicles. One senator wants the owners of such swaying baubles to be subject to a $60 fine.

Sen. Carey Baker, R-Eustis, sparked the discussion in the august senate chambers this week. Senators tried not to get too graphic, as a bunch of school children watched from the gallery....

Sen. Victor Crist, a Republican whose district covers part of Hillsborough and Pasco counties, was flabbergasted that the discussion took place at all.

"It was a waste of time," he said this morning. "We have better things to do than sit down and listen to a debate on whether or not someone should be allowed to hang an ornament on their trailer hitch or not.

"To me," he said, "It's a First Amendment right of personal expression as long as it's not rude, crude or lewd, and it has not been proven to be that." ...

The vehicle accessory has spawned a couple of very successful Internet mail order businesses. Your Nutz, a California company, boasts colors including sun-kissed sienna, dark forest green and even electric blue lighted sets that cast an eerie glow....

"Every time this happens," [David Ham, founder and owner of Your Nutz] said, talking of moves to ban the product, "it drives my sales through the roof. I can't thank this lawmaker enough. I'm considering contributing to these guys who are coming up with these bills." ...

"Florida is not the first state to do this," [BullsBalls owner John Saller] said. Virginia and New Jersey legislators have tried similar sanctions, and so far all attempts to reel in the replicas have failed, he said.

Oh, and let's praise the Internet for this: "All that is thanks to the Internet, [Ham] said. 'If it wasn't for the Internet,' he said, 'I wouldn't have started this business, and there would not be a testicle industry.'" Another way technology makes the world better.

Thanks to Brian Smith for the pointer.

So says a state prosecutor, dealing with an arrest for this non-crime. According to the Sarasota Herald-Tribune,

Randy Sievert did not commit a crime when he snapped a photo of an undercover Manatee County sheriff's vehicle from the road, a state prosecutor said this week in a case that has drawn national attention.

Deputies confronted Sievert in February and ordered him to erase any photos he took standing at the scene of a drug-related search warrant. Authorities called Sievert a "known" drug dealer whose photos jeopardized officer safety. Sievert, 20, was charged with interfering in a search warrant....

Sievert has been jailed without bail since his arrest; the obstruction charge violated his probation in two drug cases.

A person cannot be charged with obstruction or resisting arrest if the police detention is unlawful, an assistant state attorney, Tony Casoria, said in a memo released this week. Sievert did not physically interfere with the search warrant, the prosecutor said.

Casoria said Sievert "took a photograph in a public place, across the street from the home where law enforcement were conducting their search." ...

In declining to prosecute Sievert, the state pointed to a decision in a federal lawsuit in which a judge awarded a man damages for his arrest for videotaping police.... "The activities of the police, like those of other public officials, are subject to public scrutiny," [the judge in that case wrote]. "Robinson's right to free speech encompasses the right to receive information and ideas."

From Karen Marie Handy, a.k.a. Aaliyah Al-Aziz v. United States, 2005 WL 6115381 (Ct. Fed. Cl.), decided May 6, 2005 but — as best I can tell — just posted on Westlaw (paragraph breaks added):

Count I ("Copyright") [of the Complaint] states: "[A]ll materials and written works containing any biblical, historical and religious relevance" and "[a]ny mentioning of my name" are "the sole property and ownership of God .... [and] should have been copyrighted to God." Count II ("Patent") states: "Any patent taken on any goods, services, products with respect to any representation of God, her deity, character, symbol, and any historical person has been blatantly disregarded as to ownership by God only .... [and] should have and be reserved for my approval only."

Count III ("Taking Personal Property") arguably asserts a Fifth Amendment takings claim: "All property contained within the limits of the Earth, its space and such are the sole ownership of God." Counts IV and V ("Miscellaneous Damages") appear to allege further takings claims, violations of the free exercise clause of the First Amendment, and other constitutional violations.

The common denominator in the first three counts, as well as the takings component of Count IV, is that God's rights in various property interests have been injured in some way. Plaintiff lacks standing to bring such claims, however.... It is clear from plaintiff's complaint ... that she does not claim to have suffered an "injury in fact" for herself, but on behalf of a third party--God.

It should be noted that plaintiff attempted to cure this defect. In a document dated April 6, 2005, which the court treated as a response to defendant's motion, plaintiff states: "To make the following statement very clear to you, I am God, Allah, as stated before, I will not tolerate being referenced to as anyone other than that." This mere allegation, however, is insufficient to satisfy standing requirements. Further, weighing any evidence pertaining to the truth of this statement would involve a nonjusticiable matter....

The various other constitutional claims contained in Counts IV and V are also beyond this court's jurisdiction. See United States v. Mitchell, 463 U.S. 206, 218 (1983) (holding that this court's jurisdiction is limited to cases in which the Constitution or a federal statute mandates the payment of money)....

The post on prominent women bloggers made me wonder — is there some good and relatively broad aggregator of blog traffic statistics, besides Truth Laid Bear and Alexa? Truth Laid Bear is good, but it's missing many blogs, and also has some seeming junk data in it. Alexa, as best I can tell, works only with top-level domain names (and may suffer from various self-selection biases).

Can one do better than that, even as roughish estimates? Or is the problem simply that many leading blogs' counters are hidden, and the Truth Laid Bear list is as good as one is going to get?

Megan Carpenter's Glamour magazine blog asks "Why are all the big political bloggers men?," and in the process says this:

Ezra Klein agreed with Amy about the ghettoization of female voices, noting that while male political bloggers are known as "political" bloggers, women are more often known as "feminist" bloggers. "There's this rich and broad feminist blogosphere, which is heavily female and very political, but considered a different sort of animal. Is Jill Filipovic a political blogger? Ann Friedman?" he says. Male bloggers are seen as talking about politics with a universal point of view, but when we women bring our perspective to the field, it's seen as as a minority opinion.

Rachel Lucas responds in some detail, but I particularly liked this response to the passage quoted above:

I clicked on the hyperlinks of both those names to decide for myself if they were “political” and not “feminist” bloggers, and in so doing, I discovered the names of their actual blogs. And I shit you not, these two blogs, which it is apparently so very wrong to label “feminist,” are called:

Feministing.com

and

Feministe.us

Bam. Game over, pal. You lose.

It’s like trying to claim that John Hawkins is unfairly labeled a “right wing news blogger,” and then providing a link to his site, which is called RIGHT WING NEWS. Sure, he writes about things other than right wing news, and those female bloggers write about things other than feminism and even women in general, but not a lot.

Plus, as Rachel Lucas points out, how do you ask "Why are all the big political bloggers men?" and miss Michelle Malkin? And if you mention some of the somewhat lower-traffic but still prominent bloggers, why ignore Megan McArdle and Ann Althouse (an omniblogger, but with a good deal of political and policy content)?

Thanks to InstaPundit for the pointer.

Apropos my post on this from yesterday, my sister-in-law Hanah Volokh, who was the chief articles editor on the Georgetown Law Journal this past year, reports that during that year the journal accepted for publication William Baude, The Judgment Power, 96 Geo. L.J. (forthcoming August 2008), and Joseph Blocher, School Naming Rights and the First Amendment's Perfect Storm, 96 Geo. L.J. 1 (2008).

The House of Lords decision I discuss below rejected a free speech claim brought by an animal rights group, but in the process reasoned this way (paragraph break added):

In the present case also the proposed advertisement is wholly inoffensive, and one may be sympathetic to the appellant’s aims or some of them. But the issue must be tested with reference to objects with which one may not be sympathetic.

Hypothetical examples spring readily to mind: adverts by well-endowed multi-national companies seeking to thwart or delay action on climate change; adverts by wealthy groups seeking to ban abortion; or, if not among member states of the Council of Europe, adverts by so-called patriotic groups supporting the right of the citizen to bear arms. Parliament was entitled to regard the risk of such adverts as a real danger, none the less so because legislation has up to now prevented its occurrence.

Now I can sympathize with a judge who is just trying to point out that the free speech claim could be raised as to controversial speech as well as less controversial speech — or even trying to point out to liberal readers that the law would apply to conservative speech as well as liberal speech. But is it just me, or is there a pretty distinct tone of personal disapproval with regard to the examples?

The right to bear arms, in the example, wouldn't just be raised by someone; it would be raised by "so-called patriotic groups." "So-called" in this context sounds pretty pejorative, no? The multi-national companies wouldn't just be expressing their views; they'd be seeking to "thwart or delay action," again seemingly something of a pejorative characterization (though not as clearly so as "so-called," I think). And all this speech would be "a real danger."

Now naturally the judges are entitled to their own views about the merits of those who would support the right of the citizens to bear arms. But this just highlights my point, I think: The approach the court upholds, while ostensibly aimed at equality and "level[ing]" "the playing field of debate," simply entrenches elite opinion. Elite judges are worried about "so-called patriotic groups" and attempts to "thwart or delay action." I expect that opinion among the broadcasting elites includes the same or similar prejudices. Groups with outsider views can only get into the broadcaster programs with the broadcasting elite's permission; and when they try to pay money instead, the political and judicial elites keep them from doing that, all in the name of leveling.

And one more thing, why just in countries outside the Council of Europe? Wouldn't citizens of the Council of Europe — even "so-called patriotic groups" of such citizens — be entitled to argue for the right to bear arms, at least if the law allowed them to spending money for such "danger[ous]" activity?

UPDATE: Commenter Virginia reminded me of a passage that also struck me, but that I then forgot to stress in this post:

Nor is [a level playing field of debate] achieved if well-endowed interests which are not political parties are able to use the power of the purse to give enhanced prominence to views which may be true or false, attractive to progressive minds or unattractive, beneficial or injurious.

1. One problem with the "equalization" argument for campaign finance restrictions — especially those applied to independent spending by individuals or organizations — is that their logic reaches considerably beyond campaigns. If fairness concerns justify barring expensive speech aimed at backing or defeating a candidate or ballot measure, why not speech aimed at supporting or opposing broader ideological views (whether abortion rights, gun rights, health care reform, or whatever else)?

After all, changes in public attitudes about issues may quickly affect candidates and ballot measures. More broadly, if broader "constitutional values," such as democratic self-government, justify restraining the spending of some to "level the playing field," one would think that these values would have the same effect in all aspects of democratic self-government — and First Amendment law has of course recognized that rights of "democratic self-government" extend to opinion formation generally and not just to election campaigns.

We see the same when we look at some of the rhetoric of those who would support broad campaign finance speech restrictions. For instance, Justice Stevens justifies his position in favor upholding such restrictions on the grounds that "money is property; it is not speech," and

Speech has the power to inspire volunteers to perform a multitude of tasks on a campaign trail, on a battleground, or even on a football field. Money, meanwhile, has the power to pay hired laborers to perform the same tasks. It does not follow, however, that the First Amendment provides the same measure of protection to the use of money to accomplish such goals as it provides to the use of ideas to achieve the same results.

Exactly the same argument would apply to political debate generally, and not just election campaigns. (Justice Stevens does try to limit his argument by suggesting that spending might be protected by broader property rights "unrelated to the First Amendment," and by suggesting that his argument wouldn't apply when "the prohibition entirely forecloses a channel of communication"; yet constitutional property rights, especially outside the right to compensation for physical takings, are notoriously weak compared to the First Amendment, and many restrictions could dramatically affect public debate without entirely foreclosing some medium.) Arguments focused on the risk of corrupting politicians through implicit quid pro quo would not apply quite as sharply, but Justice Stevens is obviously going beyond that.

Likewise, Justice Breyer's and Ginsburg's argument for "balanc[ing] interests" where "constitutionally protected interests lie on both sides of the legal equation" — which Justice Breyer applies to election campaign speech — would apply to pre-campaign speech about public issues as well. If "by limiting the size of the largest contributions, [campaign-related] restrictions aim to democratize the influence that money itself may bring to bear upon the electoral process," then by limiting expensive speech on broader public issues, these broader restrictions would aim to democratize the influence that money itself may bring to bear upon the opinion-forming process, and thus indirectly the electoral process. (More on this here.) And of course many of the past and present arguments in favor of the Fairness Doctrine have explicitly urged equality and fairness as justification in favor of coercive regulations related to public debate broadly (regulations that imposed expensive obligations on stations that carried controversial speech, in order to ensure supposedly fair treatment for rival speech).

2. The reason I mention all this now is I just read a remarkable implementation of this very sort of broad speech-restrictive approach, in last month's House of Lords Decision in R v. Secretary of State for Culture, Media and Sport. English law, it turns out, bans all paid "religious or political" advertising on television and radio — and the House of Lords upheld this ban, precisely on the sorts of equality grounds I described above. And this ban is not at all limited to political campaigns; the loser in the court decision was a pro-animal-rights group that wanted to run a "My Mate's a Primate" campaign aimed at "directing public attention towards the use of primates by humans and the threat presented by such use to the survival of primates." (I take it "mate" was used in the British/Commonwealth sense of "friend.")

What was the rationale? The same sort of equality argument that we see commonly made about election-related speech in America:

[I]t is highly desirable that the playing field of debate should be so far as practicable level. This is achieved where, in public discussion, differing views are expressed, contradicted, answered and debated.... It is not achieved if political parties can, in proportion to their resources, buy unlimited opportunities to advertise in the most effective media, so that elections become little more than an auction. Nor is it achieved if well-endowed interests which are not political parties are able to use the power of the purse to give enhanced prominence to views which may be true or false, attractive to progressive minds or unattractive, beneficial or injurious. The risk is that objects which are essentially political may come to be accepted by the public not because they are shown in public debate to be right but because, by dint of constant repetition, the public has been conditioned to accept them. The rights of others which a restriction on the exercise of the right to free expression may properly be designed to protect must, in my judgment, include a right to be protected against the potential mischief of partial political advertising.

Now of course the court assures us that there are still "other media ... open to the appellant: newspapers and magazines, direct mailshots, billboards, public meetings and marches." But the court also says (as a justification for the selective ban on radio and television advertising) that "there is a pressing social need for a blanket prohibition of political advertising on television and radio" because of "the greater immediacy and impact of television and radio advertising." So people are free to use other media, but precisely because those media are less effective.

Likewise, the court assures us that "It is the duty of broadcasters to achieve [the] object [of providing for expression of differing views] by presenting balanced programmes in which all lawful views may be ventilated." But that of course just means that public debate is within the power of the media elites that run broadcasters, and that run the government agencies that can pressure broadcasters. Outsider organizations are locked out, unable to broadcast their views the way they choose to express them.

Interestingly, the House of Lords here departs from a 2001 European Court of Human Rights decision that held that bans on political broadcast advertising were indeed unconstitutional.

3. Moreover, one of the judges specifically tied the argument to her rejection of the American free speech model, as exemplified in Buckley v. Valeo:

There was an elephant in the committee room, always there but never mentioned, when we heard this case. It was the dominance of advertising, not only in elections but also in the formation of political opinion, in the United States of America. Enormous sums are spent, and therefore have to be raised, at election times: it is estimated that the disputed 2000 elections for President and Congress cost as much as US$3 billion. Attempts to regulate campaign spending are struck down in the name of the First Amendment: “Congress shall make no law ... abridging the freedom of speech, or of the press": see particularly Buckley v [Valeo], 424 US 1 (1976). A fortiori there is no limit to the amount that pressure groups can spend on getting their message across in the most powerful and pervasive media available.

In the United Kingdom, and elsewhere in Europe, we do not want our government or its policies to be decided by the highest spenders. Our democracy is based upon more than one person one vote. It is based on the view that each person has equal value. “Within the sphere of democratic politics, we confront each other as moral equals” (Ackerman and Ayres, Voting with Dollars, 2003, p 12). We want everyone to be able to make up their own minds on the important issues of the day. For this we need the free exchange of information and ideas. We have to accept that some people have greater resources than others with which to put their views across. But we want to avoid the grosser distortions which unrestricted access to the broadcast media will bring.

So this case is not just about permissible restrictions on freedom of expression. It is about striking the right balance between the two most important components of a democracy: freedom of expression and voter equality....

So the English judge — and I expect her colleagues as well — saw the connection between the equality rationale for restricting expensive campaign-related speech and the equality rationale for restricting expensive speech more broadly. She flatly rejected Buckley's approach to campaign-related speech. ("There are aspects of the ban on broadcasting political advertisements which no-one disputes: in particular, advertising by candidates for election, or by political parties, whether or not at election times.") And she went from there to rejecting free speech protection for payments for issue-oriented speech more broadly.

So if you're skeptical that the progression I outlined in item 1 would indeed take place in America, keep in mind what has happened in England.

I'm delighted to say that Scott Keller, who just graduated from Texas last year and is clerking for Judge Kozinski this year, has had his new article -- How Courts Can Protect State Autonomy from Federal Administrative Encroachment -- accepted by the Southern California Law Review, through the normal competitive submission process. This reminds me of Randy Kozel, who had his excellent Reconceptualizing Public Employee Speech accepted by the Northwestern Law Review four years ago, when he was also a freshly minted law school graduate (and Kozinski clerk). I'm sure there are quite a few other examples, too, that I don't know about.

So, a congratulations to Scott, and a reminder that recent graduates can indeed get their scholarship published, even in top journals. I suppose the "Clerk to Judge Alex Kozinski" in the author's note can't hurt in the submission process, but I'm pretty sure that it won't itself make that much of a difference -- if you have an excellent piece, you can get it published in a prominent journal even if you don't have an appellate clerkship.

"Apartments For Rent in Ulaanbaatar," a message (with photos) that just landed in my mailbox overnight.

My student Daniel Koontz is writing an article on free speech and the intentional infliction of emotional distress tort, and a draft of his pointed me to this remarkable case, Dominguez v. Stone, 638 P.2d 423 (N.M. App. 1981). It's nearly 30 years old, but it was decided very much during the modern era of free speech law, and it remains cited as precedent as to its general discussion of the emotional distress tort.

Remarkably, the court held that

1. an elected official could be sued for defamation for accurately saying that a direct of a local program was a Mexican citizen, and

2. he could be sued for intentional infliction of emotional distress for so saying, and for arguing that non-citizens ought not be employed in this job.

It may well be that it would be unconstitutional to actually discriminate against non-citizens in government job decisions, but surely a government official ought to be entitled to condemn the current state of affairs, even if there's nothing that the government may constitutionally do about that state of affairs. This strikes me as a total violation of First Amendment principles; even if the defendant hadn't raised the First Amendment — possible though unclear — those principles have to be considered by the court in developing the state law of torts. Yet a New Mexico appellate court held precisely that.

And while this story is hardly breaking news, it does show how courts can suppress disfavored viewpoints unless they're assiduously policed by higher courts, as well as what bad precedents there are in some state courts. (Note that, procedurally, the court reversed summary judgment in the defendant's favor, which is to say that the court allowed the plaintiff to take the case to the jury. I can't easily figure out what happened at trial, or whether the case settled, but the reversal of summary judgment announces a legal principle that the defendant's speech could lead to liability.)

In any case, here are the relevant facts:

The plaintiff is a 22 year-old Mexican National having been born in Mexico. She has been legally residing in the United States since she was 3 years of age and now is living in Grants, New Mexico....

Plaintiff was the director of the Senior Citizens Program in the Village of Central, New Mexico on September 16, 1980. Defendant Stone was a member of the Board of Trustees of Central which is its governing body. On September 16, 1980, during a public meeting of the Village Trustees and later during a closed meeting, or executive session of the Village Trustees, the defendant made ... statements ... to the effect that plaintiff was not suited for her employment with the Village of Central because she was a Mexican. Defendant's statements included a statement to the effect that the person performing the duties of program director of the Village of Central Senior Citizens Program should not be a Mexican, part of his reason being that the program is funded with American tax dollars.

The defendant interrogated the plaintiff at the meeting concerning payment of income and property taxes and whether she possessed a green card, whether she applied for United States citizenship, and whether she had registered to vote in the United States. On September 17, 1980, the defendant personally went to the office of the Grant County clerk to determine whether plaintiff was a registered voter. He was told she was not.

DEFAMATION OF REPUTATION

... The trial court dismissed this cause of action in its summary judgment.... "A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." The question we are confronted with now is whether there is an issue of fact that any of the comments of the defendant lowered the plaintiff's reputation in the estimation of the community, third parties, or her employers, the Board of Trustees.

The defendant contends that he had some sort of immunity to act as he did because he was a member of the Board of Trustees. We disagree. Public officials are not above the law. "The law protects only those who act reasonably and with a reasonable belief of the truth of their remarks." ...

There is evidence in the record from which a jury could conclude that the defendant was prejudiced against the plaintiff and that he was attempting to persuade the Board of Trustees to accept his views and attitudes towards the plaintiff. There is an issue of fact of defamation of reputation in this respect.

It is common knowledge in New Mexico that the word "Mexican" when used in circumstances similar to those in the instant case connotes prejudice and disparagement. It is also common knowledge in this State that, like defendant, many citizens of Mexican and Spanish descent also served in the armed forces, and some gave their lives for this country. Hardly an Hispanic family in New Mexico escaped the anguish of the Bataan Death March in World War II; Hispanics have served bravely in other conflicts as well.

We are not impressed with defendant's contention that because plaintiff is an alien, she should not be employed in Grant County. President Franklin D. Roosevelt, in an address to the Daughters of the American Revolution in 1938, said: "Remember, remember always, that all of us, you and I especially, are descended from immigrants."

We hold that the court erred in granting summary judgment in respect to this cause of action.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS ...

"One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." ... "The cases thus far decided have found liability only where the defendant's conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by 'malice', or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!'" ...

We discuss here an identical case to the case at bar:

The court in Contreras v. Crown Zellerbach Corp., 88 Wash.2d 735, 565 P.2d 1173 (1977), held that the Plaintiff had sufficiently stated a cause of action under the tort of outrage as defined by the Washington courts and the Restatement (Second) of Torts, § 46 (1965), where it was alleged that the plaintiff, while in the employ of the defendant corporation, was subjected to intentional or reckless conduct on the part of the defendant's agents and employees which was beyond all reasonable bounds of decency and which caused him severe emotional distress by reason of acts of intimidation, demotions, humiliation in public, and exposure to scorn and ridicule, when the defendant's agents knew or should have known that by reason of the plaintiff's Mexican nationality and background he was particularly susceptible to emotional distress as a result of the conduct. Noting that liability under the tort of outrage has been recognized in Washington when premised upon outrageous conduct such as alleged in the present case; the Court pointed out that when one in a position of authority over another allegedly made racial slurs and jokes and comments, this abusive conduct gives added impetus to the claim of outrageous behavior, the relationship between the parties being a significant factor in determining whether liability should be imposed. The Court stated that where a person is not free to leave but must remain in physical proximity to others who continually make racial slurs and comments, it is for the jury to determine whether this is a factor in making the claim one of extreme outrage and the extent to which the employer was or should have been aware of these conditions through its supervisory personnel or by other means. The Court further observed that as to the various slang epithets that may have once been in common usage regarding Mexican-Americans, it was for the trier of fact to determine, taking into account changing social conditions and the plaintiff's own susceptibility, whether the particular conduct was sufficient to constitute extreme outrage. (Emphasis added.)

We believe and hold, that the testimony of the plaintiff and the defendant which we have quoted in this opinion heretofore and all the evidence in the record do establish that an issue of fact does exist as to this cause of action....

It turns out the Commission simply refused to consider Elane Photography's religious exemption claim under the New Mexico Religious Freedom Restoration Act: "To the extent that Elane Photography's arguments in this proceeding sought to raise questions ... as to an automatic preemption of the NMHRA by ... the New Mexico Religious Freedom Restoration Act, those questions are not before the New Mexico Human Rights Commission for determination in this proceeding and, accordingly, are not addressed here."

Is this right? Here's what the New Mexico RFRA says:

[§ 28-22-3:] A government agency shall not restrict a person's free exercise of religion unless:

A. the restriction is in the form of a rule of general applicability and does not directly discriminate against religion or among religions; and

B. the application of the restriction to the person is essential to further a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.

[§ 28-22-4:] A person whose free exercise of religion has been restricted by a violation of the New Mexico Religious Freedom Restoration Act may assert that violation as a claim or defense in a judicial proceeding ....

The New Mexico Human Rights Commission is a government agency, and the New Mexico RFRA was indeed raised to it in Elane's brief. Is the theory that § 28-22-4 is seen as exclusive, so that it can only be raised in judicial proceedings and not administrative proceedings? That would seem odd: One would think that given that all government agencies are bound by the state RFRA, even purely executive officials have an obligation to conform their conduct to it, and adjudicatory administrative officials would as well. The Commission doesn't explain its reasoning on this point.

I should note that the California Constitution explicitly bars administrative agency "To declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional [or preempted by federal law] unless an appellate court has made a determination that such statute is unconstitutional [or preempted]." But that's a California-specific rule, and even it doesn't bar California agencies from considering the extent to which one state statute carves out a defense to or exceptions from another state statute.

The New Mexico Human Rights Commission has just issued its opinion concluding that Elane Photography violated New Mexico law by refusing to photograph a same-sex commitment ceremony; and the opinion clarifies a little about the Commission's rationale. (Recall that the order was originally released last week, but the opinion was apparently just delivered to the parties yesterday.)

For instance, the Commission's rationale isn't limited to wedding photographers, who some people argued (wrongly, in my view) aren't really "creative" enough to get First Amendment protection. Rather, it would apply to freelance writers who refuse to write press releases or Web copy for religions they disapprove of. It would apply to professional singers who routinely hire out for a wide range of events (weddings, bar mitzvahs, and so on) but who don't want to sing at events affiliated with some religion, or for that matter at same-sex commitment ceremonies. It would apply to professional portrait painters who accept a broad range of commissions but prefer, whether for artistic or political reasons, to paint only men or only women, or not to paint people of whose religious activities or sexual orientations they disapprove.

After all, here's the entirety of the Commission's discussion of the First Amendment issue:

The United States Supreme Court has considered the provisions of state antidiscrimination laws similar to the provisions of NMHRA and concluded that: "Provisions like these are well within the States usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments." Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 115 S.Ct. 2338, 2346 (1995). The Court has explained that "acts of invidious discrimination in the distribution of publicly available goods, services, and other advantages cause unique evils that government has a compelling interest to prevent." Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 3255 (1984).

That's a judgment that the First Amendment just categorically doesn't apply to these sorts of antidiscrimination provisions, not a judgment specific to wedding photographers.

Of course, the Commission's rationale also seems legally wrong. It's true that Hurley said that antidiscrimination provisions do not as a general matter violate the First Amendment -- but then it went on to hold that such a provision did violate the First Amendment when applied to a parade's exclusion of a float that was identified as connected to a gay/lesbian/bisexual group. Likewise, Boy Scouts of America v. Dale later held (distinguishing Roberts) that such a provision did violate the First Amendment when applied to the Boy Scouts' exclusion of a gay scoutmaster.

So the Court has made clear that the First Amendment may indeed trump antidiscrimination law when applying the antidiscrimination law would interfere with a group's speech or its expressive association. Elaine Huguenin argued applying the antidiscrimination law here would interfere with her freedom from compelled speech. Yet the Commission simply quoted the general statements from Hurley and Roberts without explaining why the well-recognized First Amendment exceptions to those general statements don't apply to Huguenin's claim.

Pretty poor opinion-writing, it seems to me. But in any event, it shows (as I argued above) that the Commission seems to see rights to be free of compelled speech as being irrelevant to its application of public accommodation discrimination law -- which is why I say that the Commission's reasoning would apply equally to the freelance writers, singers, painters, and more.

I've discussed this phenomenon — of Asians not only being classified together with whites for various race preference programs (and calls for such programs), but of actually being called white — in the past. Razib Khan at Gene Expression points to this San Francisco Chronicle story that exhibits something quite like this:

A new study on physicians in California shows a glaring gap between the number of doctors of color compared with the state's ethnically diverse population, especially among African Americans and Latinos.

At the same time, the state has a disproportionate number of Asian and white doctors, according to the UCSF study, which focuses on doctor ethnicity and language fluency.

It found that out of nearly 62,000 practicing doctors in California, only 5 percent are Latino even though Latinos comprise a third of the state's total population. Only 3 percent of doctors in California are black, compared with 7 percent of the state's overall black population. While Latinos and African Americans make up about 40 percent of the state's residents, fewer than 10 percent of California's doctors are black or Latino.

So I guess that Asians aren't "of color" any more — they're colorless like me. At least it's better than their being "lily white," in the words of the late California Chief Justice Rose Bird.

Or maybe I'm missing something subtle here. After all, there is a glaring gap between the number of doctors of color and the state's ethnically diverse population, even among Asians — it's just that the gap there is the other way. Well, I guess that explains it. Or is it that they're indeed counting all nonwhites, and are just pointing to the "glaring gap" between the 52% nonwhite population and 39% nonwhite doctor share? That doesn't strike me as much of a glaring gap, and it's hard to reconcile with the distinction between the "doctors of color" in the first paragraph and the "Asian and white" in the second; it's odd that the categories in the first paragraph and the "At the same time" paragraph would deliberately overlap. (Plus note that the total nonwhite 52-39 gap appears in paragraph 9, while the "glaring gap" language is in paragraph 1 and the Hispanic-plus-black 40-10 gap is in paragraph 3.)

Oh, and check this out: "Yet within the Asian-doctor category, there is a troubling shortage of Samoan, Cambodian and Hmong doctors, the report found, decrying the overall pool of doctors statewide as inadequate." I guess I didn't realize that Samoans really need Samoan doctors, and Cambodians Cambodian doctors — but if they do, then why not worry about whether there's a disproportionately low number of, say, Serb immigrant doctors, or, if you prefer, doctors of Serb extraction? Why are all whites matched with all white doctors, but Asian ethnic groups seen as needing special help from members of that particular ethnic group?

Finally, the study and the story reason that "minority physicians are far more likely to practice primary care medicine and work with poor or uninsured patients in rural areas, inner cities or other communities with a chronic shortage of physicians." But that's a bit odd — I take it many physicians of all races prefer to make lots of money from rich patients, and quite a few physicians of all races work either full- or part-time with poor patients.

If you want to make sure patients in rural areas and inner cities are served, I would think that the logical answer is to give doctors of all ethnic groups a financial incentive to work there (perhaps as a condition of some scholarship or loan forgiveness program). The answer shouldn't be, it seems to me, finding more doctors of this or that racial group — even if that means relaxing the entry standards for that group, which on average will in some measure work against the interests of the patients that the doctors are likely to treat — and then hoping that they'll serve their own rather than serving the rest of us.

The study itself is available here.

This is from the Ninth Circuit's order in Im v. Mukasey:

The Opinion filed August 13, 2007, appearing at 497 F.3d 990 (9th Cir. 2007), is withdrawn. Further consideration of this appeal pends the Supreme Court's decision in Negusie v. Mukasey, No. 07-499, or further order of this court. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit.

This is an interesting linguistic move, it seems to me. "Pend" is used to mean "awaits" or "is delayed until," but the dictionaries I've checked don't note such a meaning for the verb. Yet "pending" does mean "while awaiting" or "[r]emaining undecided [or] awaiting decision or settlement" (I quote the OED here), so "pend" seems to be used as a back formation from that meaning of "pending." In any case, not unreasonable, though based on my experience and my quick online searches, highly unidiomatic.

A New York Times editorial asserts (thanks to How Appealing for the pointer):

Supreme Court nominees present themselves one way at confirmation hearings but act differently on the court. That makes it difficult for senators to cast informed votes or for the public to play a meaningful role in the process.

The study — with the unwieldy title “An Empirical Analysis of the Confirmation Hearings of the Justices of the Rehnquist Natural Court” — published in Constitutional Commentary, looked at how nine long-serving justices answered Senate questions, and how they then voted on the court. While it does not say that any nominee was intentionally misleading, it still found a wide gap.

Justices Antonin Scalia and Clarence Thomas, for example, told the Senate that they had strong respect for Supreme Court precedents. On the court they were the justices most likely to vote to overturn those precedents. Justice David Souter deferred more to precedent than his Senate testimony suggested he would....

Well, I looked at the study, and I'm not sure I'm quite persuaded by how it categorizes the data. In particular, it seems to me that (according to the testimony reported in the Appendix, quoted below), Justice Scalia generally said that he had strong respect for old precedent -- and my impressionistic sense is that Justice Scalia has acted precisely this way. Justice Thomas, for instance, wrote a separate opinion in favor of overruling the Court's 1798 Ex Post Facto Clause decision in Calder v. Bull; Justice Scalia did not join that. The great bulk of Justice Scalia's votes in favor of reversing precedent have focused on precedent from the past several decades (unsurprising, partly because there's a lot more newer precedent, and partly because Justice Scalia is indeed big on tradition). So I see no "wide gap."

Here's the testimony from the Appendix:

Scalia: Stare Decisis/Precedent

[32] The Supreme Court is bound to its earlier decisions by the doctrine of stare decisis in which I strongly believe.

[37] Q: Well, what weight do you give the precedents of the Supreme Court? A: It depends upon the nature of the precedent, the nature of the issue. Let us assume that somebody runs in from Princeton University, and on the basis of the latest historical research, he or she has discovered a lost document which shows that it was never intended that the Supreme Court should have the authority to declare a statute unconstitutional. I would not necessarily reverse Marbury v. Madison on the basis of something like that. To some extent, Government even at the Supreme Court level is a practical exercise. There are some things that are done, and when they are done, they are done and you move on. Now, which of those you think are so woven in the fabric of law that mistakes made are too late to correct, and which are not, that is a difficult question to answer. It can only be answered in the context of a particular case, and I do not think I should answer anything in the context of a particular case.

[45] Q: [A Supreme Court Justice] said that a precedent might be less authoritative if it had stood for a shorter period of time or if it was a decision by a sharply divide court.... Would you agree with that general sentiment? A: Well, I think the length of time is a considerably important factor. The Marbury v. Madison example that I gave in response to [a previous question.] I am not sure that I agree with [the Justice] that the closeness of the prior decision makes that much difference. I mean, if Marbury v. Madison had been 5 to 4, I am not sure I would reverse it today. But I can understand how some judges might consider that that is an appropriate factor as well. I agree — I certainly agree with the former. The latter would not have occurred to me, but maybe.

[104] I agree with the statement that longstanding cases are more difficult to overrule than recent cases.... [A]s I’ve said, some cases that are so old, even if you waived a document in my face proving that they were wrong when decided in 1803, I think you’d have to say, sorry, too late.

This is one highly general and banal pro-precedent statement ("The Supreme Court is bound to its earlier decisions by the doctrine of stare decisis in which I strongly believe," which is surely true, given that in the overwhelming majority of cases all Justices follow stare decisis simply for pragmatic reasons), followed by three statements expressing respect for old precedent. I wouldn't count this testimony as strongly pro-precedent in any absolute way; and I don't quite see how one can sensibly compare it to the other Justices' statements on precedent, which is what the study purported to do.

If each statement could be fairly boiled down to a simple "for precedent" or "against precedent," then maybe such comparisons could be made (though I doubt it). But if I'm right that Justice Scalia's statements were far from such simple assertions, and instead distinguished different kinds of precedents, then I don't see how the survey can sensibly give Justice Scalia a high pro-precedent score. (Justice Thomas's statements are likewise hard to categorize as solidly pro-precedent; the study actually put Thomas's views nearer the middle of the Justices', but again I don't quite see how one can sensibly do that, given the qualified nature of the Justices' stated views on the subject.)

There are lots of other possible problems here, some of which the article quite candidly delves into on PDF pages 33 and 34. But this problem alone should, I think, lead one to be quite skeptical of the New York Times assertions of a "wide gap" between the Justices' statements and their votes, and especially as to Justice Scalia. (I should say that the broader point that Justices' votes are hard to predict from their confirmation statements does strike me as correct.)

I'm delighted to report that Cass Sunstein will be guest-blogging this week about his new book, Nudge: Improving Decisions About Health, Wealth, and Happiness (that's pronounced "nuhdge," not "noodge"). The book, which is cowritten with Prof. Richard H. Thaler, argues for a sort of choice-enhancing paternalism — a framework in which the government can create "choice architecture" that would push people into better decisions (i.e., ones that the actors on reflection would ultimately agree are better for them) by taking into account natural cognitive biases to which people are subject, without restricting freedom of choice.

Sunstein is now Karl N. Llewellyn Distinguished Service Professor at the University of Chicago Law School, but he will be joining the faculty of Harvard Law School next year. He is the author of many books, including Republic.com 2.0, Worst-Case Scenarios, Infotopia, and Laws of Fear. He is also, by a large margin, the most-cited full-time law professor, judging by citations in law reviews. I'm sure that many of our readers will disagree with Sunstein's posts, but I'm also sure that they'll be interesting and provocative.