|
|
Saturday, April 26, 2008
Fred Thompson with Sean Hannity:
I, like some others around here, was a member of Fred Thompson's legal policy team before he dropped out of the Presidential race. Here's an interview between Sen. Thompson and Sean Hannity.
To me, perhaps the most interesting comment is Fred's rejection of the idea that he would like to be VP. His rationale is intriguing--running for such an office is such an awful experience that the only position worth going through that sort of unpleasantness is to be President. Being VP--"flying off to attend state funerals" is how he says it--just isn't worth it to go through the process. The effort is worth it only if you actually get to do something. He suggests that such a position may be worthwhile for someone with more ambition than he has.
I also like his frank observation that most of the things that Presidential elections are about are things that the President can't do anything about anyway.
As an admitted Fred fan, the interview reminds me of why I liked him in the first place. And why he simply may have been too normal of a person to be President--or VP either, apparently.
Friday, April 25, 2008
The Hierarchy of Legal Authority:
In response to Eugene's earlier post about an anonymous VC blog comment being cited in a legal brief with the parenthetical that the comment was written "with some apparent authority," commenter "alias" chimes in that the hierarchy of authorities to rely on in briefs must go something like this:
1. On-point Supreme Court cases
2. On-point binding court of appeals opinions
3. Analogous Supreme Court cases
....
6. Dicta in Supreme Court cases
....
12. Law review articles
...
22. Blog posts by well-known law professors, opining persuasively in their area of expertise and citing authority.
...
45. Op-eds in national newspapers.
...
75. Blog comments written by well-known law professors, opinion persuasively in their area of expertise and citing authority.
...
3,015,036. Particularly clever LolCats pictures.
3,015,037. Blog comments by people who speak "with some apparent authority" Very funny.
Ex-Terrorist and Law Professor Bernardine Dohrn:
Given an opportunity to disavow her violent criminal past as a member of the Weather Underground via a challenge in The Daily Northwestern, she instead appears to justify her actions based on the fact that she believes that she was engaged in a fight against "the illegal, immoral war against Vietnam and the organized terrorism of my government." She also appears to claim that any attempt to question her current views about her past activities constitutes "McCarthyism," as if questioning an ex-terrorist regarding whether she still believes in terrorism is somehow beyond the pale. (H/T: Overlawyered.)
UPDATE: The exchange at issue took place in April 2005, not this year as I initially thought. Still, it's somewhat newsworthy given the recent controversy over Dohrn's husband, partner in crime, and fellow academic, Bill Ayers.
"The End, The Beginning":
Over at Discourse.Net, lawprof Michael Froomkin offers a very gracious tribute to a retiring colleague.
Three Cheers for Commenter BruceM,
whose comment was cited in a Fourth Circuit appellate brief a few months ago. It's in the Reply Brief of Plaintiff-Appellant Christopher Scott Emmett, filed by the Virginia Capital Representation Resource Center in Emmett v. Johnson, 2008 WL 345230, *5 n.5 (4th Cir. Jan. 11):
Since the grant of certiorari in Baze, some commentators have suggested that other controlled substances could be used in lieu of a barbiturate to cause painless death. See, e.g., The Interesting Case of Baze v. Rees, http://volokh.com, archived entry posted 12/31/2007 at 1:09 a.m., comment #8 by BruceM (speaking, with some apparent authority, in favor of using potent opioid to accomplish lethal injection).
A quick search also noted that I quoted a comment by James Fulford in my Washington U. L. Rev. piece on Scholarship, Blogging, and Tradeoffs: On Discovering, Disseminating, and Doing, and Larry E. Ribstein quoted a comment by Marty Lederman (a prominent lawyer, and now a prominent blogger, in his own right) in his piece in the same symposium, on The Public Face of Scholarship. But this is the first comment cite I've seen in the briefs, and I've seen none in court cases. If you can find other such cites — again, not to blog posts as such but to comments, preferably by people who aren't themselves noted scholars, lawyers, or bloggers — please note them in the comments below.
Romeo-and-Juliet Laws as Reflecting Lesser Moral Responsibility of 16-Year-Olds?
Some responses to my post about age of consent and Romeo-and-Juliet laws have said something like this:
The question is not whether the behavior is harmful and wrong (in both cases, the answer is equally yes). Instead, it is whether someone is responsible. 16 year olds are not mature enough to decide to have sex; 30 year olds are. Thus a 30 year old can be punished for having sex with a minor, but a 16 year old can't. I don't really see the problem here.
This is an interesting theory, but I'm skeptical about it.
First, we generally think that 16-year-olds are supposed to comply with the law, are capable of doing so, and should be held responsible for failing to do so, especially as to offenses that are otherwise seen as serious crimes. We may sometimes punish them less severely, for instance by trying them as juvenile offenders. But we don't categorically let them off the hook for a wide range of crimes -- robbery, assault, drug use, and the like -- just because they're 16. (At some age, we might indeed let a child off the hook, or at least handle him through a system that is truly therapeutic and nonpunitive, but that age tends to be far below 16.)
Second, the "16-year-olds shouldn't be punished for what would otherwise be statutory rape because they're too immature" argument doesn't fit well the way many of these laws actually operate. Consider, for instance, the Florida law, which sets a general age of consent of 18, but allows under-24-year-olds to have sex with 16- and 17-year-olds. It's hard to say that the law is trying to cut slack to 21-year-olds because they're too immature, but treats 30-year-olds as criminals because they are mature enough to know better. Sure, 21-year-olds (and even 23-year-olds, who get the same immunity) sometimes are immature in lots of ways, but not generally in the law's eyes when it comes to criminal responsibility.
The same would be true if you had a law like Pennsylvania's "sex with 13-to-15-year-olds OK if the actor is no more than 4 years older than the 13-to-15-year-old" law, which is a pretty common sort of model. This means that even 19-year-olds are excused if they have sex with 15-year-olds (assuming a slightly under 4-year gap), but 18-year-olds aren't excused if they have sex with 13-year-olds.
There might be a good explanation for this rule -- I do think that sex with 13-year-olds is likely to be much more morally troubling than sex with 15-year-olds -- but concern that the 19-year-old isn't mature enough to be punished for having sex with the 15-year-old, though the 18-year-old is mature enough to be punished if the other person is 13, doesn't seem like a good explanation. The focus is on the age gap's causing the relationship to be somehow improper, not on whether the defendant is old enough to be held criminally responsible.
The Paranoid Style of Political Ignorance:
Jesse Walker has an interesting column tracing the longstanding prevalence of paranoid conspiracy-mongering in American politics, which dates all the way back to the Revolution and before. What Richard Hofstader famously called "The Paranoid Style in American Politics" has always been common on both the right and the left. Widely believed claims that the US government itself planned the 9/11 attacks Obama is a secret terrorist-sympathizer, that the US government developed the AIDS virus for the purpose of killing blacks, or that the Iraq War was cooked up for the secret purpose of enriching Halliburton and Dick Cheney are among the latest examples (for links to polls on some of these, see here).
An interesting question is why paranoid conspiracy-mongering has persisted despite massive increases in education levels and a great reduction in cost of acquiring accurate political information in the age of the internet and 24 hour cable news. A related question is why so few people are similarly paranoid in their personal lives. Many more people believe that a government conspiracy caused the 9/11 attacks than believe that their coworkers or acquiantances are out to get them.
In my view, the answer to these questions is widespread political ignorance and irrationality. As I explained more fully in my February post on belief in political conspiracy theory:
[I]t is perfectly rational for most people to know very little about politics and public policy - and indeed most people are quite ignorant about even basic aspects of these subjects. Because the chance of your vote influencing the outcome of an election is infinitesmally small, there is little payoff to becoming informed about politics if your only reason for doing so is to be a better voter. By contrast, there are very strong incentives to be well-informed about issues in our personal and professional lives, where our choices are likely to be individually decisive. The person who (falsely) believes that a dark conspiracy is out to get him will impose tremendous costs on himself if he bases his decisions on that assumption; he's likely to end up a paranoid recluse....
...[T]he rationality of political ignorance implies that even people who do have considerable knowledge are likely to be more susceptible to conspiracy theories about political events than in their personal lives. As I explain in this paper . . ., the rationality of political ignorance not only reduces people's incentives to acquire political information, it also undercuts incentives to rationally evaluate the information they do learn. As a result, we are more likely to be highly biased in the way we evaluate political information than information about most other subjects . . . Unlike in our nonpolitical lives, most people have little incentive to critically evaluate their political beliefs in order to weed out biases and and ensure their truth.
Rational political ignorance also helps explain why conspiracy-mongering hasn't declined in an age of increasing education levels and easily available information. Quite simply, even a well-educated rationally ignorant voter has little or no incentive to acquire accurate information or to rationally evaluate the information he does learn. As a result, much of his information-gathering activity will be directed to learning "facts" that are interesting rather than informative and that tend to confirm his preexisting views rather than challenge them. A great deal of social science research shows that people mostly read political media that reflects the views they already hold and show little interest in considering opposing perspectives. Once they accept a conspiracy theory, they are unlikely to seek out information that might refute it.
Is there a solution to the problem? Perhaps not; certainly not an easy one. But if we really want to reduce the impact of paranoid conspiracy-mongering on our society, we should consider reducing the size and scope of government. That way, fewer of our decisions will be made by electoral processes in which ignorance-driven paranoia plays a major role.
The Good Old Days of the Fourth Amendment:
In the comment thread on yesterday's post about Virginia v. Moore, commenter "30yearprof" writes: This seem[s] to pretty well summarize the Supreme Court's evisceration of the 4th Amendment since the 1970's. We seem to have a bench of police "groupies." I hear this pretty often in debates on the Fourth Amendment. The Fourth Amendment has been eviscerated, the complaint goes. The Supreme Court has gutted it; there's hardly anything left. Back in the old days — that's when the Fourth Amendment really meant something. I wonder, though, when exactly were the "good old days" of the Fourth Amendment? Clearly the "good old days" of the Fourth Amendment could not be from 1791 to 1961, before the full application of the Fourth Amendment to the states. Before 1961, the Fourth Amendment didn't do much, as most police work was state local and the Fourth Amendment either didn't apply at all (until 1949) or didn't make any difference in practice (from 1949 to 1961). In 1961, with Mapp v. Ohio, the Fourth Amendment suddenly became a hugely important control on routine police investigations: Maybe if you want to pick a time of the "good old days" of the Fourth Amendment, you say 1961. But no, that can't work. 1961 was before Berger and Katz, before the "reasonable expectation of privacy" test and before the Fourth Amendment applied at all to bugging or wiretapping. So the good old days probably don't include from 1961 to 1967. Maybe we want to start the good old days on December 18, 1967, when the Supreme Court handed down Katz. Maybe. On the other hand, the record in that period is sort of mixed. A few months before Katz, on May 29, the Supreme Court had dramatically expanded the warrant power and overruled the mere evidence rule in Warden v. Hayden. And just a few months after Katz, in Terry v. Ohio, handed down June 10, 1968, the Supreme Court took a significantly watered down approach to the Fourth Amendment to regulate police/citizen interactions on the street. It's kind of hard to know how you balance these cases: for example, was Terry a gutting of the full Fourth Amendment protection, or an expansion of the Fourth Amendment to street enounters? I think it's pretty mixed record to find the real high point of Fourth Amendment protection. The Supreme Court's record since 1968 is also somewhat mixed. It is clearly correct that there are some cases that clearly narrowed Fourth Amendment protection, like United States v. Leon. But a number of the cases that critics say "eviscerated" the Fourth Amendment simply refused to expand Fourth Amendment protections or addressed issues that had never been resolved, like the many cases on aerial surveillance. And then there were also some cases that expanded protection, like Payton v. New York or Kyllo v. United States. If you had to identify a "high point" of Fourth Amendment protection, I suppose you might pick the window from December 1967 to May 1968, or maybe the six years from December 1967 until some of the pro-law enforcement decisions of the Court in 1973. But if that's right, it seems to me that the "good old days" of the Fourth Amendment were actually a pretty narrow window of time: anywhere from a few months to five or six years, around forty years ago, out of a 217-year history of the Fourth Amendment.
The Academic Credo
(or at least An Academic Credo): A commenter on my age of consent post writes,
This is a perfect example of why people claim professors are out of touch with reality. When someone can accurately but facilely summarize your suggestion with "he wants to change the law so that adults should be allowed to have sex with high school sophomores," you lose. No further inquiry, no appeal, no nothing: you're automatically some lunatic that thinks something approaching pedophilia is OK.
Some curious thoughts are best kept to one's self....
I've heard this reaction before, not just as to discussions of the age of consent but also as to other matters. Other commenters seem to say something similar, some even calling — with no substantive reasons — for me to take down the post, with no real explanation). And it strikes me as worth discussing this attitude in more detail, because it does reflect something important about the academic approach, an approach that, contrary to the commenter's view, strikes me as exactly right.
Here's what I see as the academic credo, or at least the right sort of academic credo: It is better to know than to believe. It is better to understand why rather than just accept the what. Much of the time (though certainly not all the time), the things that we think are obviously and clearly "reality" are actually not. Even when our intuitions are right, we gain much from understanding why they are right. So curious thoughts about why our assumptions are right — and whether they are right — are indeed precisely what people (especially professors) should be thinking and expressing.
Let's use this very post as an illustration.
1. To begin with, let's talk briefly about the "reality" with which I'm supposedly out of touch. Recall that my post chiefly discussed 16-year-olds having sex with 30-year-olds, which many states prohibit. But the reality is that over half the states do not prohibit this behavior, but have a general age of consent of 16 (that is to say, the age of consent for sex with adults, rather than just with fellow children, setting aside the special case of sex with adults who are in a special position of authority, such as family members or teachers). In most of Western Europe, the general age of consent is likewise 16 or less. There'd be no need to "change the law" to allow this in most places; one would need to change the law to forbid it.
Now maybe this judgment of most of the U.S. and of Europe is wrong, and that they are themselves "out of touch with reality," whatever exactly that means. I certainly don't want to argue that the majority view is always right. But it does suggest that we can't lightly assume that accepting a general age of consent of 16, under which sex between 16-year-olds and 30-year-olds (or 60-year-olds) is legal, is "luna[cy]."
But wait, there's more: In France, the general age of consent is 15. In Austria, Germany, and Italy it's, generally speaking, 14. In Spain it's 13. In several U.S. states, it was 14 until a decade or two ago; in Canada it is 14, though a recent law changes it to 16 as of May 1, 2008. Again, these decisions may well be wrong or even "creepy" (a term three other commenters used to discuss my post, which chiefly focused on 16-year-olds). Yet when nearly 200 million members of our Western culture live in countries where the age of consent is 14 or less, this should lead us to think that there's an important discussion to be had here, and that the answer is at least not open and shut.
More broadly, by the way, this is indeed a familiar practice of professors: To point out that our intuitive assumptions — however firmly held — are actually not shared by many other people, including in places that aren't very different from our own, and to suggest that this might shake our faith in those assumptions (though again of course it's not proof that the assumptions are false). And I think it's a sound practice, one that should be taken seriously as an advantage to thinking through our beliefs rather than just casually accepting them.
2. More broadly, professors — and many non-professors — know well how many deeply held assumptions about "reality," assumptions that didn't seem to require "further inquiry," proved to be quite wrong. That's most obvious with regard to the physical and life sciences, but it's also true about economics and morality.
Focusing on morality, consider how deeply attitudes have changed over the centuries about such fundamental moral questions as slavery, the role of women, premarital sex, homosexuality, and even the very issue involved here, which is to say the age of consent. Recall that in England the age of consent until the late 1800s was set at 12.
Again, it may well be that modern law is right about the age of consent (which I stress again, is mostly set at 16 both in the U.S. and in Western countries more broadly, not at 18) and the views of the past were wrong. I'm pretty sure that they were wrong as to age 12, and 16 might well be a sensible dividing line. Yet what do you think are the chances that, however wrong we now recognize many past moral views were, our deeply held intuitive moral assumptions today are all completely right? Shouldn't that plant at least a seed of self-doubt? The "professors" who "are out of touch with reality" believe (at least when they're at their best) that public questioning in such matters is better than undefended confidence, or silence.
3. Finally, let's say that the commenter's substantive intuition — that sex between adults and high school sophomores (the 16-year-olds that I discussed in my post) — is right, and the dominant view of American and Western law is mistaken. Surely it's still better to publicly discuss what the reasons for this might be, and why they are right.
(a) Most obviously, it's necessary to persuade the "lunatic[s]" who support the legality of "something approaching pedophilia" yet somehow managed to make their views made into law in most American states and most European countries. I take it that just calling them lunatics and urging them to keep their views to themselves won't persuade them, right? It would help to have a detailed explanation.
(b) It should also be helpful to reassure thoughtful and responsible backers of higher ages of consent. If someone is being sent to prison based on a law you advocate, I'd think you'd want to have some confidence that you're right. And it's hard to have that confidence in any thoughtful way, it seems to me, if you've just shushed those who take a contrary view, as opposed to engaging it (even welcoming its airing) and explaining why it's mistaken.
(c) It's also necessary to deal with all the important details related to implementing the law. Say that allowing adults to have sex with 16-year-olds is indeed wrong. Should the age of consent then be 18? Or 17? Or 17 1/2? If there is to be an exception for sex between people who are close in age, how much should the allowed difference be? If an act is criminal, how much resources should we devote to prosecuting it? How willing should prosecutors be to accept pleas to reduced charges? What should the prison sentences and other punishments be for committing the act? It's impossible to sensibly answer these questions without thinking hard about exactly why we're setting the age of consent at a particular point.
So, my bottom line: Asking these questions, and questioning our intuitions, is more in touch with reality — including the reality that our intuitions are often (though of course not always) wrong — than just taking our assumptions for granted. And when we professors ask for logical arguments even in support of that which many people see as obvious, it seems to me that we are doing exactly what our jobs call for.
UPDATE: I originally said that the age of consent in Canada was 14 until recently; as the revised text, makes it clear, it's actually 14 for a few more days. Thanks to Canadian prosecutor Andrew Barg for setting me straight on this -- always good to get even a little closer to "reality." Related Posts (on one page): - The Academic Credo
- Age of Consent:
Ages of Consent for Various Purposes:
A commenter writes, "Abortion rights advocates declare any [pregnant] female is mature enough to obtain an abortion without parental consent. That means girls are mature enough to make [decisions] in picking sex partners."
I don't think this works. Judgments about age cutoffs for various behavior (driving, sex, smoking, alcohol consumption, abortion, other medical procedures, contracting) rightly turn on a variety of factors, including the cost of prohibiting the behavior as well as the cost of immature behavior. We let people drive before we let them drink because not being able to drive imposes a much greater burden on older teenagers (and on their parents and prospective employers and educators) than does not being able to drink. Likewise, stopping a girl from having an abortion could harm her future life much more than stopping a girl from having sex would.
Now of course one could argue that letting girls have abortions without parental consent harms their future lives, too, or that it violates their parents' rights or whatever else. My point is simply that one can't just assume that the age cutoffs for the decision to have an abortion must be the same as the age cutoffs for sex, drinking, smoking, driving, or contracting. It's true that the age cutoffs for all of these do have to do with our judgment about maturity — but they also have to do with other matters that may justify different age cutoffs for different behaviors.
(Note that the current federal constitutional rule is that state law may require underage girls to get parental consent for abortion, though it must provide the option of a judicial bypass on the grounds that "the young woman is mature and capable of giving informed consent and has, in fact, given her informed consent" or "that an abortion would be in her best interests." But some state constitutional rules give broader abortion rights to underage girls, and, as the commenter suggests, some abortion rights advocates do support such broad rights for girls.)
Age of Consent:
Many states have lower ages of consent for sex among minors than for sex between adults and minors. Thus, two 16-year-olds having sex may be legal, but not a 30-year-old having sex with a 16-year-old.
I share the intuition behind this distinction, but I wonder whether my intuition is right. For instance, I would think that quite a few 16-year-old girls who are interested in sex would rather be involved with 30-year-old men than with other 16-year-olds; the 30-year-olds are more likely to know what they're doing both sexually and romantically, plus are more likely to be much more emotionally mature as well as interesting to talk to. What's more, to the extent that women are said to be attracted in some measure to success (not just financial but professional and social), the 30-year-old may be much more attractive to them. Plus if a serious relationship ensues, the 30-year-old might be a better influence on the 16-year-old than another 16-year-old would be.
Ah, one might say, but perhaps the 30-year-olds are more likely to be sexually exploitive of the 16-year-olds, whatever "sexually exploitive" might mean. But why should we be so confident of that? Sixteen-year-old boys can be as interested as 30-year-olds in sexual conquests for the sake of sexual conquest, and can be as willing and able to lie and manipulate to get what they want. I suppose they might be less good at the lying and manipulating, for the same reason that they can be less good at some of the things the 16-year-old girl may want (being courted in a romantically appealing way). But I doubt that they're entirely unable to lie and manipulate -- and they may feel even more pressure to do so, because they may be more hormonally charged, sexually desperate, and desperate to prove their adulthood and manliness by getting sex or by racking up partners.
Of course, 16-year-olds are more likely to be thrown together with other 16-year-olds in social contexts, and are thus more likely to "naturally" become interested in each other. Perhaps then the rationale is simply that you can't stop such sex without prosecuting millions of people, while you can stop adult-adolescent sex, which might be more likely to be more common. But the effect of the law is still to channel some 16-year-old girls away from sex with adults and into sex with other teenagers. That would make sense, I think, only if we think that sex with teenagers is better for them than sex with adults would be. But why is that so?
Query, also, whether the analysis should be different when we get to 14-year-olds or 15-year-olds, but please set aside for purposes of the analysis flat rules that categorically forbid sex between anyone and someone under a certain age. Those rules are easy enough to explain, as being based on concern about (say) a 15-year-old not being mature enough to make a decision that can be so emotionally and physically dangerous. The tougher question is why the 15-year-old should be allowed to make such a decision when the partner is another 15-year-old as opposed to a 25-year-old. (Note that I'm talking about sex between adult men and adolescent girls; one can ask similar questions with the sexes reversed, and as to gay and lesbian sex as well. But my sense is that the bulk of the sexual conduct that is actually punished or deterred by these laws is between adult men and adolescent girls, so I thought I'd focus on that.)
Now perhaps my skepticism here is unjustified. I wouldn't mind being persuaded that it is unjustified, since as I said I find the distinction between "Romeo and Juliet" sex (the laws allowing sex between minors who are close together in age are often called "Romeo and Juliet" laws) and adult/teenager sex appealing -- though look what happened to Romeo and Juliet. I just wonder whether we can be confident enough in this distinction.
And, just to stave off the speculation, I've never dated a minor while I've been an adult, and have never wanted to date one. Among other things, I've generally found adult women considerably more attractive and interesting than underage ones (much as I suspect that some many adolescent girls would find adult men considerably more attractive and interesting than underage ones). Related Posts (on one page): - The Academic Credo
- Age of Consent:
"Put Down the Thesaurus and Step Away from the Opinion":
South Carolina Appellate Law Blog's reaction to this line:
The cognoscenti of health care nomology trust and rely upon Peer Review Statutes as the quiddity and hypostasis of the hospital/physician relationship. The quintessence and elixir of the peer review process is confidentiality.
A Low Grade for the Man in the High Castle:
Amber Taylor gives a thumbs down to Philip K. Dick's classic science fiction/alternate history novel, The Man in the High Castle, which is set in a world where the Axis won World War II and the US has been conquered and divided between Germany and Japan. I tend to agree. Dick's book is high on my list of most overrated genre classics of all time.
The idea of an Axis victory alternate history was somewhat more original back in 1962 (when the book was written) then it would be today. But Dick's execution was flawed in many, many ways. The characters are implausible, the alternate history scenario even more so. It is just barely possible to imagine the Axis winning World War II despite the many advantages of the Allies. It is utterly implausible to imagine them being able to conquer and occupy the entire US by 1947. Dick's benign portrayal of the Japanese occupation is belied by the horrendous record of the actual Japanese empire of the 1940s. And all the references to the I Ching quickly become annoying without (as far as I can tell) making any genuinely interesting points or advancing the plot.
For a much better Germany-wins-WWII alternate history novel, see Robert Harris' Fatherland.
Thursday, April 24, 2008
Virginia v. Moore and the Changing Role of the Fourth Amendment:
In this post, I want to argue that yesterday's decision in Virginia v. Moore hides a fascinating clash: a clash between the mindset and assumptions of the pre-incorporation Fourth Amendment and the mindset and assumptions of the post-incorporation Fourth Amendment we have today. My claim is that the basic assumptions of the post-incorporation Fourth Amendment are now so deeply engrained in the Justices' consciousness that they didn't appreciate how their decision was inconsistent with pre-incorporation Fourth Amendment history. This doesn't mean that Moore was wrongly decided: The majority's rule is a sensible one for the modern incorporated Fourth Amendment. But there's a fascinating historical tale to be told about the nature of constitutional change that I think the opinions in Moore have missed. Or so I will argue; I'm not completely sure I'm right, but if not I would be very interested in knowing where my analysis goes off course. First, some background. As originally enacted, the Fourth Amendment only applied to the federal government and not the states. Most states had their own rough equivalents to the Fourth Amendment in their state constitutions, but the federal Fourth Amendment only applied to federal agents. At the same time, federal law enforcement was almost completely unknown until the Prohibition era in the 1920s, meaning that for the first 130 years or so of American history the Fourth Amendment was on the books but was rarely invoked and its meaning was largely unknown. That picture changed dramatically in two cases, Wolf v. Colorado, 338 U.S. 25 (1949) and Mapp v. Ohio, 367 U.S. 643 (1961). Wolf held that the Fourth Amendment applied to the states but that the suppression remedy did not; Mapp overruled that latter part of Wolf and held that the Fourth Amendment and its exclusionary rule applied fully to the conduct of state actors. The doctrine Wolf and Mapp invoked to get there is generally known as the incorporation doctrine; the idea was that the Court interpreted the Due Process Clause of the 14th Amendment (which did apply to the states) as implicitly incorporating the Bill of Rights protections that had applied before only to the federal government. There's a long historical debate as to how persuasive this was as a reading of the Fourteenth Amendment, but the effect of the incorporation doctrine is clear: After incorporation, the rules that before had only applied to the federal government now also applied to state officers. For the Fourth Amendment, this was truly revolutionary: Suddenly the U.S. Supreme Court in Washington, DC, placed itself in charge of creating uniform rules to regulate every police officer in the United States. Plus, state and local police officers did lots of things that federal agents rarely did, like "walk the beat" and the like, so suddenly the Supreme Court had to decide a lot of issues involving day-to-day police powers that had never been addressed as a matter of constitutional law. This takes us to the powers to make arrest and search incident to the arrest that was at issue in Moore. Today, the rules for such things are well-settled: Under the Fourth Amendment, arrests require probable cause and the power to arrest permits a search incident to a lawful arrest. Obviously so, it seems to us: It's Crim Pro 101. But if you look back at the history of the Fourth Amendment, those rules end up being of surprisingly recent vintage. Indeed, at the time of incorporation, the constitutional threshholds for arrest and searches incident to arrest were largely unknown. If I'm not mistaken, the Supreme Court didn't settle that probable cause provided the Fourth Amendment standard for a warrantless arrest until 1959, in Henry v. United States, 361 U.S. 98 (1959) (although it had arguably hinted at this in 1949 in the Brinegar case). Until then, various formulations of the common law standard existed that states had mostly adopted, but state standards didn't matter because the Fourth Amendment didn't apply to the states. Further, Congress didn't enact a comprehensive statute on what the legal standard for a federal warrantless arrest might be until 1956. See Public Law 728, § 104, 70 Stat. 570, July 18, 1956. For most of American history there were few federal warrantless arrests, so legislating a federal warrantless arrest standard just wasn't a major issue. As the Supreme Court summarized the federal law of arrest in 1948, "it appears that the federal legislative materials are meager, inconsistent and inconclusive." Until United States v. Di Re, 332 U.S. 581 (1948), that is. I've already offered a very detailed explanation of Di Re, so let me just touch on the key point unexplored in the earlier post: What makes Di Re a difficult case to understand today is that the Court was applying the "search incident to a lawful arrest" doctrine at a time when there was no Fourth Amendment law at all on what made an arrest "lawful." Indeed, there wasn't yet a federal statute, either; that came eight years later. So the Supreme Court was trying to figure out what made an arrest "lawful" in the absence of preexisting constitutional or federal statutory law on arrests!
What may make Di Re so puzzling to modern judicial ears is that it's hard for today's Justices to imagine the state of the law back then. Consider how Justice Scalia dealt with Di Re in his majority opinion in Virginia v. Moore yesterday: Some decisions earlier than these excluded evidence obtained in violation of state law, but those decisions rested on our supervisory power over the federal courts, rather than the Constitution. In Di Re, 332 U. S. 581, federal and state officers collaborated in an investigation that led to an arrest for a federal crime. The Government argued that the legality of an arrest for a federal offense was a matter of federal law. Id., at 589. We concluded, however, that since Congress had provided that arrests with warrants must be made in accordance with state law, the legality of arrests without warrants should also be judged according to state-law standards. Id., at 589–590. This was plainly not a rule we derived from the Constitution, however, because we repeatedly invited Congress to change it by statute—saying that state law governs the validity of a warrantless arrest “in [the] absence of an applicable federal statute,” id., at 589, and that the Di Re rule applies “except in those cases where Congress has enacted a federal rule,” id., at 589–590. Justice Ginsburg echoes the point in her concurrence, where she states: The Di Re opinion, I recognize, is somewhat difficult to parse. Allied to Di Re’s Fourth Amendment instruction, the Court announced a choice-of-law rule not derived from the Constitution: When a state officer makes a warrantless arrest for a federal crime, federal arrest law governs the legality of the arrest; but absent a federal statute in point, “the law of the state where an arrest without warrant takes place determines its validity.” Id., at 588–589. What's going on? For Justices Scalia and Ginsburg, writing in 2008, the notion that Congress could change the rule must have meant that the rule wasn't based in the Constitution: After all, the Supreme Court defines the law of arrest, not legislatures. But this wasn't true in 1948, when Di Re was decided. In 1948, the only "law of arrest" out there was state law! Understood in historical context, Di Re is obviously a Fourth Amendment case. Its discussion of Congress's possible role makes perfect sense: The Court determined the lawfulness of the arrest based on the only source of arrest law that existed at the time. The Court then pointed out that if Congress wanted to act and create a second body of arrest law, this one expressly regulating federal arrests by statute, then of course it could do so — and then that body of law would regulate federal arrests and thus searches incident to lawful arrests. At a time before the constitutionalization of arrest law, this wasn't understood as a supervisory powers issue: Rather, it was just making the obvious point that if statutes govern something and there is no statute, a statute would govern if Congress enacted one. I tend to think that this history explains why the Justices today didn't understand Di Re: Di Re was written before the Supreme Court constitutionalized arrest law, and the assumption that arrest law is constitutional law has become so deeply embedded that it's hard to imagine an alternative. (I'm not immune from this bias myself, as only now do I completely understand the SG's supplemental memo that I blogged about in my earlier post. The memo wasn't a "hail mary" pass, as I had thought before, but rather was just asking the Court to develop a federal common law of warrantless arrests — a natural alternative in an era before warrantless arrest law was constitutionalized.) Equally importantly, the practical consequences of the Di Re case shifted dramatically with the incorporation doctrine and the constitutionalization of arrest law. To the Justices deciding Di Re in 1948, they just needed some kind of standard to determine the lawfulness of arrests; arrest law was statutory, and only the search incident to arrest doctrine was a matter of constitutional law. And the standard only mattered for federal arrests anyway, which could be made uniform with a federal statute. So it was quite sensible to decide Di Re as they did. But the incorporation doctrine radically changes that. If the "search incident to a lawful arrest" doctrine is keyed to the statutory law of arrest, as it was by default in Di Re, then the incorporation doctrine means that for the first time, the federal constitutional standard for searches incident to arrest would hinge — in a way not correctable by Congress — on quirky variations in state law. Further, following the constitutionalization of arrest law, there becomes an alternative way to interpret the word "lawful" in the doctrine known as "search incident to a lawful arrest": the Court can now interpret "lawful" to mean "consistent with constitutional standards," that is, based on probable cause. My sense is that the Justices approached the Moore case and the Di Re precedent in light of modern Fourth Amendment law: the differences between the Fourth Amendment in 1948 and today were sufficiently large that Di Re became unrecognizable and the rule it adopted no longer useful. As I said at the beginning, this doesn't mean that Moore was wrongly decided. It would have been nice if the Court had given Di Re a proper burial: Justice Scalia could have pointed out that times had changed, and what made sense for 1948 no longer makes sense today. (Hmm, maybe Roberts assigns that opinion to someone else instead.) But the Court's history and analysis of the cases that appear in the Moore case strike me as quite unpersuasive, especially the Court's treatment of Di Re.
High School Student Speech and "Be Happy, Not Gay" T-Shirt:
The Seventh Circuit, in Nuxoll v. Indian Prairie School Dist. #204, just held that a student did have the right to wear such a T-shirt. (The student was wearing it in opposition to a pro-gay-rights National Day of Silence.)
The panel majority (Judge Posner joined by Judge Kanne) also opined, though, that under Tinker and Morse v. Frederick, the school would have broad rights to restrict shirts that were sufficiently derogatory of various groups, "if there is reason to think that a particular type of student speech will lead to a decline in students' test scores, an upsurge in truancy, or other symptoms of a sick school — symptoms therefore of substantial disruption." And the panel especially singled out speech that's derogatory to "highly sensitive personal-identity characteristics" as speech that seems especially likely to cause such disruption. The examples the majority gave as (apparently) restrictable were "blacks have lower IQs than whites," "a woman's place is in the home," "homosexuals are going to Hell," and "homophobes are closeted homosexuals"; it's not completely clear where the panel was committing itself to a conclusion that these particular statements would be restrictable, but that seems the likeliest interpretation.
As to "Be Happy, Not Gay," though, the majority concluded:
“Be Happy, Not Gay” is only tepidly negative; “derogatory” or “demeaning” seems too strong a characterization. As one would expect in a school the size of Neuqua Valley High School, there have been incidents of harassment of homosexual students. But it is highly speculative that allowing the plaintiff to wear a T-shirt that says “Be Happy, Not Gay” would have even a slight tendency to provoke such incidents, or for that matter to poison the educational atmosphere. Speculation that it might is, under the ruling precedents, and on the scanty record compiled thus far in the litigation, too thin a reed on which to hang a prohibition of the exercise of a student’s free speech.... The school has failed to justify the ban of that [slogan], though the fuller record that will be compiled in the further proceedings in the case may cast the issue in a different light.
Judge Rovner concurred in the judgment, but argued for a much more speech-protective reading of Tinker and Morse than the majority adopted.
My tentative thoughts on the subject:
1. Though the decision is something of a victory for the student speaker, the panel majority opinion would authorize a great deal of speech restrictions. It's a narrow reading of Tinker rights, and a broad reading of Morse's limit on those rights.
2. I'm not troubled by this decision the way I was about the Ninth Circuit's decision on a similar question in Harper v. Poway Unified School Dist.. The Ninth Circuit panel created an expressly viewpoint-based exception to student free speech rights, based on a supposed "right" of "minority" students to be free from "derogatory and injurious remarks directed at [their] minority status such as race, religion, and sexual orientation." The Seventh Circuit expressly rejected this, holding that "people do not have a legal right to prevent criticism of their beliefs or for that matter their way of life." Instead, the Seventh Circuit focused on more traditionally recognized, and facially viewpoint-neutral, concerns about the disruption of the educational process.
3. I also think the concern about disruption of the educational process is quite serious. The public school authorities' job is to educate students, and it's harder to educate students who are distracted, upset, unhappy to be at school, even when they're not actually fighting or dropping out.
4. At the same time, the distinctions the majority opinion draws, and the disagreement between it and the concurrence about how to interpret Tinker and Morse, suggest that the existing doctrine — focused though it is on protecting free speech so long as it doesn't tend to be disruptive — doesn't do a great job of either protecting free speech or preventing disruption. Though the majority's rhetoric seems to nod in the direction of viewpoint neutrality, and though the majority's test is itself facially viewpoint-neutral (in a way the Harper majority's wasn't), the majority would tolerate a wide range of broad, vague, and viewpoint-based restrictions on student speech. At the same time, its approach calls for a case-by-case and hard to predict evaluation of just when speech is likely to be disruptive, an approach that is likely to constrain schools from barring some speech that genuinely is disruptive.
Maybe I'm asking for too much clarity or predictability in what is necessarily going to be a mushy endeavor. But I do think this area of free speech law is especially unclear and unpredictable.
5. Finally, I can just see Justice Thomas, his spiritual sometimes-brother Justice Hugo Black, and, of all people, Stanley Fish, saying "I told you so." Here the Seventh and the Ninth Circuits take very different views of very similar questions; the judges on the Seventh Circuit panel, both purporting to apply the Tinker and Morse tests — or perhaps non-tests? — taking very different view of the same question; and the judges in the majority tentatively allowing some anti-gay speech but not other anti-gay speech without much of a clear explanation of just where the line between the "tepidly negative" and, I suppose, "hotly negative" is drawn. Maybe, they'd say, the best bet is to leave speech in government-run K-12 schools almost entirely to school authorities, rather than muddling through this way. I'm not sure Thomas, Black, and Fish are right on this, but I'm not sure they're wrong, either.
Dartmouth Alumni Association Leadership Elections:
Elections for the Executive Committee of the Dartmouth Association of Alumni begins next Monday April 28. General information is here. Under the 1891 Agreement the AoA has had authority to select nominees for Alumni Trustee positions on the Dartmouth Board of Trustees.
This year the stakes in the election are clear and straightforward. The election is essentially a referendum on the Dartmouth Board of Trustee's board-packing plan that was announced last fall. Subsequent litigation initiated by the leadership of the Association of Alumni has led to an agreed standstill on the board-packing plan and the new election rules that were imposed on the election of Alumni Trustees under the board's plan.
There are two slates of nominees for AoA Ex Comm positions, one that opposes the board-packing plan and one that supports it.
The group that opposes the board-packing plan is called "Dartmouth Parity." Dartmouth Parity's website is here and a sample ballot is here. This group pledges to continue efforts to overturn the board-packing plan.
The group that supports the board-packing plan and pledges to cease efforts to oppose it is called "Dartmouth Undying." Its website is here.
Interested readers should note that this election is not merely a referendum on whether the Board of Trustees has the power to repudiate the promise of parity in the 1891 Agreement. That is significant, of course, not only because it would ratify this expansion of the Board, but also would open the spigot to the Trustees to expand the Board at will and to further dilute the ratio of Alumni Trustees on the Board.
But in the board-packing plan the Board also claims the power to dictate to the Association of Alumni the rules for election of Alumni Trustees. Thus, although the current plan preserves the principle of contested elections for Alumni Trustees and the availability of nominations by petition, acquiescing on this point would provide the Board with plenary power to snuff out both contested elections and petition nominations in the future.
Thus, for instance, two years ago there was a proposed new alumni constitution that would have dramatically changed the way in which Alumni Trustees were elected (and, incidentally, also would have snuffed out the independence of the Association of Alumni Executive Committee). That proposal was soundly defeated in an alumni referendum. One lesser-recognized element of the board-packing plan is a mandate from the board that the AoA adopt election procedures very similar to those rejected by the alumni in that election. Under this principle the Board implicitly claims the right to dictate election procedures. Had this been in place two years ago then the alumni would have had no right to decide this issue.
Note that the Court in the Alumni Association lawsuit specifically pointed to the responsbility of the AoA to conduct elections as one element of the consideration provided by the AoA under the 1891 Agreement (among other elements of consideration).
Thus, the election is not just a referendum on the particulars of the board-packing plan but also on the underlying principle of whether the Board has absolute authority over the election and representation of alumni on the Board, notwithstanding the 1891 Agreement.
In short, if you are a Dartmouth alum who opposes the board-packing plan or the principles that underlie it, vote for the Dartmouth Parity slate. If you support the board-packing plan and the principles that underlie it, you should vote for the Dartmouth Undying slate. Whatever you do, vote. This is truly an election where the future of Dartmouth depends on it.
One final note--in this context I've been reading a great deal in recent months about the famous Dartmouth College v. Woodward case (the Dartmouth College I case). Interestingly, those such as Daniel Webster who opposed that earlier board-packing plan were roundly criticized at the time as reactionary opponents of progress. Moreover, many thought it frivolous for Webster to contend that the board-packing plan breached a contract in violation of the Contracts Clause. Webster won, of course, as the Supreme Court found that the College charter was a contract that could not be abrogated. Despite contemporary opposition to Webster's litigation, few today would doubt that bringing the case to enforce the contract was appropriate and a pivotal moment for Dartmouth. America is a country animated by the rule of law and when a party legitimately believes its rights to be violated, it is appropriate to ask a neutral judge to decide the matter.
FLDS Update:
The judge has decided to allow infants to remain with their mothers, but otherwise has not modified the order removing all of the children from their homes, despite no individualized showings of child abuse or neglect.
In the previous thread, some commenters seem to assert that the CPS may take all of the FLDS's children away because (a) there has been documented abuse of children at other FLDS communities; and/or (b) the "culture" of the FLDS is inherently abusive, as it encourages early marriage and leaves its children inherently isolated by homeschooling them and not exposing them to social events, television, and the like. The latter criterion, at least, would place Amish and some of the more insular ultra-Orthodox Jewish communities in jeopardy.
As one commenter, otherwise sympathetic to CPS, put it, "the judge should focus on current or past crimes and not the culture - this puts religious belief on trial rather than actual behavior." Relatedly, the focus of CPS, and the judge overseeing the case, should be on individualized evidence of child neglect or abuse. And it remains rather troubling that the CPS apparently had the authority to take 437 kids from their parents after launching an investigation based on an apparently fraudulent complaint of abuse involving a specific, apparently nonexistent, girl.
Wednesday, April 23, 2008
The Fourth Law of Robotics:
The robot's owner shall not weasel out of a binding contractual relationship. OK, wrong science fiction author, but that's what is held by Hanson v. America West Airlines (per illustrious UCLA Law grad Judge Andrew Guilford):
Plaintiff David Hanson ... has lost his head. More specifically, Plaintiff has lost an artistically and scientifically valuable robotic head modeled after famous science fiction author Philip K. Dick (“Head”).... His stories have questioned whether robots can be human (see, e.g., Do Androids Dream of Electric Sheep? (1968)), so it seems appropriate that Plaintiff reincarnated Dick as a robot which included the Head, valued at around $750,000.
Plaintiff lost his Head on one of Defendant’s planes when flying from Texas to San
Francisco with a connection in Las Vegas.... Plaintiff brought the Head onto the plane in a carry-on duffel bag and stored it in the overhead bin. Plaintiff fell asleep during the flight from Texas to Las Vegas, and woke up when the plane arrived in Las Vegas. On waking, Plaintiff immediately left the plane to catch his connecting flight to San Francisco. Perhaps because he had just woken up, Plaintiff lacked the total recall to remember to retrieve the Head from the overhead bin....
Federal common law allows a carrier to limit its liability for lost or damaged goods if the contract limiting liability offers the shipper (1) reasonable notice of the limited liability, and (2) a fair opportunity to buy higher liability. Defendant has satisfied the elements of an enforceable limited liability provision under federal common law....
Philip K. Dick and other science fiction luminaries have often explored whether robots
might eventually evolve to exercise freedom of choice. See, e.g., 2001: A Space Odyssey (a HAL 9000 exercises his freedom of choice to make some bad decisions). But there is no doubt that humans have the freedom of choice to bind themselves in mutually advantageous contractual relationships. When Plaintiff chose to enter the Contract of Carriage with Defendant he agreed, among other things, to limit Defendant’s liability for lost baggage. Failing to show that he is entitled to relief from that agreement, Plaintiff is bound by the terms of that contract, which bars his state law claims.
Plus another cute line: "Defendant may have done everything as promised, only to fall victim to a head
hunting thief or other skullduggery."
Citizen Gives Cop A Parking Ticket:
Here's one from the "man bites dog" department, arising out of Portland, Oregon: An attorney who watched a police officer park illegally in front of a restaurant, then wait around while his meal was prepared, issued the officer a series of citizen-initiated violations.
Eric Bryant said he was sitting at the restaurant March 7 when Officer Chad Stensgaard parked his patrol car next to a no-parking sign and walked inside to wait for his food, the Portland Mercury reported Thursday.
Bryant told the weekly paper that when he asked Stensgaard about his car, the officer asked Bryant, "If someone broke into your house, would you rather have the police be able to park in front of your house or have to park three blocks away and walk there?
Bryant filed a complaint as a private citizen alleging several violations, including illegal parking and illegal operation of an emergency vehicle.
Stensgaard was issued a summons to appear in traffic court in May. The fines could total $540. . . .
Cathe Kent, a spokeswoman for the Portland Police Bureau, said Stensgaard would fight the complaint in court, "as he rightfully should." Lawyers at their best or lawyers at their worst? You decide. UPDATE: Commenter "ShoudBeStudying" brings up an excellent point: I wonder if the cop actually said (or meant to say) something a bit different: "If I had to respond to a robbery call at your house, wouldn't you rather my squad car be right here (in front of the restaurant), where I can hop into it in a matter of seconds, rather than three blocks away?" I'll bet that's right. Keep in mind that all we have is the statement of Bryant, the complainant, who is reporting what he heard.
Journalists' Privilege:
If you're interested in the subject and are in the D.C. area, you might want to check out this panel next Tuesday, April 29, at 12 noon at the Mayflower ($20, lunch included). Click here to register.
The panelists will be Prof. Lillian BeVier (Virginia), Prof. Lee Levine (Levine Sullivan Koch & Schulz and Georgetown), our own coconspirator Erik Jaffe, and Andrew Hruska (King & Spalding); Rachel Brand, former Assistant Attorney General, Office of Legal Policy will moderate. The event is put together by the Free Speech & Election Law practice group of the Federalist Society -- I'm one of the board members of the practice group, and I'm sure the program will be both interesting and balanced. Here's the brief summary from the e-flyer:
A number of high profile court orders in the recent past have demanded reporters divulge confidential sources or face contempt charges. In response, both the House and the Senate have considered versions of a federal "reporters' shield" law to supplement the common law privilege often extended to reporters to keep sources confidential. This topic provokes a number of questions about the role of the press and whether it should be treated more leniently, the issue of who is "press," the proper balance of governmental confidentiality and the "public right to know," and the ability of law enforcement and national security experts to pursue leakers of confidential or classified information.
Is a federal reporters' shield law a good idea? How broadly should it reach? Should it protect professional journalists only or extend to ad hoc writers and bloggers, and if so, where and how is a line to be drawn? Are there other ways to balance reporters' and sources' interests with law enforcement? Is there a better mechanism than contempt to employ?
Supreme Court Hands Down Virginia v. Moore:
Today the Supreme Court handed down Virginia v. Moore, ruling unanimously in favor of Virginia. Justice Scalia wrote the majority opinion; Justice Ginsburg concurred. The gist of Justice Scalia's opinion is that he can't find any authority at all suggesting that the lawfulness of an arrest under state law has ever been relevant to whether an arrest violates the Fourth Amendment. Or perhaps more accurately, he finds himself insufficiently impressed with those cases and authorities that do point in that direction. For example, he gets past United States v. Di Re by saying it was just a case on the federal supervisory power: Some decisions earlier than these excluded evidence obtained in violation of state law, but those decisions rested on our supervisory power over the federal courts, rather than the Constitution. In Di Re, 332 U. S. 581, federal and state officers collaborated in an investigation that led to an arrest for a federal crime. The Government argued that the legality of an arrest for a federal offense was a matter of federal law. Id., at 589. We concluded, however, that since Congress had provided that arrests with warrants must be made in accordance with state law, the legality of arrests without warrants should also be judged according to state-law standards. Id., at 589–590. This was plainly not a rule we derived from the Constitution, however, because we repeatedly invited Congress to change it by statute—saying that state law governs the validity of a warrantless arrest “in [the] absence of an applicable federal statute,” id., at 589, and that the Di Re rule applies “except in those cases where Congress has enacted a federal rule,” id., at 589–590. If you recall my blog post, Why United States v. Di Re Clearly Was Not A Case On The Federal Supervisory Power, you'll realize how bogus this is, but hey, that's govenment work for you. (Scalia adds a nice touch at the end of the case when he characterizes the Court's decision as "reaffirm[ing] against a novel challenge what we have signaled for more than half a century," something that I suspect Justice Jackson might have found a rather puzzling characterization.) Only Justice Ginsburg takes on Justice Scalia's mischaracterization of Di Re in her narrow concurrence; [O]ur decision in United States v. Di Re, 332 U. S. 581, 587–590 (1948), requiring suppression of evidence gained in a search incident to an unlawful arrest, seems to me pinned on the Fourth Amendment and not to our “supervisory power,” ante, at 72[fn2]
[fn2] The Court attributes Di Re’s suppression ruling to our “supervisory power,” not to “a rule we derived from the Constitution.” Ante, at 7. Justice Jackson, author of Di Re, however, did not mention “supervisory power,” placed the decision in a Fourth Amendment context, see 332 U. S., at 585, and ended with a reminder that “our Constitution [places] obstacles in the way of a too permeating police surveillance,” id., at 595. The Di Re opinion, I recognize, is somewhat difficult to parse. Allied to Di Re’s Fourth Amendment instruction, the Court announced a choice-of-law rule not derived from the Constitution: When a state officer makes a warrantless arrest for a federal crime, federal arrest law governs the legality of the arrest; but absent a federal statute in point, “the law of the state where an arrest without warrant takes place determines its validity.” Id., at 588–589. I don't think Justice Jackson saw that as a choice-of-law rule not derived from the Constitution; In 1948, back before the incorporation of the Fourth Amendment, the only agents regulated by the Fourth Amendment were federal agents. At the time, such a rule would have seemed a plausible way to determine the lawfulness of the arrest, which he, Learned Hand, and the rest had understood as resting on statutory arrest law. But maybe you have to be more of a Fourth Amendment geek than any Supreme Court Justice would be to see that. And in any event, kudos to Justice Ginsburg for at least raising the Di Re issue. I plan to blog more on Moore in the future, time-permitting. Stay tuned.
Child Abuse in the Name of Protecting Children:
Two snippets from the FLDS "child protection" case in Texas, in which 437 children have been forcibly removed from parental care while the state investigations allegations that adolescent girls were sexually abused by being coerced or "brainwashed" into "marriages" (religiously but not legally recognized) with much older men. (The raid was apparently prompted by a bogus call to CPS):
(1) "Children under 12 months will be placed in foster homes with siblings who are under 5, she said, and every attempt will be made to place [other] siblings together. Boys 8 and older are going to Cal Farley's Boys Ranch northwest of Amarillo, where 27 adolescent boys already have been staying."
(2)
The Texas judge overseeing the polygamous FLDS sect's case refused Monday to make any ruling that would allow breast-feeding mothers to remain with their children in state custody....Attorneys for the women asked the judge to consider letting nursing mothers remain with their children after negotiations with CPS on the issue stalled. They asked the judge to let the mothers stay until DNA results are in, likely to take up to 40 days. Walther acknowledged the nutritional and bonding benefits of breast-feeding. "But every day in this country, we have mothers who go back to work after six weeks of maternity leave," she said. "The court has made a determination that the environment those children were in was not safe," said Walther, adding that there is a shortage of suitable placements for infants in Texas.
Yep, having your mom go to work 8 hours a day is just like having no maternal contact at all and being placed in a foster home.
It's time for a nationally prominent civil liberties attorney to get involved.
UPDATE: And, courtesy of a VC commenter, a stinging op-ed from the Dallas Morning News:
Judge Barbara Walther, who is overseeing the YFZ Ranch case, yesterday declared: "The court has ruled the conditions those children were in were not safe for the children. I did not make the facts that got this case into the courts."
Excuse me, Judge? You issued a sweeping, house-to-house search warrant based on a highly questionable anonymous call that turned out to be phony. You refused to allow individual hearings for children, grouping them together like cattle. You accepted the testimony of an expert on "cults" who only learned about FLDS from media accounts, rather than an academic who'd studied them professionally for 18 years.
You've ruled the existence of five girls between 16 and 19 who were pregnant or had children was evidence of systematic abuse, even though in Texas 16-year-olds can marry with parental consent. You've ruled young toddlers are in "immediate" danger because of their parents' beliefs or what might happen 15 years from now, not because anyone abuses them.
Big Day in Philadelphia:
Forget Obama-Clinton. The Philadelphia Flyers beat the Washington Capitals in overtime in Game 7 of their first-round playoff series. This is the first time the Flyers have won a playoff series since 2004 (a long time for Philly fans), and an amazing rebound for a team that had the worst record last season.
Jobs I Would Leave Academia For:
The ever-recurring debate over whether academics are unhappy (discussed in my last post) leads me to ask whether there are jobs I would leave academia for if I could get them. There are a few such jobs. But the nature of this list actually underscores the difficulty of finding a job that would be more fun for me than academia:
I. Supreme Court Justice.
In addition to the power and prestige, Supreme Court justices get to deal with interesting and important cases that they choose themselves. Moreover, they have lots of time to write academic books and articles on the side if they want to (as Justices Breyer and Scalia do, among others). Due to a larger staff and smaller case load than other judges have, the justices have plenty of opportunity to pursue outside interests and commitments. I could even continue to blog about legal and political issues if I wanted to (as several lower court judges, such as Richard Posner do). The big caveat here is that even if I weren't already unconfirmable, I couldn't just leave GMU and become a Supreme Court justice right away. I would have to spend the next 20-30 years wooing the politicians who might appoint me and doing all I can to avoid saying anything that might hurt my confirmation chances. And even then, the chances of getting appointed would be a crapshoot at best. On balance, then, it's not really a preferable job to being an academic once I factor in all the sacrifices involved in getting it.
II. Science Fiction or Fantasy Writer.
If I had the talent for it, I'd love to write sci fi or fantasy novels for a living. However, it would only be worth it if I were good enough to be one of the top writers in the field. The hand to mouth existence and tiny reading audience of the average professional fiction writer is not - for me - preferable to life as even a mediocre academic. Moreover, nothing prevents an academic with tenure from writing sci fi or fantasy novels on the side if he wants to. It sure worked out well for J.R.R. Tolkien and C.S. Lewis, among others.
Note to members of my tenure review committee if you are reading this: No I don't plan to actually do this myself I get tenure, if only because of my dismal lack of literary talent. Trust me!
III. Owner of the Boston Red Sox.
I would love to have the opportunity to implement Moneyball principles even more thoroughly than the current, relatively enlightened, Red Sox owners have done. I do have some doubt about whether I have the political and interpersonal skills to manage a large enterprise such as a major league team. But I'm pretty sure I couldn't offend nearly as many people as George Steinbrenner and his sons have done in their time as New York Yankees owners.
Although it's tempting, I probably wouldn't leave academia to be a professional athlete myself - even if I had the physical talent for it. I don't think I could deal with the constant physical pain, and I also don't want to be washed up by the time I'm forty.
Bottom line: Unless some of you generous VC readers want to give me the $816 million or so that it would take to buy the Red Sox, I think I'm going to stay in academia.
UPDATE: I should note that this is a list of jobs that I think would actually be more fun for me than academia. I'm not considering jobs which would be less fun, but that I might take because I could perhaps make more a contribution to the public interest there.
UPDATE #2: To avoid assorted comments on this point, I'm not claiming above that I'm actually qualified right now to be a Supreme Court justice. I think I might have the technical legal knowledge for the job. But I probably don't have the necessary political skills.
Are Academics Unhappy about their Jobs?
Megan McArdle lists several possible reasons why academics are unhappy relative to members of other professions. Some of her reasons capture real downsides of academic life. But is the premise true? Are academics indeed unusually dissatisfied with their jobs? I think not.
Back in December, I wrote a series of posts challenging this premise in the specific case of law professors. The available evidence suggests that law professors are much happier with their jobs, on average, than other elite law school graduates - including those who went into "public service" and other jobs commonly associated with lifestyle benefits.
A particularly telling point is that, in most academic fields, there are far more applicants for jobs than available job openings. Indeed, the ratio of highly qualified applicants to available jobs is more lopsided in academia than any other industry I know of other than entertainment, art, and professional sports. That suggests that being a professor isn't a less satisfying life than most of the available alternatives. Perhaps the applicants are deluded, and don't realize that they would be happier working in industry or government. Maybe. But people who are already academics rarely leave academia for other careers - even those in fields like business, medicine, law, and economics who could easily obtain far more lucrative employment in the commercial sector.
As I noted above, some of the issues Megan notes are real causes of dissatisfaction among academics. For example, it is true that professors are highly status-conscious, that they make less money than they could in other fields, and that they often don't get to live in the cities they prefer. But offsetting these problems are major advantages such as 1) the opportunity to work on issues that interest you, as opposed to those that interest customers or the boss, 2) the ability to set your own schedule to a far greater extent than is possible in nearly any other professional job, and 3) the chance to influence public debate. Academics tend to be the kinds of people who care greatly about 1 and 2, and many care a lot about 3 as well. Indeed, the very fact that so many people compete for academic jobs despite the fact that they know they could make much more money elsewhere suggests that there are important benefits associated with those jobs. Those who don't find the tradeoff worth it are unlikely to enter academia in the first place or to stay very long if they do.
Not everyone would be happy as an academic. Indeed, the vast majority of people would probably hate it. But most academics and seekers of academic jobs would probably be a lot more unhappy in any other line of work.
UPDATE: I initially failed to link to Megan's post. This has now been corrected.
Tuesday, April 22, 2008
Al Qaeda Objects to 9/11 Conspiracy Theorists:
So do you think it might give pause to 9/11 conspiracy theorists that Al Qaeda has now criticized Iran for spreading 9/11 conspiracy theories in an alleged effort to deny Al Qaeda the credit it believes it is due for the 9/11 attacks? Hmm, no, I guess not.
Interesting Pa. Exit Poll Datum:
9% of the voters in the Pennsylvania primary were African Americans who said race was not a factor in their vote. Of those 9%, 91% voted for Barack Obama, exactly the same as the overall African American percentage for Obama, including the 4+% who said race was a factor in their vote (the poll doesn't give a breakdown of the exact percentages for the latter group, but it can't be very different than 91-9).
By contrast, both men and women (especially women) who said that "gender" was a factor in their vote were significantly more likely to vote for Clinton. And whites who said race was a factor in their vote were significantly more likely to vote for Clinton.
Bar Passage Rates and Top Law Schools:
John Donahue's blog post on the Yale Effect paper has a lot of interesting claims, some of which seem sound and some of which I'm less sure of, but I was struck in particular by this claim: My colleague Roberta Romano notes that Barondes speculates that Yale law clerks may know less legal doctrine because of the school’s famous emphasis on theory. But Romano points out that bar review passage rates would at least give a sense of whether Yale Law students are deficient in acquiring knowledge of legal doctrine. To test this I thought one might look at July 2007 bar passage rates by school for the single largest state. As it turns out, across all non-California law schools with at least 15 applicants, Yale had the highest bar passage rate (94.1 percent). California bar exam takers from the University of Chicago and Harvard did quite well, but their passage rates of 86 and 87 percent were clearly lower than that of Yale students. Yale law graduates are looking better all the time! Interesting point, although I doubt bar passage rates for Yale, Harvard, and Stanford have much to do with what law students actually learn at Yale, Harvard, and Stanford. In my experience, passing the bar is mostly a matter of how seriously students take their BarBri lectures [UPDATE: Or whatever lectures or books students use] to learn the fantasy world of law that exists only on the bar exam. For better or worse, the overlap between what students learn in school and what is on the bar exam is relatively narrow. As a result, bar exam passage rates don't shed much light on how much law students learn in school. UPDATE: I should take this opportunity to link to the world's greatest BarBri parody video. Hilarious.
Yale Lawprof John Donohue Responds About the Supposed "Yale Clerk Effect":
A long and interesting post at Balkinization.
Underwear Patents:
When I teach Intellectual Property, I always have a lot of fun with the important early patent case of Egbert v. Lippmann (104 US 333(1881)). In Egbert, the inventor of a new kind of corset-spring gave one of them to his then-girlfriend (who later became his wife) for use in her corset -- and the Supreme Court held that his patent was barred because this constituted a "public use" of the new spring design.
It's a very neat case -- aside from allowing a good discussion of the contours of the "public use" doctrine in patent law (as the dissent puts it, "if this is a 'public' use, then I cannot imagine what would not be"), there are all sorts of opportunities for good jokes; the Court opinion itself has the best double entendre in Supreme Court history (where the Court notes that the inventor "slept on his rights for eleven years"). I've even written a pretty decent song about the case (from the point of view of some guy trying to, um, convince Ms. Barnes to take off her corset and show him her springs . . .).
In any event, that's my excuse for noting this |