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Saturday, June 7, 2008

"Hate Speech":

I often hear people arguing that some speech is unprotected under current First Amendment law because it's "hate speech," or asking "Is [X] free speech or is it hate speech?" That, it seems to me, is a mistake.

"Hate speech" is not a legal term of art under U.S. law, nor an exception from First Amendment protection. Some of what some label "hate speech" may, depending on the circumstances, fall within the generally quite narrow exceptions for fighting words, threats, incitement, or certain kinds of false statements of fact. But if one thinks a particular scenario or incident is unprotected on those grounds, one needs to mention the specific exception, and explain how the speech fits within that exception.

Of course, one could argue (though that's not what the people I'm referring to above are doing) that the Supreme Court should create a new "hate speech" exception from First Amendment protection -- that the speech is currently protected, but ought to become unprotected. But then one needs to explain precisely how one would define this new exception, since "hate speech" doesn't have a clear and well-accepted definition. And of course one should then respond to the foreseeable arguments about why this exception would be unacceptably vague or broad.

Simply asserting that some speech is unprotected under current First Amendment law because it's "hate speech" doesn't demonstrate much of anything -- except that it demonstrates to those readers who are familiar with First Amendment law that the speaker isn't making a sound First Amendment argument.

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Judicial Confirmations By the Numbers:

A commenter to an earlier post wondered whether the relatively low rate of Senate confirmation of Bush appellate nominations in the past two years can be explained, in part, because Bush nominees were confirmed more rapidly (in comparison to prior administrations) earlier in his term. The short answer is "no."

For comprehensive statistics on judicial confirmations from 1977 through February 2004, one can consult this CRS report. For judicial confirmations since then, one can look at the website of the Office of Legal Policy, which has data on confirmations during the 108th and 109th Congresses. For the current Congress, one can consult the data maintained by the Administrative Office of the U.S. Courts here.

Consulting these sources, here is what one finds. President Carter had 56 appellate nominees confirmed. President Reagan had 83 appellate nominees confirmed over two terms (for an average of 41.5/term). President Bush (41) had 42 confirmed. President Clinton had 65 confirmed (an average of 32.5 term). President Bush (43) had 35 confirmed during his first term, and has had 24 confirmed since, for a total of 59. This data shows a clear, and fairly consistent, downward trend over the past thirty years.

One also sees a downward trend in the confirmation percentage of appellate appointees. These figures from the CRS reports are as follows: Carter - 91.8%; Reagan - 81.4%; Bush(41) - 77.8%; Clinton: 56.5%.

The confirmation percentage for President Bush's first term through 12/9/2003 was a measly 32.3%. Since then, it has improved. By my calculation, the confirmation rate for appellate nominees during Bush's first term was a respectable 67% and it has been 56% thus far in his second term, for an overall average of 62%. One factor that aided this percentage was the "Gang of 14" deal, that set aside the filibuster of several Bush nominees. The other was the slow rate at which the Bush Administration has made appellate appointments. In any event, it is worth noting that while President Bush has seen fewer appellate nominees confirmed to the bench than his predecessors, the percentage of his appellate nominees confirmed is slightly higher than that of President Clinton.

For my part, I would like to see more of President Bush's nominees confirmed, particularly Peter Keisler (D.C. Circuit), Robert Conrad (4th Circuit), and Rod Rosenstein (4th Circuit), all of whom are extremely well-qualified nominees deserving of confirmation (and two of whom are actively supported by the Washington Post, which has also called for quick action on Conrad). I would also like to see an end to the downward trend in appellate judicial confirmations and needless obstruction by either party, and I hope that the next occupant of the Oval Office -- whether Obama or McCain -- sees any and all qualified appellate nominees considered and confirmed without undue delay.

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Young Is What's Wrong with the GOP:

The Club for Growth's Pat Toomey explains why his organization is opposing the re-election of Congressman Don Young (R-AK).

Over his 35 years in Congress, Mr. Young made himself into the most powerful Republican on the House Transportation Committee. But instead of using his power to steer Republicans down a principled, conservative track, he helped derail the GOP train in 2006.

Mr. Young spends taxpayer money so wastefully he could make a liberal Democrat blush. As chairman of the Transportation Committee (from 2001 to 2007), Mr. Young was directly responsible for one of the biggest boondoggles of the Republican majority – the 2005 highway bill. With a price tag of $296 billion, the highway bill contained a record 6,371 pork projects. . . .

During his time in Congress, Mr. Young has come to represent the worst of a Republican Party that became too comfortable in power. In 1995, a Republican majority passed a budget that actually cut spending. Today, only 40 Republicans out of 248 GOP senators and representatives have sworn off earmarks, despite overwhelming support for earmark reform among the party's base and the general public.

Just 12 years ago, the Republican Caucus, including Mr. Young, voted for a bill to phase out farm subsidies. Three weeks ago, Mr. Young and many of those same members voted for a farm bill that exemplifies everything the GOP once stood against. Somewhere between then and now, many congressional Republicans abandoned their former commitment to limited government, fiscal discipline and economic freedom.

I wish Toomey luck in unseating Congressman Young.

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Friday, June 6, 2008

Ouch: The market price of a barrel of oil went up $10.75 today, to around $138.
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Virginia is for Those Craving Oyer:

I just ran across this mysterious emotion, er, motion -- "craving oyer" -- in a Virginia case. This sentiment seems over 40 years dead in most places, but in the Old Dominion it's still going strong. The Corpus Juris Secundum explains it (citations omitted):

"Oyer," in the old English practice, meant hearing; the hearing a deed read, which a party sued on a bond, etc., might pray or demand, and it was then "read" to him by the other party .... In modern practice, "oyer" means a copy of a bond or specialty sued on, given to the opposite party, in lieu of the old practice of reading it.

Oyer is the counterpart of profert. In the time of oral pleading, "to crave oyer" meant demanding to hear a reading of the instrument of which profert was made; but since the days of written pleading it has meant demanding to have a copy, that the party craving oyer, may, if necessary, spread on the record, to enable him or her to make a defense....

Under statutes, the archaic ceremony of craving oyer is unknown; oyer is superseded by a statute with respect to the production of papers or books for inspection.

Anyone with pictures of a craving oyer ceremony -- or videos of its reënactment -- is encouraged to post them in the comments.

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Vaclav Havel:

Bruce Bawer has a fascinating essay on the life and achievements of Vaclav Havel. For those who may not know, Havel was a playwright who gave up a potential life of privilege as a government-sponsored writer to become a leader of the dissident movement in Communist Czechoslovakia in the 1970s. As a result, he spent years in horrible communist prisons. During that period, he also wrote The Power of the Powerless, in my view the best of all books on life in a totalitarian state.

After the fall of communism in his country in 1989 (thanks in part to the efforts of the dissident movement he helped lead), Havel became the first president of the new democratic Czechoslovakia.

As a general rule, I'm not a big believer in heroes. Many of the people held up as such actually do more harm than good. However, if any currently living person deserves to be admired as a genuine hero who really did make the world better through his courageous acts, Havel does.

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Is It Ethical for the Sentencing Judge to Perform a Marriage Service for the Defendant?

Over at Doug Berman's sentencing blog, there is this interesting discussion about whether asking the sentencing judge to perform a wedding service could be a sneaky sentencing ploy.

Berman quotes a Washington Post article as follows:

A former State Department officer has a proposal for U.S. District Judge Gerald Bruce Lee: Before the judge sentences him on child pornography charges, he wants Lee to perform his wedding ceremony. Lee is considering the highly unusual request, under which Gons Gutierrez Nachman, 42, would tie the knot with his 21-year-old Brazilian fiancee in the same Alexandria federal courtroom where he admitted having sex with three underage girls while posted overseas.

Prosecutors are not forever holding their peace. "The government objects," they wrote the judge Wednesday. "The defendant's request, in the government's view, attempts to shift the focus away from the very serious criminal offenses for which he will be sentenced."...

Legal ethicists said the judge should have strenuously objected. "It would show very poor judgment for the court to perform this ceremony or even to entertain the possibility," said Stephen Gillers, a law professor at New York University. "He should have shot this down as soon as they asked. He's not there to perform weddings; he's there to send a man to jail." "I suspect that in 232 years of American history," Gillers added, "it's never happened that a [federal] judge has performed a marriage ceremony for a defendant awaiting sentencing in a serious felony case in his own court."

Professor Gillers is a very well-known legal ethicist. That what makes me reluctant to disclose that, in about 2004, as a federal judge, I performed a wedding service for a young defendant after I sentenced him for being a felon in possession of a firearm. As I recall, I consulted with the prosecution and court security staff to ensure that no one objected. The bride then came to court in her wedding gown, along with family and friends, and I performed the service. The bride and groom then kissed, and the marshals then took the defendant back to begin serving his (roughly) 18 month prison term.

I thought it was important to honor the request for the defendant for the service because I thought it would improve his prospects for rehabilitation if he knew he had lovely wife willing to wait for him. Perhaps it would have seemed like more of a "ploy" if the defendant was facing an extremely long prison terms, as child pornographers typically are.

I think we can leave this issue (like many others) to the sound discretion of trial court judges.

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The McCain Campaign and Article II: Today's New York Times has a story by Charlie Savage suggesting that John McCain has changed his views on the scope of Article II power. It seems like a big story, but when you get into the details, the evidence for a change seems to be surprisingly thin.

  The evidence for the changed position is an e-mail sent to NRO's The Corner by an advisor to the McCain campaign about Senator McCain's position on telecom immunity and FISA legislation. The e-mail is mostly about pending legislation, but it also has two sentences that touch on the Constitution. Here are the two sentences: (1) "[N]ither the Administration nor the telecoms need apologize for actions that most people, except for the ACLU and the trial lawyers, understand were Constitutional and appropriate in the wake of the attacks on September 11, 2001." (2) "John McCain will do everything he can to protect Americans from such threats, including asking the telecoms for appropriate assistance to collect intelligence against foreign threats to the United States as authorized by Article II of the Constitution." The alleged inconsistency is with a statement by McCain in 2007: McCain was asked if he thought the government had Article II to power to trump FISA, and he said no.

  On Wednesday, an Obama campaign spokesman picked up on the e-mails and argued that McCain changed his earlier position. The McCain campaign then denied that McCain's position has changed.

  In the New York Times article, Savage suggests that the Obama campaign is correct that the two sentences from the e-mail really do show a change. But I don't see it. There is a basic difference between saying that monitoring is illegal and that it is unconstitutional: the Constitution is one source of law, but not the only law. Thus, in the case of the NSA surveillance program, my position was that it was illegal but constitutional. Maybe I'm missing something, but it seems like the most natural reading of these two remarks in the e-mail that this is Senator McCain's position, as well. Further, given that the McCain campaign itself denies that the e-mail was designed to suggest a change in direction, isn't it sort of weird to say that it did?

  Savage identifies three people who agree with Savage that the e-mail comments are inconsistent with Senator McCain's earlier position. First, NYU lawprof David Golove is relied on for the position that "while the language used by Mr. McCain in his answers six months ago was imprecise, the recent statement by Mr. Holtz-Eakin 'seems to contradict precisely what he said earlier.'" Unfortunately, the article does not say why that seems to be the case. Second, the article quotes Bush Administration critic and blogger Glenn Greenwald, who has stated that he sees the e-mail has a "complete reversal . . . to shore up the support of right-wing extremists." Third, NRO blogger Andrew McCarthy, one of the few people left who endorses the strong Article II vision, is quoted as saying that the e-mail "implicitly shows Senator McCain’s thinking has changed as time has gone on and he has educated himself on this issue." I understand that these three people are reading the e-mails that way, but I don't understand why.

  Charlie Savage won a Pulitzer Prize for the Boston Globe for his articles criticizing the Bush Administration's Article II theories, so I understand that he would want to return to the theme now that he's at the New York Times. (BTW, congrats on the move, Charlie!) And maybe I'm quirky in not seeing the e-mails as inconsistent. But it seems like a strange story to me given how sparse the evidence is of a change.
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Polar Bear Panel at AEI:

On Monday I will appear on a panel at AEI in Washington, D.C. to discuss the legal and other implications of the Interior Department's decision to list the polar bear as a "threatened" species under the Endangered Species Act. Joining me on the panel will be Bryan Arroyo, Assistant Director for the Endangered Species Program for the Fish & Wildlife Service. AEI's Ken Green will moderate. Details about the event are here.

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AALS Mid-Year Meeting: Federalism and the Roberts Court:

On Wednesday morning I led a session on “Federalism and the Roberts Court,” in which we considered the likely trajectory of the Court’s federalism jurisprudence. Efforts to reinvigorate the judicial safeguards of federalism were a hallmark of the Rehnquist Court’s jurisprudence. A slim majority of the Court sought to advance this cause in two areas: Enumerated Powers (commerce clause, Section 5 of the 14th Amendment) and State Sovereignty (sovereign immunity and commandeering). Further, these cases tended to split along traditional ideological lines.

These issues – enumerated powers and state sovereignty – have been largely absent from the jurisprudence of the Roberts Court thus far. While such traditional federalism concerns were quite evident in some prominent cases (e.g. Gonzales v. Oregon, Rapanos), such concerns merely served to narrow the Court’s statutory interpretations, and the justices largely avoided any consideration of the underlying constitutional questions.

This far, the action has shifted to questions of preemption and the dormant commerce clause. The latter area, in particular, seems ripe for change as the Court’s recent decisions in this area (e.g. United Haulers, Ky. Dept. of Revenue v. Davis) suggest the Court may be ready to simplify or even scale back its enforcement of commerce clause limits on state regulatory authority. Also interesting is that the Roberts Court’s cases in these areas have not broken down along traditional ideological lines. Consider, for instance, the divisions in Watters v. Wachovia Bank, a preemption case in which Roberts and Alito split, and Kennedy’s dissenting votes in the dormant commerce cases. In short, the early returns suggest that federalism in the Roberts Court could be quite different than federalism in the Rehnquist Court.

Will this pattern continue, or will the Court return to the federalism battlegrounds of the Rehnquist years. Given the small size of the Court’s docket, it may not mean much that it has yet to hear a significant enumerated powers or state sovereignty case. Such cases could still be waiting in the wings and a more traditional ideological split in preemption or dormant commerce clause cases could yet emerge.

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AALS Mid-Year Meeting: Regime Politics and the Roberts Court:

This morning’s plenary considered “Regime Politics and the Roberts Court.” Moderated by Stephen Griffin (Tulane), the panel featured Pamela Karlan (Stanford), Thomas Keck (Syracuse), and Neil Siegel (Duke). As Griffin explained, the aim of “regime politics” analyses in political science is to explain constitutional doctrine by reference to the governing partisan coalition of which the Court may be a part. In this regard, such analyses seek to situate the Court in the broader context of American politics, political regimes, and governing coalitions. While Justices may reflect the Presidents that nominated them, and the time at which they were nominated, they may also respond to broader political changes and social movements.

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Kmiec on gay marriage:

Last night I had the pleasure of debating gay marriage against Doug Kmiec at the lawyer's chapter of the Federalist Society in Chicago. You can read Professor Kmiec's kind and generous account of the debate at Slate.

After about 3 hours of debate, during which many people spoke, twenty remained to vote on the resolution. Gay marriage lost, 12-8. We always seem to lose these popular votes.


Thursday, June 5, 2008

When Can A Police Officer Lawfully Order You To Move Along?:: The DC Checkpoint plan I blog about below raises another interesting question: Can a police officer order you to move along -- that is, to leave the area -- without any suspicion that you've committed a crime? Stephen Henderson recently wrote a very interesting article on the topic that is worth reading if you're interested:'Move On' Orders as Fourth Amendment Seizures, recently published in the Brigham Young University Law Review.

  This topic also raises something I've long wondered about: What are the Due Process limits on criminalizing failure to obey an officer? In particular, is there a constitutional requirement that the person understands that failure to obey is a crime? Citizens generally have no idea when they have to do what an officer tells them to do, and I would think there is some sort of Due Process requirement of fair notice that the order has to be obeyed before an arrest can be made.
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Is the DC Checkpoint Plan Unconstitutional? The Washington Post has a detailed story on DC's plans for a "military style checkpoint" to stop gun violence. Eugene mentioned it briefly below, but I wanted to blog at some length about the legal issues. It turns out that there's a fairly specific Fourth Amendment law of automobile checkpoints, and that we can look to those cases to see how the DC law fits in. My bottom line: I think the DC checkpoint plan is pretty clearly unconstitutional.

  Let's start with some background. The Supreme Court has held that the legality of automobile checkpoints are governed by a reasonableness standard under the Fourth Amendment. The cases try to balance the government's interests against the privacy interest and permit the automotive checkpoint when the government has a good reason and the infringement on privacy is minimal. So, for example, the police can use a drunk driving check point, or an immigration checkpoint, so long as they are well designed to minimize the privacy intrusion. See, e.g., Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990) (drunk driving checkpoint okay); United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (immigration checkpoint okay)

  In 1996, in Maxwell v. City of New York, 102 F.3d 664 (2d Cir. 1996), a divided panel of the Second Circuit relied on these precedents to uphold a checkpoint nearly identical to the one that DC is planning. The Second Circuit thought that the checkpoint was reasonable for three reasons:
First, the checkpoints in question served an important public concern in attempting to deter drive-by shootings that were, or were reasonably perceived to have been, connected with widespread drive-up drug purchases. Second, at the time of implementation, the checkpoints were reasonably viewed as an effective mechanism to deter criminal behavior in the barricaded area. Indeed, checkpoints similar to the one here had been effectively used in the past by the New York City Police. Third, the intended level of intrusion to motorists was minimal. No vehicle was to be stopped or its operation questioned unless entry into the cordoned-off area was desired. For those seeking entry, the stop was meant to be brief and was aimed solely at ascertaining the motorists' connection to the neighborhood.
  The Post story suggests that DC is relying on the Maxwell case as authority for legality of the checkpoint. And if the law were today what it was in 1996, I would say their legal case is certainly plausible.

  The difficulty is that four years after Maxwell, the Supreme Court took a different turn in its cases in City of Indianapolis v. Edmond, 531 U.S. 32 (2000). In Edmond, the City of Indianapolis set up vecicle checkpoints to search for drugs. The city was worried that people were bringing narcotics into the city, and they figured that they could set up reasonable checkpoints to deal with the drug problem much like the earlier checkpoints had dealt with the problems of drunk driving and immigration. The Supreme Court disagreed, concluding that the check points were unconstitutional because the government interest was a traditional law enforcement interest rather than something else like public safety.

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Fourth Circuit "Logjam":

The June ABA Journal cover story focuses on the confirmation "logjam" that has left four vacancies on the U.S. Court of Appeals for the Fourth Circuit -- three of which are classified as "judicial emergencies" and one of which has been open for almost 15 years. (There were five vacancies when the article went to press, but Steven Agee was recently confirmed --the first confirmation to the Fourth Circuit since 2003.) Given there are 15 seats on the Fourth Circuit, the court is operating at less than 75 percent strength.

As the article makes clear, Senators from both parties have contributed to the obstruction of fourth Circuit nominees for some time. Senator Jesse Helms, in particular, kept one North Carolina seat open for over six years during the Clinton Administration because Senate Democrats had refused to confirm his protege Terrence Boyle to the court when nominated by the first President Bush. Senator John Edwards returned the favor when President Bush was elected, blocking Boyle's confirmation as payback. And since then things have only gotten worse. The political fights over judicial nominations have steadily escalated over the past twenty years, and there is no sign it will let up soon.

The reason the nomination logjam has lasted this long is that judicial retirements have turned what was once the nation’s most reliably conservative appellate court into one split evenly—between judges appointed by Democratic presidents and those appointed by Republicans.

With the circuit’s ideological direction hanging in the balance, there’s been near-paralysis in Washington. The president has nominated reliably conservative lawyers to fill most of the vacancies, and the Democrat-controlled Senate has failed to act on most of the nominations. Meanwhile, the work of the circuit grinds on, with fewer and fewer judges to shoulder the burden.

Since Democratic Party leaders are feeling confident about their prospects for retaking the White House this fall, chances that any nominees beyond Agee will be confirmed before Bush leaves office in January range from slim to none, most experts say. And if the next president is a Democrat, his or her nominees could remake the 4th Circuit into a more moderate appeals court for a generation or more.

The article also reports that the Fourth Circuit has managed to operate short-handed quite well, at least thus far.
Despite the judicial shortage, the 4th circuit continues to dispose of cases quicker than almost any other circuit. But it does so while granting oral argument in fewer cases than its counterparts, and by issuing fewer substantive opinions explaining its decisions.

In 2006, the 4th had an average disposition time per appeal of 91⁄2 months, which tied the 11th Circuit as the quickest in the nation. The 9th Circuit had the slowest, at nearly 16 months. The national average was slightly longer than 12 months.

Judges in the 4th Circuit also consistently rank as among the hardest-working in the federal appeals courts. In fiscal year 2006, 679 appeals per active judge were terminated on the merits. Only the Atlanta-based 11th Circuit, with 877, and the New Orleans-based 5th Cir­cuit, with 836, ranked higher. The D.C. Circuit had the fewest, at 173. The national average was 539.

But the 4th Circuit granted oral argument in less than 12 percent of its cases in 2006, far and away the smallest percentage of any circuit in the country. The average for all circuits was nearly 26 percent. That same year, the circuit also issued the lowest percentage of published opinions, at just over 6 percent. The average for all circuits was just under 16 percent.

Chief Judge Karen J. Williams, a 1992 appointee of the first President Bush, says the court is making the best of a bad situation.

The circuit has been able to stay current with its workload so far without suffering any loss in quality—in part by relying on its senior judges, and by inviting trial judges in the 4th Circuit and senior judges from other circuits to sit by designation, she says.

But she also says it won’t be able to do so indefinitely. “While we can continue to get our work done in a timely manner for the near future, over time the vacancies on our court, if not filled, may begin to have an adverse effect,” she says.

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Should Homes Get Stronger Protection Against Eminent Domain than Other Property?

Cornell lawprof Eduardo Penalver's praise of California Proposition 99 for claiming to protect homes, but not other property against development takings raises the more general question of whether homes should get more protection against eminent domain than other property. Penalver is perhaps the leading academic advocate of the view that they should (see this article for a statement of his views). I take the opposite position. As a general rule, all property should get the same level of protection against takings, regardless of function.

The standard "subjective value" argument for giving homes a special status in takings law is much less compelling than many believe. And even if homes do have higher subjective value than other property uses, the subjective value problem is only one of many good reasons for restricting takings. The others all apply with equal force to other property uses.

I. Homes and Subjective Value.

The main argument for giving homes special status in takings law is that they have unusually high "subjective value," the benefit that the owner derives from his property over and above its market price. As scholars have long recognized, the use of eminent often destroys subjective value because owners are only compensated for the "fair market value" of the property condemned by the government. Although it's possible to increase the level of compensation above the market price (as is done in Britain and Canada), it's hard to calculate subjective value with any precision. Thus, governments are highly likely to undercompensate the owners of condemned property in cases where the land in question has high subjective value. For this reason, many argue that the law should it make it more difficult to condemn high subject value property than property that has little value to the owners beyond its market price.

Homes, Penalver and others claim, tend to have higher subjective value than other properties. For example, many people have lived in the same house or apartment for years and have a strong emotional attachment to it. Others have strong attachments to their neighborhoods or to friends and relatives who live nearby. This valuable "social capital" might destroyed if they were forced to move.

It is indeed true that homes often have high subjective value. But at the same time, there are many homes that do not. On the other hand, there are many non-residential uses of property that have high subjective value of their own.

People like Susette Kelo and many of 4000 people expelled from their homes in the notorious 1981 Poletown case have lived in the same neighborhood for decades and have strong social ties there. But the Susette Kelos of the world are offset by the many homeowners who are more like me. I've only lived in my current apartment for a few years, don't know most of the neighbors, and attach relatively little subjective value to my condo. In a highly mobile society where many people move regularly, my case isn't that unusual.

By contrast, many non-residential property uses generate as much or more subjective value as most homes do. Perhaps the most common type of property condemned in "blight" or economic development takings is small business property. And many small businesspeople surely attach high subjective value to their businesses. Many would lose a large part of their customer base and community ties if forced to move by eminent domain, and these losses aren't included in the fair market value of the condemned land. Churches and private conservation areas are two other examples of non-residential property uses with high subjective value. Certainly, many churches have value to their clergy and worshippers that go far beyond the market price of their land and physical infrastructure. Both are often threatened by "economic development" condemnations, as Jonathan Adler and I discuss in this article (see also my discussion of the vulnerability of churches to takings in this 2006 post).

In sum, the distinction between homes and other property is a very poor proxy for subjective value. Many homes have little or no subjective value. And many of the most commonly condemned types of non-residential property tend to have high subjective value of their own.

II. Other Reasons for Restricting Takings.

Even if the subjective value rationale for limiting takings does apply more strongly to homes than other properties, there are a large number of other reasons for limiting condemnation that apply equally to all property. I can't possibly discuss all of them here. But my 2007 Supreme Court Economic Review article criticizing Kelo-style "economic development" takings considers several in detail. Among the most important are 1) the tendency of eminent domain to be "captured" by powerful interest groups who use it to victimize the politically weak for their own benefit, 2) the flaws in the political process that make it difficult or impossible for voters to monitor the quality of takings initiated by government, 3) the superior efficiency of the market in allocating land to its most highly valued uses, and 4) the tendency of development takings to cause net economic harm to the very communities they are supposed to benefit. All of these reasons for restricting takings - and a number of others raised in my article - apply just as much to commercial and nonprofit property uses as they do to homes.

Your home should indeed be protected against condemnation like a castle. But so should your business, your church, and any other legitimate uses that you might have for your land.

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When Does the State “Expressly Waive” an Exhaustion Defense to a Brady Claim?

Today, D’Ambrosio v. Bagley, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit split over an interesting question in a capital habeas case: Where a habeas petitioner makes a Brady claim that the government suppressed or withheld mitigating evidence, when does the government “expressly waive” its defense that the petitioner failed to exhaust the Brady claim in state court? In this case, a divided panel held that the government’s conspicuous failure to raise such a claim could constitute an “express” waiver, even though the waiver was never made explicit. On this basis, the court upheld the district court’s grant of death-row inmate Joe D’Ambrosio’s habeas petition. Judge Rogers wrote the opinion of the court, joined by Judge Gibbons. Chief Judge Boggs dissented in part.

Here is how Judge Rogers summarized the case in his majority opinion:

Joe D’Ambrosio was convicted of murdering Anthony Klann in 1988. After D’Ambrosio discovered evidence that the prosecution had withheld during his trial, he amended his then-pending habeas petition to add a Brady claim. The district court granted the writ. On appeal, the warden argues, for the first time, that D’Ambrosio failed to exhaust his Brady claim and should be required to return to state court to relitigate the claim there. Although D’Ambrosio’s Brady claim was not presented to a state court, we do not dismiss his petition because the warden expressly waived the exhaustion requirement.
While the waiver was not explicit by the state, Rogers noted, it was unambiguous and unequivocal.
The warden expressly waived the exhaustion requirement because her counsel’s conduct during the district court proceedings manifested a clear and unambiguous intent to waive the requirement. In response to D’Ambrosio’s motion to amend his habeas petition in order to add the Brady claim, the warden stated that she took no position on the motion, but requested the opportunity to file a response if the district court granted the motion to amend. On October 25, 2002, the warden filed a motion to expand the record to include evidence that the warden argued undermined D’Ambrosio’s Brady claim. On November 25, 2002, the district court granted both motions. Importantly, with respect to D’Ambrosio’s motion to amend his habeas petition, the district court stated that its understanding was that the warden would not argue that the Brady claim was unexhausted . . . .

This is an extraordinary case in which the district court stated that it understood exhaustion to be a non-issue and that the warden would not later assert it, the warden failed to correct what the district court clearly viewed as the warden’s position during the almost four years of litigation before that court, and the warden went on to state to the district court that D’Ambrosio’s claims would be untimely in the state courts (thereby confirming the district court’s understanding). We are aware of no binding authority that says that such conduct by the State is not an express waiver of the exhaustion requirement.

In short, Rogers held, the state’s words and actions made clear that it waived any exhaustion defense against D’Ambrosio’s Brady claim. Chief Judge Boggs dissented on this point, arguing simply that there cannot be an “express” waiver of an argument that was never verbally expressed.

Another interesting aspect of D’Ambrosio is the non-ideological split it produced. As I’ve been noting in a series of posts, the sixth Circuit appears to be quite ideologically divided on habeas matters, particularly in death penalty cases. Particularly in divided cases, “liberal” judges vote to grant habeas petitions and “conservative” judges vote to deny. In this case, however, all three judges on the panel – Boggs, Gibbons, and Rogers – would generally be considered “conservative, and two of the three voted to affirm the district court’s grant of habeas relief.

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The Crime of Severe, Repeated, and Hostile Communication with the Intent to Cause Substantial Emotional Distress?

That’s what a proposed federal statute -- the Megan Meier Cyberbullying Prevention Act, HR 6123, introduced two weeks ago by Reps. Linda Sanchez (D-CA) and Kenny Hulshof (R-MO) -- would create:

Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means [“including email, instant messaging, blogs, websites, telephones, and text messages”] to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both.

Wow. So if I harshly criticize Reps. Sanchez and Hulshof (“hostile”) at least twice (“repeated”) in a way that a jury finds “severe,” whatever that exactly means, and if I do that “with the intent to ... cause substantial emotional distress,” I could go to prison for up to two years. My criticism could be perfectly accurate. It could be an expression of my opinion, including on political, social, or religious issues. The desire to cause substantial emotional distress could be prompted by the target’s reprehensible actions or political views, and could be coupled with a genuine attempt to persuade the public. Doesn’t matter: My actions would be a crime.

This is clearly unconstitutional. In Hustler v. Falwell, the Supreme Court held that even civil liability for “outrageous” (not just “severe”) behavior that recklessly, knowingly, or purposefully causes “severe emotional distress” (not just “substantial emotional distress”) violates the First Amendment when it’s about a public figure and on a matter of public concern. Many, though not all, lower courts have held the same whenever the statement is on a matter of public concern, even about a private figure.

I would go further and reject the emotional distress tort altogether whenever it’s premised on the content of speech that falls outside an existing exception, i.e., speech that isn’t threatening, factually false, or the like. But in any case even the specific holding in Hustler is enough to make the statute facially overbroad. (Given the Hustler reasoning, the requirement that the speech be electronic, repeated, or intended to cause substantial distress doesn’t adequately narrow the law: "[I]n the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment.... [E]ven when a speaker or writer is motivated by hatred or ill will his expression was protected by the First Amendment....")

Existing telephone harassment laws have their problems in some cases, but at least they limit themselves to one-to-one speech to the person who is being “harassed,” and don’t interfere with the speaker’s ability to communicate with willing listeners in the public at large. This law has no such limitation. Its reference to blogs and websites strongly suggests that it deliberately addresses one-to-many publishing media as well as one-to-one email and text messaging -- but even without that reference, it would literally cover any “communication,” with no limitation that the communication be sent specifically to the distressed person. Appalling.

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The Third Party Doctrine, and What Does the Fourth Amendment Do?: Over at Technology Liberation Front, the Cato Institute's Jim Harper has an interesting response to my new Fourth Amendment paper, The Case for the Third Party Doctrine, forthcoming in the Michigan Law Review. Jim writes:
  My differences with Kerr are plentiful. Starting at the 30,000 foot level, my sense is that Kerr is treating the Fourth Amendment as a rule about criminal procedure. Oh sure, it’s classed that way in the legal academy, it has most of its application in criminal cases, and I first studied Fourth Amendment law in my constitutional criminal procedure class. But add this to the list of things I didn’t learn in law school: The touchstone of the Fourth Amendment is the security of the people—all of them—against unreasonable searches and seizures of their persons, houses, papers and effects. “The people” refers to all of us, the law-abiding citizens. . . .
  The welcome vision displayed in Katz counsels that the Fourth Amendment should naturally protect people as they come to use other instrumentalities — automated machinery owned by third parties, in particular — to expand the scope of their lives yet again. . . .Technological neutrality isn’t really relevant. What’s relevant is preserving the same security for people and their stuff that they should have in a free society.
  I think Jim has accurately identified a major gap between us: I treat the Fourth Amendment as a doctrine about criminal procedure, while Jim treats it as a way of ensuring a free society. The two approaches lead to very different criteria for analyzing Fourth Amendment rules. My approach generally focuses on whether rules pragmatically balance public safety and civil liberties in a regime backed by the exclusionary rule, whereas Jim's approach looks to what is necessary to protect civil liberties and generally assumes that other legal mechanisms can take care of public safety concerns.

  The interesting question is, where are we getting our understandings of what the Fourth Amendment means? My own view is candidly descriptive: I think this is what the Fourth Amendment means because this is what the Justices and the judges think it means. The notion of the Fourth Amendment as a tool of reasonable criminal procedures is, in my view, the basic post-Katz understanding of the Fourth Amendment held almost universally by the people with the robes. My general approach is to work within the consensus understanding held by the rulemakers and to think about how to apply that understanding rather than to change it.

  But is this really the correct way to interpret the Fourth Amendment? Is this the true Fourth Amendment? Well, if you're an originalist, it's not really close to the original meaning of the Fourth Amendment, as Professor Davies has persuasively argued. (.pdf) It's a lot closer to the original meaning of the Fourth Amendment than Jim Harper's "free society" concept. But in my experience, the real judges and Justices that make the rules don't really think about such things. They approach the Fourth Amendment as a tool of criminal procedure, and for a lot of reasons there's not much that can be done to change that.

  I think that explains much of the gap between the judges and the scholars in the area of the Fourth Amendment. Many scholars are greatly drawn to Jim's notion of the Fourth Amendment as a guarantor of a free society. I suspect many criminal procedure scholars are drawn to this notion because many crimpro scholars are strongly civil libertarian. If given a choice between a constitutional rule ensuring a free society and a constitutional rule requiring only reasonable police practices in criminal investigations, a civil libertarian presumably would pick the former.

  But the judges see themselves doing something very different; they see themselves figuring out the rules of criminal investigations. As a result, judges normally find most Fourth Amendment scholarship pretty unhelpful. For the most part, the scholarship isn't aware of their world: it imagines a Fourth Amendment that they don't see, and it doesn't often connect with the realities of the one that they do. One goal of my own work in the Fourth Amendment is to help push the scholarship to engage more with the world of the judges, and The Case for the Third-Party Doctrine is an example of a paper that I hope helps to do that.
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AALS Mid-Year Meeting: Executive Power:

This morning’s plenary panel is on executive power. Moderated by conference chair Mark Tushnet, it features the line-up of Kathleen Clark (WashU), Joseph Margulies (Northwestern), Sai Prakash (USD), and Adrian Vermeule (Harvard). Tushnet opens with the observation that the law of executive power seems to “come in waves.” There was “Nixon Law” (impeachment, exec privilege, war powers), then “Clinton Law” (impeachment, privilege, and immunity), and now “Bush Law” (war powers, secrecy).

Kathleen Clark addressed “Accountability Mechanisms and National Security Secrecy.” In short, her claim is that assertions of national security secrecy undermine political accountability mechanisms within the separation of powers. From this perspective, secrecy not only serves to advance executive functions, but also to insulate the executive branch from oversight by other branches and the public at large.

Clark provided a useful typology of accountability mechanisms based upon how they were created and where they are situated, ranging from those that are wholly internal to the executive branch (such as the Office of Legal Counsel opinions, the Office of Professional Responsibility, etc.), Congressional accountability mechanisms (oversight hearings, legislative protection for whistleblowers etc.), judicial accountability mechanisms (Bivens actions, etc.), and those that are external to the government (media, elections, etc.). In each of these cases, Clark observed, assertions of secrecy can undermine, if not wholly disarm, the accountability mechanisms.

Clark’s presentation highlighted an interesting tension between secrecy and accountability. Without question, secrecy in national security and other matters is sometimes essential (though downplayed by clark). There are some things governments must do under cover. Yet Clark is certainly correct when actions (and their justifications) are kept secret, even formal accountability mechanisms may cease to function. Striking the right balance is particularly difficult. To focus on an example Clark used as a case study – NSA surveillance – some degree of secrecy is necessary to ensure the effectiveness of certain types of surveillance activities. At the same time, the high degree of secrecy about this particular program made it particularly difficult for Congress (let alone the public) to ensure that Executive Branch was complying with relevant statutory and constitutional constraints. Even if one believes that the Bush Administration’s surveillance initiatives were necessary for national security, allowing the executive branch to initiate and engage in such activities in virtually complete secrecy reduces the likelihood that such activities will be conducted in a responsible fashion and deactivates the political checks that ultimately constrain overbroad assertions of executive power.

Sai Prakash spoke on the theory of the unitary executive in the Bush Adminsitration. Where many argue the Bush Administration has been too aggressive in asserting the theory of the unitary executive, Prakash’s view is that the Administration has paid “too little” attention to the theory of the unitary executive. This theory, Prakash hastened to add, has “nothing to do” with many the Bush Administration’s assertions of executive power. As he explained, the theory says little if anything about war powers, foreign affairs or the executive’s ability to disregard congressional enactments. Rather, the theory of the unitary executive is almost exclusively concerned with “law execution.” In other words, it is about the executive branch as a unified whole under the control of the President, and says little about the scope of the executive power or even the executive branch’s ability to contravene Congressional command.

In practice, Prakash argued, much of what occurs within the executive branch occurs independent of meaningful Presidential oversight. In some instances we actually have “multiple, plural executive counsels,” rather than single chief executive because of the existence of independent agencies, such as the FCC and SEC, that are able to operate without executive oversight. As a consequence, the President does not “take care” that the laws within these agencies’ control are executed. For those concerned about a “unitary executive,” this is of greater concern than whether the executive has the authority to act unilaterally with regard to national security or foreign affairs. (Perhaps, as Clark suggested in comments, the Bush Administration has sought to follow a “unilateral executive” model, rather than a “unitary executive” model.)

Joseph Margulies discussed the Bush administration’s detention policies and their relation to the architecture of executive power. Margulies argued that the Bush Administration’s policies on detention are largely unchanged from 2001 and 2002, despite extensive criticism and a (near) consensus that its policies are wrong-headed if not also illegal. One aim of Margulies’ talk was to explore why the policies are so resistant to change if they lack legitimacy or support.

Margulies suggested that criticism of the Bush Administration’s detention policies is universal, but I think he overstates his case. There is no question that academic criticism of the Administration’s detention policies is (almost) universal. A similar consensus appears to exist abroad (at least in public). Some aspects of the Administration’s policies have also been challenged from within the executive branch and by the courts, including the Supreme Court. Yet on the political right there remains substantial support for the executive branch’s unilateral authority to detain enemy combatants as unlawful combatants and military adversaries. Many individuals, within the administration and without, believe that such measures are necessary for the security of the nation, and must be pursued even in the face of substantial opposition.

Margulies explanation for the present situation is that there is a dominant cultural and political narrative that existing policies are “flawed” and should be criticized. This makes it necessary for political elites to disclaim existing policies. Yet there is relatively little public concern for detention policies. That is, the average voter is far more concerned about other issues, so the political consequences of maintaining existing policies are virtually nonexistent. So political elites can condemn existing policies, but need not do anything to change them. One implication of this, Margulies suggests, is that it can be particularly difficult to control or discipline unpopular exertions of executive power absent electoral change.

Adrian Vermeule sought to look forward to the next administration, and consider how a President McCain or Obama will approach executive power. Drawing on theoretical and empirical research in the political science literature, Vermeule noting the prevalence and importance of “cross-over policy-making” – the tendency for left-wing presidents to supply right-wing policies and vice-versa. As explained by Vermeule, there is a tendency for Presidents to successfully advance policies that appear contrary to their ideological orientation. One reason such efforts are successful is because voters, lacking information, find executive claims to be more credible when they are contrary to the executive’s stated ideological preference. So, for instance, the public is more suspicious of hawkish policies from a hawkish president than from a dovish president, and vice-versa. This is self-limiting, as a right-wing president who moved too far to the left will lose his reputation as a”right-wing” president, but is nonetheless significant.

What does this mean for the next Administration? Perhaps, Vermeule suggested, this means that a President Obama would “engage in some symbolic civil-libertarian policies” on high-profile issues, but could also maintain or expand some Bush Administration national security and counterterror policies more successfully than a President McCain. Just as “only Nixon could go to China,” only a President Obama could escalate existing policies, and perhaps only a President McCain could withdraw from Iraq or negotiate with Iran. This asymmetry in political constraints means (in technical terms) that the mode and the mean of presidential policies are likely to diverge. In lay terms, while the majority of a President Obama’s policies are likely to be liberal, his ability to advance very liberal policies is truncated; he has more room to move to the right than to the left. Consider the Bush Administration: While definitely advancing “right-wing” policies on most issues, there are key areas in which the Bush Administration has moved farther to the “left” than would have a Democratic President (e.g. No Child Left Behind, Medicare Drug Benefit, federal spending). Looking forward, this means that on a handful of issues, it is likely that Obama could advance quite right-wing policies. The difficulty, of course, is that it can be difficult to know where a given President is likely to advance policies contrary to his ideological orientation.

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Eduardo Penalver on California Proposition 99 and the Kelo Backlash:

In this interesting post on Prawfsblawg, prominent property scholar Eduardo Penalver argues that California Proposition 99 institutes a useful distinction between homes and other properties by protecting the former, and not the latter against takings:

Prop. 99 would bar governments from taking owner-occupied homes through eminent domain for redevelopment, but permit the taking of other sorts of property (or the taking of owner-occupied homes for other purposes). Prop. 99's focus on residential property makes it (to my knowledge) unique among anti-Kelo legislation and also dovetails with a suggestion I made in an essay I wrote on Kelo a few years ago. Insofar as the backlash against Kelo was rooted in the popular views about the special status of residential property, I argued, it seemed strange to me that the proposed legislative responses have tended to sweep much more broadly, encompassing all privately owned land. It has always seemed to me that property rights groups were trading on the rhetorical and cultural power of homeownerhip in the service of a much more expansive agenda than the public reaction to Kelo merited on its own terms.

One problem with Penalver's defense of Prop 99 is that it doesn't actually provide any real protection even for owner-occupied homes. I documented this point elsewhere (e.g. - here). Penalver himself notes that he would have preferred protection against eminent domain to be extended to "long-term renters as well, and even to certain categories of commercial property."

Penalver is perhaps correct to say that the general public cares much more about protecting homes against takings than about protecting other types of property. He is also right that some libertarians want to use the reaction against Kelo to provide protection for property rights that goes beyond protecting homes.However, both statements need to be qualified.

I. Is Public Opposition to Eminent Domain Limited to the Taking of Homes?

The fact that the public cares more about protecting homes against takings than protecting other property doesn't mean that it is indifferent to the latter. Other than homes, the most common type of property condemned for development purposes is small business property. I suspect that most of the public is only slightly less sympathetic to small businesspeople who lose their commercial property to eminent domain than it is to homeowners who lose their residences. Indeed, survey data compiled in recent articles by Janice Nadler and Shari Diamond (here) and yours truly (here) suggest that public opposition to Kelo is pretty stable in polls using different kinds of wording, regardless of whether the question refers to the taking of homes or not. Some of the surveys cited in Nadler and Diamond's piece show that anywhere from 39 to 53 percent of the public oppose the use of eminent domain against any property for any reason. As the authors caution, these results should not be taken literally. But they do suggest that public opposition to takings isn't narrowly confined to concerns about homes.

II. Have Libertarians Used Kelo to Establish Greater Protection for Property Rights than the Public Wants?

Penalver is right that libertarians would like to see broader protection for property rights than majority public opinion currently supports. However, he exaggerates somewhat when he states that "[y]ou can see this manipulation of Kelo not only in the attempt to protect all private land from redevelopment takings, but also in the tendency of property-rights groups to bundle anti-Kelo initiatives with other elements of the property rights agenda, such as the anti-rent control provision of Prop. 98." The comment about California's Proposition 98 is accurate, but Prop 98 is the exception not the rule. Of the thirteen anti-Kelo referendum initiatives placed on state ballots since 2005 (ten of which passed), only four included regulatory takings or rent control provisions that covered "other elements of the property rights agenda." And two of these, Proposition 98 and Proposition 90 (narrowly defeated in 2006), were sponsored by the same California group. The other nine ballot initiatives (all of which passed overwhelmingly) stuck narrowly to the Kelo issue of forbidding the condemnation of property for transfer to private properties. I discuss these initiatives in detail in my forthcoming article on post-Kelo reform (pp. 35-38).

Penalver is also wrong to assume that state "legislative responses to Kelo" usually protect "all privately owned land." In reality, as I document in detail in this article, the vast majority of the new laws exempt "blighted" land, often under a broad definition of blight that allows the condemnation of almost any property. Many also exclude vacant lots, property that poses a threat to public health, and other categories.

In sum, it is true that libertarians want more protection for property rights than does the majority of the public. We wouldn't be libertarians if we didn't! On the other hand, the public's concerns go beyond a narrow focus on homes. And in many respects, the libertarian view is closer to the general public's position than is the current law in most states, which continues to allow the condemnation of both residential and other property with few or no restrictions. As I document in detail in my paper on post-Kelo reform linked above, the majority of the 42 states that passed reform legislation in the wake of Kelo have enacted laws that pretend to protect property rights without actually doing so to any significant extent. In that respect, Proposition 99, with its fake "protections" for property rights, is far closer to the norm than Proposition 98.

UPDATE: Eduardo Penalver clarifies his position somewhat in the comments here. I agree with much of what he says in his comment, but have two minor disagreements. First, I'm not convinced that a 25% rate of "bundled" post-Kelo referendum initiatives is unusually high - certainly not compared to the amount of bundling that occurs with initiatives on many other issues. Second, Eduardo is incorrect in claiming that Prop 99's focus on residential property is "a unique innovation in the anti-Kelo arena." Wisconsin's post-Kelo reform statute (discussed on pg. 24 of my article on post-Kelo reform) also provides greater protection for homes than it does for other land uses.

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Penalver on Prop 98 & Prop 99: Over at Prawfs, Eduardo Penalver has an interesting post on California's recent Propositions 98 and 99. An excerpt:
  Insofar as the backlash against Kelo was rooted in the popular views about the special status of residential property, . . . it seemed strange to me that the proposed legislative responses have tended to sweep much more broadly, encompassing all privately owned land. It has always seemed to me that property rights groups were trading on the rhetorical and cultural power of homeownership in the service of a much more expansive agenda than the public reaction to Kelo merited on its own terms.
  You can see this manipulation of Kelo not only in the attempt to protect all private land from redevelopment takings, but also in the tendency of property-rights groups to bundle anti-Kelo initiatives with other elements of the property rights agenda, such as the anti-rent control provision of Prop. 98. Of course, to the property rights libertarian, all of these things (Kelo, rent control, regulatory takings, etc.) are related to broader principles about the nature and scope of private property rights, but most voters do not accept those underlying libertarian principles — their reaction to Kelo rested on grounds that were much narrower, grounds having to do with the special status of the home. I suppose in politics there's nothing wrong about running with a backlash for all it's worth, but it has always seemed to me that there was room for more targeted legislative responses to Kelo.
  I would have voted for Prop 98 myself, but I think Eduardo is probably right that the public opposition to Kelo is largely rooted in the importance of personal home ownership rather than on a broader view of property rights.
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[Steve Bank, guest-blogging, June 5, 2008 at 11:02am] Trackbacks
Are the Renewed Inflation Fears a Harbinger of War Taxes?

Over the last two days, Federal Reserve Chairman Ben Bernanke has twice expressed "significant concern" about inflation, citing the rapid increase in energy and food prices as well as the general rise in the cost of imports. This is viewed as an important sign that the Fed may view inflation as a greater risk than economic growth.

As we discuss in our book, War and Taxes, this type of concern over rising inflation is a common feature of wars. During the Revolutionary War, reliance on currency finance led to a collapse of the continental currency. It was even worse in the Civil War for the Confederacy, where the government effectively financed the early stages of the war by printing money. Prices for staples like wheat, bacon, and flour rose by as much as 2,800 percent between 1863 and 1865. Indeed, according to economic historian Claudia Golden, “Every major war fought by the United States has been associated with price inflation. In fact, there are no extreme price peaks [between 1775 and 1975] that are not accompanied or preceded by a war.”

By the same token, in almost every war Congress has been urged to adopt war taxes not just for revenue, or to balance the sacrifices on the battlefield (as discussed in my post yesterday on the draft, but to fight inflation. Faced with rampant commodity inflation during the Civil War, Governor Joseph Brown of Georgia pleaded “For God’s sake tax us. Nothing else can save us from ruin.” Similar pleas were raised during World War II and Vietnam. President Roosevelt, during his Annual Budget Message to Congress in 1942, said “a well-balanced tax program must include measures which combat inflation.” In December 1965, Gardner Ackley, chairman of the Council on Economic Advisors, wrote in a memorandum to President Johnson, “there is little question in my mind that a significant tax increase will be needed to prevent an intolerable degree of inflationary pressure.” President Nixon argued for an extension of the tax surcharge in 1969 as an anti-inflationary measure.

So, does that mean we can expect politicians to justify the adoption of war taxes as a response to inflation if the rise in energy and food prices spreads more generally? Highly doubtful. One big change in the past quarter century since Vietnam has been the increased importance of the Federal Reserve Board itself. Ever since Paul Volcker introduced significant changes to the country’s monetary policy in the early 1980s, the Federal Reserve has been the principal soldier in the fight against inflation. And, to a large extent, it has been successful in keeping inflation relatively low even in the face of rising deficits. Tax is now considered too crude an instrument for the job. Nevertheless, it would not be surprising to see at least some anti-inflation rhetoric used in support of tax increases if the Fed falters and to see renewed support for more narrowly-tailored measures such as tax indexing as a general response.

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Congratulations to Barack Obama, and to the USA:

Even those of us who don't share his political views can revel for the moment in his historic achievement, and in the dramatic, positive changes in American society that opened his path to the nomination.

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Affirmative Action Forum-Shopping:

From India:

Rioters demand lower caste status in India

Thousands of protesters have besieged India’s capital New Delhi demanding their caste status be reduced to secure government benefits. Members of the Gujjar tribe blocked roads into the city and clashed with police as they demanded to be moved to the bottom of society to gain preferential treatment for university placements and government jobs.

More than 45,000 police fired tear gas as Gujjar mobs burnt tyres, hurled stones at passing cars and squatted on roads.

The rioting began last week in Rajasthan, when 39 members of the Gujjar tribe died in clashes with police while protesting the government’s refusal to “downgrade” their caste.

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John Adams:

I just finished watching the John Adama miniseries on HBO (I had dvr'ed it). If you didn't get to see it, I commend it to you. I haven't read McCullough's book and I'll confess that I was never much of an Adams guy (tending toward Jefferson). So I can't independently vouch for its accuracy. I can vouch for its entertainment value, however--I thought it was really well done, compelling viewing. My wife, who generally has little patience for historical programs of this sort, also found it mightily entertaining. I was especially impressed with how they brought to life the debates of the age, presenting viewpoints sympathetically and identifying the clash of positions. The episode on the Declaration of Independence was really well-done I think, and in particular, I learned a lot about the concerns of those opposed to independence.

I'm sure there are many of you out there who know much more about this than I do, so I just pass along my opinion as a viewer with a casual interest in the subject matter.

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It Would be Funny if it Weren't so Sad:

The increasingly repressive government of Russian Prime Minister (and former President) Vladimir Putin has now gone so far as to ban satirical criticism of his regime on TV broadcasts:

On a talk show last autumn, a prominent political analyst named Mikhail Delyagin offered some tart words about Vladimir Putin. When the program was televised, Delyagin was not.

His remarks were cut and he was digitally erased from the show, like a disgraced comrade airbrushed from an old Soviet photo. (The technicians may have worked a bit hastily; they left his disembodied legs in one shot.)

Delyagin, it turned out, has for some time resided on the so-called stop list, a roster of political opponents and other critics of the government who have been barred from television news and political talk shows by the Kremlin.

The stop list is, as Delyagin put it, "an excellent way to stifle dissent."

It is also a striking indication of how Putin has relied on the Kremlin-controlled television networks to consolidate power, especially in recent elections.

Opponents who were on television a year or two ago all but vanished during the campaigns, as Putin won a parliamentary landslide for his party and then installed his protégé, Dmitri Medvedev, as his successor. Putin is now prime minister but is still widely considered Russia's leader.

As the International Herald Tribune article linked above points out, virtually of Putin's prominent political opponents are banned from making statements on TV by the "stop list" - including former prime minister Mikhail Kasyanov, Vladimir Ryzhkov, and former world chess champion Garry Kasparov, leader of the main liberal democratic opposition party. Since he became President in 2000, Putin's regime has taken control of every major TV station in Russia, all of which are now either owned by the government or have been forcibly transferred to private owners who are Putin allies. So the regime can impose its "stop list" across the board. The entire situation is an abject lesson in the dangers of government control of broadcast media.

Ironically, the leaders of the Communist Party are among those complaining that they have been prevented from appearing on TV by the stop list. Putin himself, of course, was a longtime Communist Party comrade and KGB colonel in the days of the old Soviet Union. Another ironic victim of Putin's media policies quoted in the article is political talk show host Vladimir Pozner, who claims that the government forced him to stop interviewing opposition leaders on his show. I remember Pozner well from his days as a prominent official apologist for the Communist government back in the 1980s, at which time he defended the regime's imprisonment of dissidents such as Andrei Sakharov. Pozner was often deployed by the Soviets as a spokesman on US TV because he speaks English with no accent. In fairness, he has since apologized for some of what he did in those days, though the timing of his mea culpas leaves some room for doubt about their sincerity.

It's difficult to feel sorry for the likes of Pozner and the Communists. Opposition speech was repressed far more thoroughly when they were in power than it is under Putin today. If Pozner had dared to put dissidents on his show back in the 1980s (at least before 1988 or so), he would likely have suffered a much worse fate than merely being censored.

That said, even totalitarians and hypocrites deserve to have their freedom of speech protected. Whatever we may think of Pozner, official censorship is not the right remedy for his misdeeds. And Putin's "stop list" has of course affected many who are far more worthy of our sympathy.

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Wednesday, June 4, 2008

"The Assassination of Hillary Clinton" / "The Assassination of Barack Obama":

The New York Times blog reports:

This morning, a Boston-born performance artist, Yazmany Arboleda, tried to set up a provocative art exhibition in a vacant storefront on West 40th Street in Midtown Manhattan with the title, “The Assassination of Hillary Clinton/The Assassination of Barack Obama,” in neatly stenciled letters on the plate glass windows at street level.

By 9:30 a.m., New York City police detectives and Secret Service agents had shut down the exhibition, and building workers had quickly covered over the inflammatory title with large sheets of brown paper and blue masking tape. The gallery is across the street from the southern entrance to The New York Times building.

The police officers declined to answer any questions, and at first would not permit reporters to speak with Mr. Arboleda, who was wearing a black T-shirt and making cellphone calls from inside the makeshift gallery.

Later, Mr. Arboleda, who is 27, said in an interview: “It’s art. It’s not supposed to be harmful. It’s about character assassination — about how Obama and Hillary have been portrayed by the media.” He added, “It’s about the media.”

Mr. Arboleda said the exhibition was to open on Thursday and run all day.

The interview was abruptly ended as Mr. Arboleda was led off to the Midtown South police precinct station for what he called an interrogation....

Mr. Arboleda has even set up elaborate Web sites, one for Mrs. Clinton and one for Mr. Obama.

Shortly after 11:30 a.m., Mr. Arboleda called reporters to let them know that he had been released....

I appreciate that the Secret Service have an important and difficult job to do, but based on this account -- and I realize that it may be in error or incomplete -- it seems to me they went beyond what is allowed. It makes sense that they would have talked to Arboleda, and tried to figure out what he was doing in the storefront. They could well have decided to watch him for the duration of the exhibition and after. But I don't see that there was probable cause to believe he had committed a crime, which was what it would take to do more than briefly stop him and talk to him (a brief stop requires only reasonable suspicion).

Nor would there be probable cause to detain him if he had told them that he just wanted to go on setting up his exhibition, and didn't want to talk further to them (though again there may have been ample reason to watch him closely). Using the words "the assassination of Hillary Clinton" isn't a crime. Making threats is a crime, but I see no way how there could be probable cause to see the writing as an actual threat (as opposed to something that merits some questions and more watching).

Now perhaps the removal and two-hour interview of Arboleda was consensual, in which case no probable cause was required. But from the newspaper report that doesn't seem especially likely.

Note that "Special Agent Eric P. Zahren, a spokesman for the Secret Service in Washington, emphasized in a telephone interview that the agency did not seek to shut down the show. 'We did not shut down that exhibit or request that anybody else shut it down,' Agent Zahren said. 'This was brought to our attention, we went out there and had a conversation with the individual, but we did not shut it down.'"

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"Outcry After French Court Rules on Virginity":

A reader points to this AP article:

The bride said she was a virgin. When her new husband discovered that was a lie, he went to court to annul the marriage — and a French judge agreed.

The ruling ending the Muslim couple's union has stunned France and raised concerns the country's much-cherished secular values are losing ground to religious traditions from its fast-growing immigrant communities....

In its ruling, the court concluded the woman had misrepresented herself as a virgin and that, in this particular marriage, virginity was a prerequisite.

But in treating the case as a breach of contract, the ruling was decried by critics who said it undermined decades of progress in women's rights. Marriage, they said, was reduced to the status of a commercial transaction in which women could be discarded by husbands claiming to have discovered hidden defects in them.

The court decision "is a real fatwa against the emancipation and liberty of women. We are returning to the past," said Urban Affairs Minister Fadela Amara, the daughter of immigrants from Muslim North Africa, using the Arabic term for a religious decree....

In its judgment, the tribunal said the 2006 marriage had been ended based on "an error in the essential qualities" of the bride, "who had presented herself as single and chaste." ...

Article 180 of the Civil Code states that when a couple enters into a marriage, if the "essential qualities" of a spouse are misrepresented, then "the other spouse can seek the nullity of the marriage." Past examples of marriages that were annulled include a husband found to be impotent and a wife who was a prostitute, according to attorney Xavier Labbee....

[The man's lawyer] said both the man and the woman "understand that annulling the marriage is preferable to divorce because it wipes the slate clean (of) what you want to forget, but divorce wipes away nothing."

Indeed, the court ruling states that the woman "acquiesced" to the demand for an annulment "based on a lie concerning her virginity." ...

Here's my very quick thought: In principle, it seems to me that a spouse should be free to divorce the other spouse when the marriage was based on a lie. I think it's silly to care about whether one's bride was a virgin, but people are entitled to care about qualities that I think are irrelevant, as well as the indubitably relevant quality of truthfulness. Given this, it seems to me not very important whether this is called a divorce or an annulment, especially given that as I understand it French law generally allows no-fault divorce, at least when there's mutual consent.

Now I would be troubled if the law saw lack of virginity as a quality that is "essential" but other things as qualities that aren't "essential." That would be an endorsement by the legal system of the unsound view that virginity is extraordinarily important in a wife. I would also be troubled if the law encourages disputes about exactly what was said by one spouse to the other, since I suspect this would lead to lots of lying and not much truth-finding.

But if the couple agrees about the facts, and agrees that, to quote the AP's paraphrase of the court ruling, "in this particular marriage, virginity was a prerequisite," then allowing the annulment seems to me fine. In fact, it's better for the court to focus on what was essential to the parties rather than to select which qualities are "objectively" essential and which aren't objectively essential. I'm a big believer in decisionmaking using objective standards in lots of situations — but two people's decision about what's important to them about a spouse doesn't strike me as a situation that calls for such objective standards. And, I stress again, if the parties could have gotten divorced in any event, why the strong objection to letting them get an annulment instead?

Now I understand that there is a lot of insistence on virginity in many Muslim families (and some non-Muslim ones, though my sense is that in France this insistence is likely much less common among the non-Muslim population). As I said before, I think this is a bad basis for choosing a spouse, and I suspect that a cultural acceptance of this basis leads to all sorts of emotional pain. On top of that, my guess is that the virginity rule is definitely not applied in a sex-neutral way, which makes it even more improper in my view.

But, as I said, people are entitled to choose their spouses based on any reason at all, and to my knowledge French law allows them to agree to divorce based on any reason at all (again, at least if both agree). Saying that they may also annul the marriage based on any misrepresentation that they saw as material strikes me as no different: It's an accommodation of people's choices about whom to have a tremendously important relationship with, and we should generally accommodate those choices even when we think they are partly unwise — I say partly because while the insistence on virginity strikes me as unsound, the concern about the lie strikes me as much more proper — or reinforce unsound community attitudes.

At the same time, I should note that this is just a general principles judgment, coupled with the limited information about French law and the decision given in this story. It may well be that there are important legal details that I'm missing that would indeed justify the outcry.

UPDATE: Bruce Adelstein at Three Jews, Four Opinions discusses a Jewish Law approach to law and virginity.

Related Posts (on one page):

  1. "French Court Reverses Virgin Annulment":
  2. "Outcry After French Court Rules on Virginity":
84 Comments

"Lanier Plans To Seal Off Rough ’Hoods in Latest Effort To Stop Wave of Violence":

From the Examiner:

D.C. police will seal off entire neighborhoods, set up checkpoints and kick out strangers under a new program that D.C. officials hope will help them rescue the city from its out-of-control violence.

Under an executive order expected to be announced today, police Chief Cathy L. Lanier will have the authority to designate “Neighborhood Safety Zones.” At least six officers will man cordons around those zones and demand identification from people coming in and out of them. Anyone who doesn’t live there, work there or have “legitimate reason” to be there will be sent away or face arrest, documents obtained by The Examiner show....

I'm on the road, and can't say much in detail about this right now, but I see no way this could be legal. Thanks to Kris Baumann for the pointer.

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Texas v. Arkansas:

An amusing discovery order from yesterday; thanks to Michael Barclay for the pointer.

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Green Party Activist Wins GOP Senate Primary in Montana:

Via Richard Winger's Ballot Access News comes this interesting story.

Perennial candidate Bob Kelleher won an upset victory in Montana’s Republican U.S. Senate primary early Wednesday, . . .

Kelleher, an 85-year-old attorney from Butte, will challenge Democrat incumbent Max Baucus in November. Baucus is a five-term U.S. senator who had more than $6 million in the bank in May and has raised more than $10 million since he was last re-elected in 2002.

Kelleher, who has run for office in the state at least 13 times, has not filed any campaign finance reports, meaning he has not raised or spent more than $5,000 in the race.

The new nominee’s views are far from the mainstream Republican party in Montana. He has run as both a Democratic and a Green Party candidate, and he has advocated more gun control. . . .

Kirk Bushman, an industrial facilities designer from Billings, and former Montana House Majority Leader Michael Lange were thought to be the front-runners in the Republican primary. But with 96 percent of precincts reporting at 1 a.m. Wednesday, Kelleher had a wide lead over both of them with 36 percent of the vote. Lange had 23 percent, and Bushman had 21 percent.

There is some speculation that Kelleher won simply because, having run for office so many times before, he had high name recognition among primary voters in a crowded field.

Related Posts (on one page):

  1. More on Montana's "Republican" Senate Nominee:
  2. Green Party Activist Wins GOP Senate Primary in Montana:
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Judicial Nomination Stall:

The Senate has confirmed President Bush's appellate judicial nominees at an amazingly slow rate. Despite pledges to confirm three additional nominees before Memorial Day, the Senate has only confirmed two nominees all year, while numerous well-qualified nominees sit and wait. By comparison, a Republican Senate confirmed eight of President Clinton's appellate nominees during his last year in office. Since January 2007, the Senate has confirmed eight appellate nominees, whereas a Republican Senate confirmed fifteen during President Clinton's last two year.

It's certainly possible that the Senate rush several nominees through over the summer, but even with such an effort, this Congress will stand out for its snail-like pace. So it should be no surprise that Republicans are upset. Senator Mitch McConnell, in particular, has had enough.

At the beginning of this Congress, the Majority said it would meet or exceed the average of 17 circuit court nominees that have been confirmed in prior Congresses; yet it has only confirmed eight circuit court judges thus far. More disturbing, the Chairman of the Committee recently threatened to shut down the confirmation process completely, an action that would break yet another historical precedent.

The Majority said it would treat Republican senate delegations fairly; yet for months, the Democratic Majority has only worked on circuit court nominees from states with a Democratic senator.

The Majority said it would do its ‘utmost,’ said it would do ‘everything’ possible, said it would do ‘everything within its power’ to confirm three more circuit court nominees by the Memorial Day recess; yet it only confirmed one nominee. Moreover, it appears the Majority did not seriously attempt to honor its commitment. Indeed, since that deadline passed almost two weeks ago, the Democratic Majority has still failed to confirm more circuit court nominees.

The Democratic Majority has refused to honor its commitments. It apparently believes that commitments do not matter in the United States Senate, and that actions do not have consequences.

Certainly one reason for Senate Democrats to stall on President Bush's nominees is their hope to leave seats open that could be filled by a President Obama. Even so, I find the level of intransigence a bit surprising. Among other things, the unprecedented slowdown gift wraps an issue for Senator McCain. McCain needs help motivating the conservative base, and there are few issues that resonate among such groups like judicial nominations. All it would take to disarm the issue would be to confirm a handful of high-profile, exceedingly qualified nominees, such as Peter Keisler, who have widespread support.

As longtime readers know, I also worry that the unprecedented intransigence risks further exacerbation of political conflict over judicial nominations. While I do not expect Republican Senators to filibuster or otherwise obstruct a President Obama's nominees — and I will not support such efforts — such tactics appear increasingly likely. This is unfortunate. What we need at this point is not more nominations conflict, but a gradual de-politicization of the nomination process so that Presidents of either party can select the most qualified nominees who share their jurisprudential vision. I believe the Senate should have rapidly confirmed President Bush's nominees, and I hope (even if in vain) that the Senate will do the same for President Obama or McCain.

UPDATE: I won't rehash it all here, but I've posted extensively on the history of judicial nomination fights before. I summarized these posts (and provided links) in this post: "Judicial Nomination Fights -- Past and Present."

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Causes of the Defeat of Proposition 98:

In my last post, I considered the likely impact of the passage of California Proposition 99. In this one, I consider the causes of the crushing defeat of Proposition 98 - the initiative that, unlike 99, would have given property rights some real protection against takings.

There were two major causes of Prop 98's defeat. One was the sponsors' mistake in combining the popular cause of restricting eminent domain with a far less popular phaseout of rent control. I have already written on this one at length (see here and here), and don't have much to add. I would only emphasize the importance of not repeating this error in the future. As I noted in the two earlier posts cited above, California property rights advocates made a similar mistake with Proposition 90 back in 2006. Hopefully, they won't commit the same error a third time.

The second and more unusual cause of 98's defeat was the presence of Proposition 99 on the ballot. As I have documented at some length in earlier posts in this chain (e.g. - here), Prop 99 purports to protect property rights against takings, but actually doesn't. It passed easily, with 62% of the vote. Voters concerned about eminent domain could easily have been fooled into believing that Prop 99 would "solve" the problem without needing to vote for the more controversial Prop 98. This would be consistent with the pattern in many other states, where voters have been persuaded that Kelo-style takings have been banned by new laws that are actually ineffective (albeit usually legislatively enacted laws rather than referenda).

The interesting question is: What was the relative importance of the two factors? Perhaps the impact of Prop 99 was minor relative to that of the rent control issue, or vice versa.

Anything approaching a definitive answer would require detailed survey data. Nonetheless, the available evidence suggests that Prop 99 probably did make a major difference to the outcome. One way of measuring the difference it made is to compare Prop 98 (which got only 39% of the vote) with Proposition 90, the 2006 California property rights initiative that was defeated by a narrow 52-48 margin.

Like Proposition 98, Prop 90 combined restrictions on eminent domain with other measures that are anathema to many liberals. Its "regulatory takings" provision would have required the government to compensate property owners for any diminution in the value of their land resulting from the enactment of new regulations in a whole host of areas, including many environmental regulations. New rent control laws (including tightening of existing ones) would also have required compensation. In that respect, Proposition 90 limited rent control as well, though not as much Prop 98 would have done. Because of its broad sweep, Proposition 90 should have been much more offensive to liberal (and many moderate) voters than Proposition 98, which would only have affected rent control in addition to its primary purpose of banning Kelo-style takings. Yet Prop 98 was defeated overwhelmingly, while Prop 90 nearly prevailed.

It would probably be a mistake to assume that the presence of Prop 99 on the ballot accounts for all of the difference between the narrow defeat of Proposition 90 and the anti-98 landslide. But it may well account for the lion's share. Indeed, the nine point difference between the Pro-98 vote and the pro-90 vote may even understate the impact of 99. Because of its narrower scope, Proposition 98 was intrinsically offensive to fewer voters than Prop 90 was and its "natural" level of support might well have been higher than the 48% that Prop 90 got.

Finally, it's worth reemphasizing the point that Proposition 99 would likely have defeated Prop 98 even if the latter had gotten a majority; this would have occurred because Section 9 of Proposition 99 would have overrriden Prop 98 so long as the former got more votes. To outpoll Prop 99, 98 would have had to get more than 62% of the vote. As I explained in my last post, even a perfectly drafted Prop 98 would probably have been negated by 99. Some commenters on my previous post claim that many people might have voted for 99 solely to defeat 98's rent control provision, thereby implying that a better-drafted 98 would have outpolled 99. This is theoretically possible, but highly unlikely. First, the 62% that Prop 99 got is pretty similar to that achieved by anti-Kelo initiatives in other states, including liberal states politically similar to California. That suggests that there wasn't any large additional increment of voters who supported 99 solely to negate 98.

Moreover, the Pro-99 forces didn't stress Section 9 in their ads as a reason to vote for 99; they instead emphasized the (false) claim that 99 would protect homeowners. Anti-98 ads did stress rent control as a reason to vote against 98 itself, but did not emphasize how 99 could be used to block it.

Those few voters knowledgeable enough to know about Section 9 and its effects were also probably knowledgeable enough to know that - by election day - Prop 98 had no real chance of winning, according to polls. Such few voters as did support 99 solely because of its potential impact on 98 were likely offset by pro-98 voters who opposed 99 solely for the opposite reason. In a world where the vast majority of citizens are ignorant of very basic facts about politics and public policy, I find it highly unlikely that any significant number of voters read and understood the highly technical Section 9 and voted for or against 99 on that basis. If there is polling data indicating the contrary, I would be very interested to see it, however.

Ultimately, it's difficult to gauge the relative impact of Prop 99 and rent control on the defeat of 98 without good survey data. Quite likely, both were important. But the available evidence suggests that 99 made a real difference. At the very least, it probably turned what might have been a close defeat for 98 into a landslide. It's possible that the rent control issue would have defeated 98 even in the absence of 99. But the reverse is also likely: Prop 99 might have caused the outright defeat of 98 even in the absence of the rent control provision. And even if a rent control-free Prop 98 had gotten a majority, it would very likely have been negated by Section 9.

For now, this will be the last post on Propositions 98 and 99. However, I will try to get survey data on voter attitudes to the two propositions, and will return to the question if that data contains any interesting revelations.

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Robert Novak Says McCain Might Appoint "Moderate" Justices:

From CNSNews:

If Sen. John McCain (R-Ariz.) is elected president, he might find it difficult to move a conservative Supreme Court nominee through the U.S. Senate, according to columnist Robert Novak. Novak was speaking in response to a question from Cybercast News Service at conservative event in Trenton, N.J., last Friday.

At the "Defending the American Dream Summit" organized by Americans for Prosperity (AFP), Novak -- a long-time Washington political reporter and conservative commentator -- painted a bleak political landscape for the Republican Party and conservatives in the near term.

Novak, the featured speaker at the event, predicted that the GOP will lose four seats in the Senate. As a result, said Novak, a President McCain will be "strongly tempted" to refrain from selecting a Supreme Court nominee such as Chief Justice John Roberts or Associate Justice Samuel Alito.

Instead, McCain might settle on a nominee more like Anthony Kennedy, often the swing vote on the current court and who is viewed as more moderate than either of President Bush's nominees, said Novak.

Via Fidelis (which wants John Cornyn or Edith Jones).

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AALS Mid-Year Meeting: The Changing Roberts Court:

This is the first of a few posts summarizing some of the plenary panels from the AALS mid-year Conference on Constitutional Law, currently underway in Cleveland, Ohio.

The opening plenary panel focused on “The Changing Roberts Court.” Moderated by Lori Ringhand (UGeorgia), the panel featured Eric Segall (Georgia State), Erwin Chemerinsky (Duke/UCIrvine), and Lee Epstein (Northwestern). Soon-to-be-Dean Chemerinsky led off noting that every GOP presidential candidate for the past 40 years has sought to shift the Supreme Court through the nomination of conservative jurists. Such efforts have had little effect, Chemerinsky observed, until now. With the confirmation of Chief Justice Roberts and Justice Alito, he suggested, there is now a fairly reliable conservative majority on the court as, on most issues, Justice Kennedy appears to be “anchored” to the conservative majority.

Chemerinsky’s thesis, as he described it, is that the Roberts Court should really be called the “Reagan Court,” because the unifying element of the Court’s conservative leanings is not a commitment to any particular conservative judicial doctrine (e.g. originalism), but a commitment to the political and ideological positions espoused by conservative Republicans in the 1980s. Further, Chemerinsky argued, the Court is not particularly “minimalist” or restrained in its approach, particularly when Justice Kennedy joins the conservative bloc. According to Chemerinsky, the Court’s opinion in cases like Parents Involved and Garcetti v. Ceballos are evidence of a conservative majority that is quite willing to push a conservative agenda quite aggressively, often with little regard for precedent. I think Chemerinsky overstates his case (see my take on last term here) and, as he readily acknowledged, the current term has not produced the same sort of results (at least not yet).

In calling the Court the “Reagan Court,” Chemerinsky explained, he means that (so long as Kennedy is willing) this is a court majority that consistently sides with the government over individuals when individual liberties or civil rights are at stake. As example, Chemerinsky points to the school desegregation, abortion, and religion cases. Yet this is a difficult position to square with cases like Wisconsin Right to Life, in which the conservative justices sided with the ability of non-profit groups and independent voices to challenge incumbent politicians and government regulators.

Another thing that makes this the “Reagan Court,” Chemerinsky explained is its pro-business orientation. This is “the most pro-business Supreme Court since 1937.” Yet as we have discussed before on this blog, this charge misrepresents the nature of the Roberts’ Court’s business docket. For instance, Chemerinsky cites the Court’s antitrust decisions (e.g. Leegin) – a subject he admitted he “know[s] nothing about” – for this proposition, yet this is a pro-consumer, anti-competitor decision. It’s an anti-regulation decision, to be sure, but that does not make it a “pro-business” court.

Finally, Chemerinsky said this is the “Reagan Court” because it consistently “favors executive power over separation of powers.” Certainly here Chemerinsky’s claim is quite strong. The Reagan Justice Department advanced fairly aggressive notions of executive power (although not always as aggressive as those of the current administration) and the conservative majority is certainly sympathetic to such arguments, particularly in the national security context. Here, however, it is worth noting that Justice Kennedy has been less “anchored” to the four conservative justices in this area than in many others and in lower profile, administrative law cases (such as Mass v. EPA) the Court has been anything but deferential to the executive branch.

Eric Segall was next, and argued that the “Roberts Court” should be called the “Kennedy Court,” as he is the “key swing vote,” and the only thing standing in the way of overturning numerous precedents of the Warren and Burger Courts, particularly in the context of individual liberties and criminal procedure. As Segall noted (as have many before), Justice Kennedy is the swing vote in a high percentage of cases particularly those divided on ideological grounds. While this term is shaping up quite differently, last term Justice Kennedy was almost never in dissent. Further, in many key areas, Justice Kennedy has authored the majority opinion for the Court. In many ways, Segall notes, Justice Kennedy is far more influential and powerful on the current Court than was Justice O’Connor. Insofar as Justice Kennedy has appeared to be less influential in the current term, Segall suggested, this is because the Court has (thus far) decided fewer “divisive” cases (defining “divisive” as 5-4 decisions split on ideological lines).

Segall’s view is that “there are two Justice Kennedy’s serving on the Supreme Court.” The first is a fairly traditional justice, a moderately conservative justice who is a “formalist” in that his opinions “pay lip service to the traditional approaches to constitutional interpretation.” The other Justice Kennedy, Segall noted, is the “romantic” Justice Kennedy, who grounds his opinions in sweeping first principles and focuses on the policy implications of his decisions. This latter Justice Kennedy is the one who “infuriates Justice Scalia and other members of the right wing” with his flowery language, citations to foreign sources of law, and failure to ground decisions on text, original meaning, precedent or tradition. According to Segall, this Justice Kennedy is refreshingly “transparent,” because he openly acknowledges that many decisions cannot be decided without recourse to philosophical principles or policy preferences. In cases such as Lawrence v. Texas or even U.S. Term Limits v. Thornton, he relies upon meta-principles and eschews “hiding behind indeterminate legal sources.” Indeed, some of these decisions don’t even read like Supreme Court opinions, but ruminations on political principle. In Segall’s view, Justice Kennedy is more consistent than many presume, in that his preference for more traditional or romantic approaches to decisions is rather stable, but it also keeps him in the middle for many important cases. So, Segall concluded, “in order to understand the Court, we’re going to have to understand the man.”

Lee Epstein offered a slightly different view: “The Roberts Court So Far: Why Conservatives Should Continue to Yearn, and Liberals Should Continue to Fear.” In her view, the Roberts Court is more of a continuation of the “Republican Court” that was ushered in by President Nixon’s appointments beginning in 1969 than the beginning of a new conservative or Reaganite judicial era.

Unlike the other panelists, Epstein’s approach was more quantitative, focusing more on the larger trends than on individual doctrinal developments or individual high-profile cases. From this perspective, Epstein argued, that the Court began to tilt in a “conservative” direction beginning in 1969, and has remained fairly conservative since. Based on the overall percentage of cases decided in a “liberal” or “conservative” way, the Court was reliably liberal during the Warren Court, and has been fairly reliable since. Similarly, she notes, there has been relatively little change in the ideology of the median justice on the Court over the past few decades.

While Justice Kennedy is slightly to the right of Justice O’Connor on some issues, there are other instances where he was to her left, and joined with the liberal justices to form majorities while she was still on the Court (see, e.g., Roper v. Simmons. Another interesting observation is that while Justice Alito is more “conservative” than Justice O’Connor, this effect has been offset by Justice Breyer’s slight migration to the left in recent years, resulting in relatively little change in the Court’s overall ideological balance. Moreover, Epstein cast doubt on claims that key cases from last term would have come out differently had O’Connor remained on the Court.

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Eric Posner on Anti-Anti-Intellectuals: Eric Posner is relatively new to the blogosphere, but he has quickly become one of my favorite bloggers. Eric comments on Rick Hills' "Why I Am An Anti-Intellectual" post over at Convictions with a post entitled, "Anti-Intellectuals and Anti-Anti-Intellectuals."
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California Supreme Court unanimously denies stay in gay-marriage case:

The California Supreme Court has unanimously denied a request to stay its gay-marriage decision until after the November election. By the same 4-3 majority that approved gay marriage on May 15, it also denied a request for a rehearing in the case.

According to an earlier decision by state officials, gay couples can begin marrying in the state on June 17. It's unclear whether today's announcement will move up that date.

On Monday, state officials certified for the November ballot a proposed state constitutional amendment that would limit marriage to one man and one woman. It's now clear that the vote will occur after several thousand gay couples in California and around the country will have gotten married.

Related Posts (on one page):

  1. California Supreme Court unanimously denies stay in gay-marriage case:
  2. Other States Intervene in California Marriage Case:
  3. Gordian Knots, polyamory, polygamy, and tsunamis across the country:
108 Comments

Trying to debunk the internet rumors about Michelle Obama.—

As many of you know, there has been an ever-shifting internet rumor launched publicly by an extremely unreliable pro-Clinton blogger, Larry Johnson, that there is a video recording of Michelle Obama saying some intemperate things at Trinity United Church. The way that this story is being spread leads me to think that there is little or nothing to the rumors, which is why I haven’t posted on the issue here until now.

Until today, the rumors have been too vague to be debunked, but they have now become specific enough that the currently most prominent version of the rumor [offered by the pro-Clinton blog Hillbuzz] could potentially be determined to be false. A specific conference for the remarks has been specified: the 2004 Rainbow/PUSH Coalition Annual Conference starting on June 26, 2004.

In an attempt to get the information necessary to put this matter to bed, I drove over to the Rainbow/PUSH Coalition National Headquarters, which is in the opposite corner of my Hyde-Park/Kenwood neighborhood. I spoke with Robert (Bobby) Lewis, Director of Studio Services, who apparently handles the recordings of events.

Lewis said that the recording of events from 2005 and earlier was farmed out and most or all of the existing recordings (listed on the website) had not been conveyed in-house to the National Headquarters. He said that he did not know if the organization had a recording of the 2004 conference. In response to my more specific question, he said that the one-hour Saturday broadcasts on the 2004 Annual Conference (June 26, 2004, and July 2, 2004), which are listed on the website for purchase, are not available, since they come from the earlier outsourced period.

I was very surprised when he informed me that I was the first person to have contacted them about this matter. Given the furor on the internet, I suspect that many of you are skeptical about this claim, but he really seemed unaware of the flap. He wanted to know the name of the website that had the story about the conference. And at first, he thought I was talking about a panel on which Barack, not Michelle, had spoken. In manner, he was gracious and he didn’t seem to be particularly guarded or defensive.

As I write this, I am aware that it seems unlikely that Barack Obama’s campaign would not have scoped this out with Rainbow/PUSH long ago. Either the Obama campaign neglected to do so, or Rainbow/PUSH picked the right person to persuade outsiders that no inquiries were made, or — more likely — there was nothing to scope out.

I suggested to Mr. Lewis that he try to find a copy, since he was likely to get inquiries. He said that he planned to get on it right away, since I was probably only the first of many more requests.

I hope that if Rainbow/PUSH locates a copy they release it as soon as possible to prevent this rumor from snowballing. In its limbo state, this rumor does damage to all three candidates, as well as to the political process.

Given the tenor of comments I have seen elsewhere on this rumor, I have not turned on comments. If it proves to be false (or true), I will then post with open comments. Until then, the most civil discussion I’ve seen is here.

By the way, the Rainbow/PUSH Headquarters are just a few blocks from Barack Obama’s house and a few blocks from Louis Farrakhan’s house. When I drove past Obama’s house on the way home, there was an Obama for President sign on the front lawn of the house next door to the Obamas’s, but none visible on the Obamas’s house.

UPDATE: There are some anomalies in the story so far: according to the rumors, the Rainbow/Push conference was supposed to be held at Trinity United, yet schedules posted at Hillbuzz and elsewhere do not show the event as taking place at the church. Further, the schedule shows Michelle Obama as a "Special Guest," not a speaker. Last, if it wasn't at the church, why would the DVD have been on sale there? I remain highly skeptical that this story will amount to anything.

2d UPDATE: More on problems with this story: Does it seem at all plausible that anyone would go into a 30-plus minute racist rant during a "Woman's Luncheon" at the Sheraton Hotel, moderated by two mainstream local TV news reporters/anchors from the Chicago ABC affiliate? Consider also that Michelle Obama was listed only as a "Special Guest," not even listed as speaking (the Keynote Speaker for the luncheon was Jesse Jackson).

Here is the program for the luncheon:

12:00p.m ~ 2:00p.m.

SHERATON BALLROOM 1-7 Womans Luncheon

M.C.’s: Cheryl Burton and Karen Jordan, ABC 7

Keynote Speaker: Reverend Jesse L. Jackson, Sr.

Special Guests:

Shoshana Johnson, Retired United States Military

Michelle Obama, University of Chicago

And then somehow this supposed rant at a non-church event held at the Sheraton Hotel was for sale on the Trinity United website. Thus, I think that the most common version of the story (put forth by Hillbuzz) is almost certainly false.


Red Wine May Prevent Aging ....

According to this new study. So stock up on some cabernet to get through any unfortunate election news.

23 Comments

[Steve Bank, guest-blogging, June 4, 2008 at 11:49am] Trackbacks
Is Rangel’s Call for a Draft Tax-Driven?

House Ways and Means Chairmen Charlie Rangel has been one of the few politicians to dare call for reinstituting the draft during the current Iraq conflict. A veteran of the Korean War, Rangel has long advocated the draft as a way to supplement the troops in Iraq and elsewhere and to spread the sacrifice more equally. He also has said that it would have kept us out of the war in the first place. Nevertheless, a draft – and in particular a controversial draft – arguably would also serve another purpose: It would help advance Rangel’s tax policies.

One of the recurring themes in the wars discussed in our book, War and Taxes, is the influence of conscription on the rhetoric and reality of wartime taxation. A draft is itself an implicit in-kind tax, but it also serves as a form of moral impetus for the explicit adoption of more direct forms of taxation. During the Civil War, a steeply progressive (for the time) income tax was enacted by the Union close on the heels of the New York City draft riots of 1863 – perhaps the worst riots in American history to that point. Given the ability of the wealthy to avoid service by finding a substitute or paying a $300 commutation fee, the popular perception, as one newspaper declared, was that “the rich are exempt!” Politicians like Representative J.B. Grinnell called for high income tax rates so “that large class whose great care is to safely compound their hundreds of thousands should feel that there is a war and a demand which they have not yet felt on their purses and on their patriotism.”

The link between conscription and targeted income taxes on the rich has been even more explicit in the twentieth century. While the Revenue Act of 1917 was being crafted in World War I, Congress authorized a draft and began registration and conscription in the early summer. This was frequently invoked by proponents of higher income taxes during debates over the Revenue Act. Representative James Collier declared “We are going to conscript the dollars necessary to carry on this war. I believe when we send our young men to the front to bear the brunt of battle those who are beyond fighting age and who will not fall within the selective draft should make no complaints when they are called upon to defray the expenses of the war.” During the Korean War, Truman’s Treasury chief, James Snyder, made a similar statement when he testified before the Senate Finance Committee: “You passed a bill up here to draft boys of 18, to send them to war. I think it is just as important we draft some of the profits to help pay for the expenditures.”

Even though Rangel’s call for a draft seems unlikely to succeed (public opinion is firmly against) – we may be inching toward a de facto draft that already could be influencing tax policy. Recent reports indicate that Army “stop-loss” orders have increased dramatically during the past year. These are involuntary extensions of a soldier’s term of enlistment, often considered a backdoor draft among people who initially volunteered to serve (even though they may have legally agreed to such extensions, under a specified set of circumstances, as part of their terms of enlistment). Over the last five years, 58,300 soldiers have been forced to remain in the service beyond their enlistment term. The practice is apparently unpopular enough that it led to the making of a recent movie, called “Stop-Loss.”

This backdoor draft and the multiple tours of duty for reserves and national guardsmen may have helped to influence the recent House vote to fund veterans’ education benefits through a surtax on incomes in excess of $500,000. Representative Louise Slaughter said "We owe it to them. . . More than 40,000 of them are coming back with life-altering wounds. I don't see how we can do too much for them." The surtax has been dubbed a “Patriot Tax” in language reminiscent of the rhetoric used to sell the “Liberty Bonds” in World War I and the “Victory Tax” in World War II. While the surtax did not survive in the Senate version of the bill, it would not be surprising to see this rhetoric used to push further tax measures if stop-loss orders and other similar actions increase.

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McCain v. Obama:

For political junkies, this website has a very useful map showing who's leading in the latest polls in all of the states in the presidential and Senate races. The map is helpfully color-coded by strength of the candidate's lead. When you drag your mouse over a given state, it tells you when the last poll in that state was conducted, shows what the results were, and gives that state's presidential vote for the last four elections. The site is updated daily.

Right now, the site has Obama ahead in the electoral college, 287-227. It also has Democrats leading in enough states to produce a 58-42 Senate majority.

Note: the same site had John Kerry ahead in the electoral college through most of 2004, including in the days immediately before the election. The major problem was that the polls had Kerry winning Florida.

The site is only as good as the polls it relies upon, but it gives you a rough idea of where things stand at a given moment. I confess it's an almost daily stop.

UPDATE: Several commenters suggest an alternative site for looking at the state of the presidential race, www.fivethirtyeight.com, which uses weighted averages of polls taking into account things like pollster reliability and the age of the poll. While the site is interesting and contains much information of its own, I find it considerably less user-friendly. It also doesn't look at the Senate and House races. Finally, I'm leery of weighted averages since they raise difficult methodological problems. I prefer the electoral-vote.com approach, but no single site is perfect. Political junkies can judge for themselves which ones it's worth spending their time monitoring.

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Domestic Terror Courts?

Should the United States create domestic terror courts? My colleague Amos Guiora is testifying today before the Senate Judiciary Committee that it should. Here's a summary of his argument:

Considering how to handle terror detainees within the American justice system, there are three forum options: (1) treaty-based international terror courts, (2) traditional Article III courts, and (3) a hybrid option which I call “domestic terror courts.” This testimony discusses the feasibility of each forum and recommends domestic terror courts as the practical solution to detainee policy, as a legal regime for the trials of those detained post-9/11.

In response to the Supreme Court decision, Hamdan v Rumsfeld, 126 S.Ct. 2749 (2006), I have developed a model that enables the trying of terrorists while meeting judicial scrutiny by drawing on certain elements of the criminal law process. Incorporating elements of the American criminal law and criminal procedure paradigm, and drawing on the Israeli two-tiered system for the trying of terrorists, this testimony offers the forum of the domestic terror courts as a concrete recommendation for how to handle detainees post-Hamdan.

Furthermore, the testimony addresses the limits of the applicability of the criminal law process, particularly with respect to the right of detainees to confront their accusers. Detainee trials are largely based on intelligence sources whose identity cannot be disclosed. The lack of disclosure prevents full implementation of the Sixth Amendment confrontation clause.

Ultimately, my model balances the defendant's basic rights with equally legitimate national security considerations. Therefore, the domestic terror court option is the most practical and expedient policy solution, necessitated by an untenable tension between the understanding that some of the detainees present a genuine threat to American national security, and awareness that indefinite detention violates constitutional principles and fundamental concepts of morality.

In theory, domestic terror courts seems like a good idea to me. But I suspect there will be so much wrangling over the details that they will never get off the ground. His full testimony can be found here

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Is Climate Legislation a "Bill for Raising Revenue"?

This week the Senate is debating S.3036, the Lieberman-Warner Climate Security Act. A key feature of the bill is the creation of a cap-and-trade system for carbon dioxide emissions. Basically, the government will cap aggregate carbon dioxide emissions and allocate tradeable emission credits (or "allowances") to firms. The point of such a regime is to reduce the cost of emissions control by encouraging the greatest reductions from those firms that can reduce their emissions at lowest cost. Assuming the transaction costs of the trading regime are relatively low, firms with comparatively high emission control costs could purchase credits from firms with comparatively lower control costs.

A key issue in setting up any cap-and-trade is how to allocate the credits. One way is to "grandfather" existing firms, and allocate credits in proportion to current or past emissions. Another way (typically favored by economists) is to auction off the credits. This is one of the ways credits will be allocated under S. 3036. Specifically, carbon allowances will be auctioned off and the government will use the proceeds to invest in low-carbon technologies and attempt to offset energy price increases caused by the imposition of a carbon cap.

If enacted, S.3036 would generate substantial revenue for the federal government. This prompts a question from a reader: Why, then, is this not a "Bill for raising revenue" under Article I, section 7 of the Constitution (the "Origination Clause"), which requires that such bills "originate" in the House of Representatives? Good question, I thought. I don't teach this issue in my Constitutional Law class, and I'm a bit rusty on legislative procedure.

A super-quick (and superficial) web search reveals an answer: Bills that are primarily for other, non-revenue-generating purposes, that have the incidental effect of raising revenue, don't count. So, for example, under United States v. Munoz-Flores, a bill imposing a "special assessment" on some criminals under the Victims of Crime Act of 1984 was not a "Bill for raising revenue" that needed to originate in the House. Given this holding, and the Supreme Court's general tendency to defer to Congress on such questions, it appears that an Origination Clause challenge to a climate cap-and-trade bill that originated in the Senate would not be very fruitful.

[NOTE: Post edited to fix embarrassing typo/word omission.]

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Why California's Proposition 99 is a Lot Worse than Nothing:

Yesterday's California returns show that Proposition 98 - the referendum initiative that would have imposed real restrictions on eminent domain and also phased out rent control - has been overwhelmingly defeated by a 61% to 39% margin. The rival Proposition 99 - an initiative sponsored by local governments and other pro-condemnation interests that only pretends to protect property rights - passed easily by 62 to 38. I will have more to say about the failure of Prop 98 in a later post. Here, I focus on Prop 99. Unfortunately, it not only fails to protect property rights against takings, but is likely to make things worse than they were before.

For reasons I outlined in my LA Times op ed, Prop 99 won't actually give property owners any real protection. In brief, the protections of Prop 99 only apply to "owner-occupied homes" where the owners have resided for at least 1 year, thereby categorically excluding the 42 percent of California households that are renters. And even owner-occupied homes remain vulnerable to condemnation because of Prop 99's many loopholes. California is one of the nation's worst abusers of eminent domain, and Prop 99 will do nothing to change that. Instead, it has made things worse in four ways.

I. Blocking Effective Eminent Domain Reform by Fooling Voters into Believing that the Problem has been "Solved."

The passage of Proposition 99 might persuade at least some California voters that the eminent domain problem has been "solved" and that no further action is necessary. As I document in Part III of my forthcoming Minnesota Law Review article on post-Kelo eminent domain reform, the enactment of fake reform laws in other states has fooled many voters (about one third of all those who express any opinion at all about the effectiveness of eminent domain reform in their states) into believing that effective reforms have been enacted. When such deception succeeds, it can greatly reduce public demand for effective reform and make its enactment difficult or even impossible.

II. Contributing to the Defeat of Proposition 98.

Proposition 99 probably contributed to the defeat of Prop 98, an initiative that really would have protected property rights. Given the large margin of Prop 98's defeat, it is by no means certain that it would have passed had there not been also been a bogus anti-Kelo proposition on the ballot. But it is a possibility.

III. Forestalling Potential Judicial Protection for Property Rights.

Third, as Tim Sandefur astutely pointed out, Prop 99 will "make things far worse . . . because the courts would interpret it as meaning that Californians did not want more serious protections for property rights." This is a subtle point that I myself didn't understand the first time Tim made it. Proposition 99 is an amendment to the California Constitution, and as such has to be taken into account by state courts in interpreting the protection that Constitution gives property owners against eminent domain. Before the passage of Prop 99, the California Constitution - like most state constitutions - merely had a general requirement that takings must be for a "public use." California courts had usually interpreted this language broadly to allow the government to condemn property for almost any reason. However, the possibility still existed that they would revert to a narrower and more natural interpretation - that the term "public use" excludes many takings that transfer property from one private owner to another. Many other state supreme courts - including those in liberal states such as Illinois, Michigan, and Washington - have done precisely that. Over the last 15 years, state supreme courts have generally been moving in this direction, with half a dozen new states banning Kelo-style takings under their state constitutions, and only one new case (the Connecticut Supreme Court's ruling in Kelo itself) going the other way.

By defining the scope of protection for property owners as precisely as it does, Proposition 99 forecloses the possibility of such a judicial development in California. The state Supreme Court is unlikely to apply the generic term "public use" in a way that bans takings that would be permissible under the much more specific and detailed language of Proposition 99. In effect, Prop 99 incorporates into the California Constitution an extremely broad definition of "public use" that allows state and local officials to condemn almost any property they want.

IV. A Blueprint for the Defeat of Future Property Rights Initiatives.

Perhaps worst of all, Prop 99 is an extremely clever blueprint for the defeat of property rights referendum initiatives in other states. Recall that it was initially put on the ballot primarily - if not exclusively - for the purpose of defeating Proposition 98. In the end, Prop 98 was defeated at least in part because of its sponsors'own mistakes, such as the decision to package eminent domain restrictions with a phaseout of rent control.

But it is important to recognize that Proposition 99 would likely have nullified 98 even if the latter had been perfectly drafted and had passed with a strong majority. Section 9 of Prop 99 would have overridden 98 so long as Proposition 99 had passed with the larger majority of the two. As a practical matter, even the best possible eminent domain reform initiative in California would have found it difficult to beat the 62% of the vote that Proposition 99 received. Rationally ignorant voters would be unlikely to figure out the interconnection between the two initiatives, and the more effective of the two would have been the subjected to a well-funded "no" campaign backed by local governments and other interest groups. A well-drafted property rights initiative could still pass in the face of such opposition (as happened in ten other states). But it probably could not pass by as large a margin as a rival initiative that doesn't face such strong opposition.

Up until now, eminent domain reform laws passed by referendum have generally been far stronger than the often ineffective ones enacted by state legislatures. If the Proposition 99 model is copied by pro-condemnation interests in other states, that might well change.

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"Why I Am an Anti-Intellectual": NYU lawprof Rick Hills has a highly entertaining post on that topic over at PrawfsBlawg. Don't miss the comments.
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Tuesday, June 3, 2008

Obama's Speech Tonight.--

Here are the main foreign policy comments in the prepared text of Barack Obama's Minnesota speech tonight (via Drudge):

And it's not change when he [John McCain] promises to continue a policy in Iraq that asks everything of our brave men and women in uniform and nothing of Iraqi politicians — a policy where all we look for are reasons to stay in Iraq, while we spend billions of dollars a month on a war that isn't making the American people any safer.

So I'll say this — there are many words to describe John McCain's attempt to pass off his embrace of George Bush's policies as bipartisan and new. But change is not one of them.

Change is a foreign policy that doesn't begin and end with a war that should've never been authorized and never been waged. I won't stand here and pretend that there are many good options left in Iraq, but what's not an option is leaving our troops in that country for the next hundred years — especially at a time when our military is overstretched, our nation is isolated, and nearly every other threat to America is being ignored.

We must be as careful getting out of Iraq as we were careless getting in - but start leaving we must. It's time for Iraqis to take responsibility for their future. It's time to rebuild our military and give our veterans the care they need and the benefits they deserve when they come home. It's time to refocus our efforts on al Qaeda's leadership and Afghanistan, and rally the world against the common threats of the 21st century — terrorism and nuclear weapons; climate change and poverty; genocide and disease. That's what change is.

Change is realizing that meeting today's threats requires not just our firepower, but the power of our diplomacy — tough, direct diplomacy where the President of the United States isn't afraid to let any petty dictator know where America stands and what we stand for. We must once again have the courage and conviction to lead the free world. That is the legacy of Roosevelt, and Truman, and Kennedy. That's what the American people want. That's what change is.

There are hints here that Obama is starting to become more responsible on Iraq ["We must be as careful getting out of Iraq . . . ."].

Also, he artfully repeats the "hundred years" criticism of McCain in a way that may be misleading but is not false (since here he ties it to manpower needs, not necessarily continuing violence).

He is also very gracious in comments about Hillary Clinton.

UPDATE: Snarky in the comments points out that the language of "careful" withdrawal doesn't mean what I thought it meant. Obama has used much the same language to refer to rapid, phased withdrawal from Iraq:

September 12, 2007

Let me be clear: there is no military solution in Iraq, and there never was. The best way to protect our security and to pressure Iraq’s leaders to resolve their civil war is to immediately begin to remove our combat troops. Not in six months or one year - now. We should enter into talks with the Iraqi government to discuss the process of our drawdown. We must get out strategically and carefully, removing troops from secure areas first, and keeping troops in more volatile areas until later. But our drawdown should proceed at a steady pace of one or two brigades each month. If we start now, all of our combat brigades should be out of Iraq by the end of next year

January 21, 2008

"I want to be as careful getting out as we were careless getting in, but I want to make sure that we get all of our combat troops out as quickly as we can safely."

March 17, 2008

What I do believe is we've got to be as careful getting out as we were careless getting in. And that means, I believe, a phased redeployment, with a timetable, with a pace of about one to two brigades per month, pulling our combat troops out, but also redoubling our diplomatic strategy inside Iraq, as well as with the regional players, including Iran and Syria.

Given that Obama was wrong on the main foreign policy issue of his brief time in the Senate (whether the surge would improve the conditions in Iraq), I keep hoping that his obvious intelligence will lead him to recognize what is going on in Iraq and adjust his policies accordingly.

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Are Main Law Reviews at the Top 50 Law Schools Considering Submissions During the Summer?

If you're on a main (non-specialty) law review at a top 50 law school, can you please post a comment indicating (1) what journal you're on, (2) whether you folks are considering article submissions during the summer, which is to say whether you are prepared to make offers during the summer (even if more slowly than normal), and (3) if you aren't considering submissions during the summer, when you close and when you reopen? Both our legal academic readers and I myself would be much obliged. Thanks!

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Talks to a Few Federalist Society Student Chapters Next Spring:

I won't be teaching most of next Spring, and my boys will be a little older and (I hope) less of a handful for my wife to mind; so I'm hoping that I could do a bit more talking to Federalist Society student groups, something that I enjoy but that I have unfortunately not been able to do for the last few years.

My hope, though, is that I could avoid taking two-day-long trips across country just to give one talk. So if you are in a city with several law schools, would like to invite me to talk to your Federalist Society, and can coordinate things with a few other chapters so that I can do three or four talks in two or three days, please e-mail me at volokh at law dot ucla dot edu.


[Kirk Stark, guest-blogging, June 3, 2008 at 4:04pm] Trackbacks
Taxes and Defense Spending as a Percentage of GDP:

Many thanks to all those who have replied to my two earlier posts relating to our new War and Taxes book. Several people have commented on the issue of defense spending as a percentage of GDP. We thought it might be useful to provide some data on this point. It is of course the case that military spending as a percentage of GDP is nowhere near the levels of WWII and remains low as compared to levels in other wars. According to the historical tables released in connection with the administration’s 2009 budget proposals, defense spending reached a high of 37.8 percent of GDP during World War II. During the final year of the Korean War, defense spending as a percentage of GDP topped out at 14.2 percent. It seems unlikely that we will ever see defense spending at those levels again.

Several of the replies to our earlier posts have remarked on the comparison between the war in Iraq and the war in Vietnam. Defense spending as a percentage of GDP during the war in Vietnam peaked at 9.5 percent, while only recently reaching the 4 percent mark during the war in Iraq. In constant 2000 dollars, absolute spending on national defense peaked at $421 billion during Vietnam (1968), while the same figure for the war in Iraq is $423 billion (2007). As for the larger budget picture, during Vietnam the federal budget deficit as a percentage of GDP peaked at 2.9 percent in 1968. In 2004, the federal budget deficit reached 3.6 percent of GDP. Again, these data all come from the president’s historical budget tables.

I do not want to speak for my co-authors on this point, but in my view there is a strong parallel between Lyndon Johnson and George Bush with respect to the war financing question. As discussed at length in Chapter 5 of our book, Johnson refused to pursue a tax increase to help pay for the war in Vietnam in 1965 and 1966, despite the urging of his economic advisors, because he feared doing so would endanger political support for his cherished Great Society programs. Similarly, President Bush has no interest in paying for the war in Iraq out of new taxes because doing so would necessarily involve repudiating his own chief domestic priority – the 2001 and 2003 tax cuts. Thus, in both cases, we see an administration seeking to preserve its own domestic policy agenda at the expense of future taxpayers. Eventually, of course, Johnson embraced a 10 percent surtax to help finance the Vietnam War, but only with extreme reluctance. I have little doubt that Johnson would’ve preferred to foist the entire expense on future generations if he had had the choice. It seems unlikely that President Bush will embrace new war taxes anytime in the next six months, thus leaving the question of how to pay for the war in Iraq to his successor(s).

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Clinton says she's open to being Obama's VP.--

AP reporting:

Hillary Rodham Clinton has told congressional colleagues she would be open to becoming Barack Obama's vice presidential nominee, saying she would consider it if it would help Democrats win the White House.

Clinton, a New York senator, made the comment on a conference call with other New York lawmakers Tuesday, according a participant on the call.

When I raised the issue last month, some seemed skeptical that Hillary would want the job.

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The Top 100 Criminal Justice Blogs: Someone (I can't tell exactly who) compiled a list here. The list is perhaps a bit quirky, and is missing a few great blogs. Still, it's worth checking out some of the links if you're looking for some new blog reads in that area.
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Airport Security Stories:

The Daily Courier (Kelowna, British Columbia) reports:

A pendant in the shape of an antique Colt 45 pistol almost landed Marnina Norys in the hoosegow on Monday.

The 39-year-old Toronto resident was caught by alert Kelowna Airport security wearing the 1.75-inch sterling silver pendant on a chain around her neck.

“That‘s a replica,” an unidentified security agent told the harried traveller as if she would understand that replica weapons, even miniaturized pieces of jewelry, are not allowed.

Her jewelry posed no threat, responded Norys, and could hardly be used to hijack an airplane. “It‘s what it represents,” said the agent.

“That‘s censorship, not security,” an incredulous Norys said before she was told she would have to put the necklace in her checked baggage.

For a photo of the pendant, see here.

Likewise, see this BBC story, which also includes a photo (thanks to for the pointer):

A man wearing a T-shirt depicting a cartoon character holding a gun was stopped from boarding a flight by the security at Heathrow's Terminal 5.

Brad Jayakody, from Bayswater, central London, said he was "stumped" at the objection to his Transformers T-shirt.

Mr Jayakody said he had to change before boarding as security officers objected to the gun, held by the cartoon character.

Airport operator BAA said it was investigating the incident....

Mr Jayakody said he had to strip and change his T-shirt there before he was allowed to board his flight.

"I was just looking for someone with a bit of common sense," he said.

"It's a cartoon robot - what threat is it to security or offensive to anyone at all?"

Not quite as nasty as the incident in 2006 in which an Iraqi-American man was apparently ordered to remove a T-shirt with Arabic script on it, but pretty bad nonetheless, if the stories are accurate.

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York University (Canada) Student Government Apparently Banning Anti-Abortion Advocacy:

From the National Post:

Gilary Massa, vice-president external of the York Federation of Students, said student clubs will be free to discuss abortion in student space, as long as they do it "within a pro-choice realm," and that all clubs will be investigated to ensure compliance.

"You have to recognize that a woman has a choice over her own body," Ms. Massa said. "We think that these pro-life, these anti-choice groups, they're sexist in nature ... The way that they speak about women who decide to have abortions is demoralizing. They call them murderers, all of them do ... Is this an issue of free speech? No, this is an issue of women's rights."

The school's administration condemned the decision as contrary to its academic mission....

Ms. Massa said the new policy would not apply to religious groups that may be opposed to abortion on doctrinal grounds. Rather, it was focused on groups, whether student or external, "whose sole purpose is to provide the anti-choice side."

"What is happening is anti-choice groups coming on to campus under the guise of debates or through student clubs, to promote anti-choice sentiments, and then student unions responding to it, and then receiving very organized backlash ... A lot of these groups are funded and organized under a larger organization," Ms. Massa said ....

The situation at York came to a crisis in March, when a speaker ... came to debate abortion with a member of the school's Free-thinkers, Skeptics and Atheists club.

The York Federation of Students (YFS) executive, fearing the effects of gruesome imagery and hostile argument, hastily voted to cancel the event, which prompted the administration to publicly declare its support for free speech and provide an alternate venue....

Meanwhile, similar controversies are unfolding across Canada, with anti-abortion groups at Capilano College, the University of British Columbia-Okanagan, Lakehead University and Carleton University stripped of official club status and funding, at least once by fiat of a single member of student council. Some clubs have regained status, while others appealed their cases to human rights commissions.....

The Canadian Federation of Students has issued a resolution supporting such moves: "Be it resolved that member locals [of the CFS] that refuse to allow anti-choice organizations access to their resources and space be supported. And further, be it resolved that a pro-choice organization kit be created that may include materials such as a fact sheet, buttons, contact information for local pro-choice organizations and research on anti-choice organizations and the conservative think-tanks that fund them[.]" According to the story (which was published last week), the proposed York policy was to have been voted on this past weekend; Ms. Massa was "confident that it'll pass." For a view in support, see this letter from the student rights co-ordinator of the Continuing Education Students' Association of Ryerson, Toronto: "Anti-choice groups actively attack women's autonomy over their own bodies and lives. This is flagrant sexism. And sexism is not a mere 'thought crime' as the editorial asserts, but rather is a violation of the Ontario Human Rights Code because it is a serious and systemic problem that has consistently subjugated women all throughout history. I commend the YFS for upholding the rights of students on the York campus and women everywhere by taking a stand against sexism and hate speech."

Finally, from Michael Payton, a pro-choice student who participated in the debate mentioned above: "I think it's outrageous that they do this when students are away for the summer and when they can't really do anything about it .... This isn't the right of the student government to be deciding what students are allowed to hear.... When the YFS says they believe in free speech, they believe in free speech for them, for the positions they hold, not for freedom of speech for positions they disagree with."

I should note that the Canadian model of student government seems to be that a student union (in this instance, "Local 68, Canadian Federation of Students") is selected by the students, and apparently views itself as a private organization, much as unions are in America. But it exercises what in America would be seen as student government authority, controlling access to property provided by a public university.

Two years ago, much the same was done at Carleton University, also in Ontario. Thanks to Nicholas Nugent for the pointer.

UPDATE: Mark Steyn reports that Gilary Massa is a hijab-wearing Muslim woman, and a Google search (thanks to Bill Poser) suggests the same. This strikes me as odd, given that it appears that traditional Islam generally condemns abortion (some Islamic sites I checked seem to echo this). While some strands apparently do not brand early-term abortion a crime against Islamic law, they still condemn it as presumptively improper. Still, of course Ms. Massa is entitled to hold religious views that are contrary to those of mainstream traditional Islam (assuming I've correctly grasped the traditional Islamic view) and consistent with mainstream traditional Islam in other ways.

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OOPS!

[Oops indeed - hoist by my own petard. I've corrected the typo ("sam-sex marriage") below.DavidP]
For connoisseurs and aficionados of the NY Times "Corrections" page (and I am definitely among that number), it doesn't get much better than this, from Monday's edition (June 2):

"An article on Saturday about attorneys general from 10 states asking the California Supreme Court to stay its decision legalizing same-sex marriages misstated the given name of the governor of New York, who last week ordered state agencies to recognize same-sex marriages performed elsewhere. He is David A Paterson, not James."

You called the Governor of New York "James Paterson"?! and your editors didn't catch it?!

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Christian Preachers Allegedly Stopped by Police from Handing out Bible Extracts in Muslim Neighborhood in England:

So reports the Birmingham Post. As is often the case in these incidents, the facts are disputed, but it does seem like even the police department is acknowledging that the police officer didn't act entirely properly:

Two Christian preachers who claim they were stopped from handing out Bible extracts in a Muslim area of Birmingham are calling on police to state clearly their policy on freedom of speech.

Arthur Cunningham and Joseph Abraham, from the Grace Bible Fellowship Church, in Saltley, had been distributing leaflets in nearby Alum Rock when a police community support officer (PCSO) intervened.

The pair claimed the PCSO warned them to leave the area as they were committing a hate crime by trying to convert Muslims.

West Midlands Police has investigated the complaint and said the officer intervened with the best of intentions to defuse a “heated argument”.

The force, however, did give the PCSO “guidance” around what constitutes a hate crime after the incident.

But the two Christians claim that residents in Alum Rock still believe they are not permitted to preach in the neighbourhood as the police have not told them otherwise....

The Christians claimed they were warned by the PCSO to leave the area. They alleged he said: “If you come back here and get beat up, well you have been warned.”

They also claimed that the Muslim PCSO started ranting at them about George Bush and American foreign policy when he realised that the were from the US. The pair have demanded an apology and damages....

A West Midlands Police spokeswoman said the complaint had been investigated by the force. She said: “The investigation concluded that the PCSO acted with the best of intentions when he intervened to diffuse a heated argument between two groups of men.”

The spokeswoman added that following the investigation the PCSO had been offered “guidance around what constitutes a hate crime as well as his communication style”....

The police officer involved is apparently PCSO Naeem Naguthney, who apparently helped found the local branch of the National Association of Muslim Police. On a brighter note, the Birmingham Evening Mail reports:
Fears that no-go areas for Christians were emerging in British towns and cities were expressed recently by the Bishop of Rochester.

Yesterday, members of the Church of England, Catholic and Islamic faiths gathered together in a bid to dispel the fears....

Father Bernard Kelly ... said: "There's been a great deal of work going on around here to bring the community together.

"We have young Muslim children who come to the church at Easter and Christmas and take part in nativities and plays.

"Muslim families have no problem in sending their children to Christian schools here, which I think says a lot about people's views and the way the community is integrated."

Toby Howarth, the Bishop of Birmingham's inter-faith adviser, said: "We are worried the message has been sent out that Alum Rock is a no-go area and Christians are being told to leave.

"We want to dispel this myth and put on record that there are really good relationships here between different faiths."

Mohammed Yaqub, who is helping to form the Alum Rock Residents' Association along with two churches, said: "I don't think there is a problem with Christians and Muslims here.

"It's the first time we have created a residents' association here and that's due to Father Kelly, Christians and Muslims working together."

Mr Yaqub, a Muslim who works as a volunteer for the chaplaincy at Heartlands Hospital, said the preachers who were stopped had "the right to free speech"....

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Obama clinches; Dow Jones Average drops 72 points in 9 minutes.--

At 1:23pm ET, an AP story was released, reporting that Hillary Clinton would concede tonight because Barack Obama has clinched the nomination. [Although I don't have the original timestamp for the more definitive AP story that their delegate tally showed that Obama had won, the earliest timestamp I've found so far is Breitbart's at 1:26pm ET. That may well be the more relevant trigger.]

At 1:23pm, the Dow Jones Industrial Average, which was at 12,493 and had been marking time for hours, immediately started dropping [at 1:25, it was at 12,483]. In 9 minutes (1:32) [after 1:23], it had dropped 72 points to 12,421. After another 23 minutes (1:55), it had fallen another 53 points, resulting in a 125 point drop in 32 minutes. It then stabilized, indeed rebounding a bit.

This is not a particularly large drop (it's less than 1%), but the probable trigger was much clearer this time than for market responses to other primary wins and losses.

UPDATE (3:25pm): In the comments below, several people seem to be attributing the sudden drop to Bernanke's speech. While such a delayed reaction is possible, the juxtaposition I noted seems more likely. Here are two stories from earlier today on the market's response to Bernanke's speech, which seemed to be positive:

Wall Street moves higher after Bernanke speech

3 hrs ago - Wall Street rose tentatively Tuesday as investors were torn between troubling fears about inflation and more reassuring signs that the U.S. economic downturn is nearing an end. Federal Reserve Chairman Ben Bernanke reiterated expectations that the economy will rebound during the second half due to interest rate cuts, Fed loans to banks and tax rebates. But, the Fed chief, in a speech via satellite to a conference in Barcelona, Spain, said the economy faces headwinds with rising prices for food and energy - a signal that interest rates will remain on hold.

Wall Street opens higher after Bernanke speech

5 hrs ago - Wall Street opened modestly higher Tuesday after Federal Reserve Chairman Ben Bernanke reiterated expectations the economy will improve later this year. After the central bank's recent interest rate cuts, loans to banks and tax rebates, the second half of the year should bring "somewhat better economic conditions," Bernanke said in a speech in Spain. The economy faces headwinds, however, and the inflation picture remains uncertain, he said, indicating that the Fed still intends to keep interest rates on hold.

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Brigitte Bardot Convicted

"of provoking discrimination and racial hatred for writing that Muslims are destroying France," and ordered to pay nearly $25,000 in damages and a fine.

In the December 2006 letter to Sarkozy, now the president, Bardot said France is "tired of being led by the nose by this population that is destroying us, destroying our country by imposing its acts."

Bardot, 73, was referring to the Muslim feast of Aid el-Kebir, celebrated by slaughtering sheep. [From another article: In her letter, she argued that Muslims should stun the animals before slaughtering them.]

French anti-racism laws prevent inciting hatred and discrimination on racial or religious or racial grounds. Bardot had been convicted four times previously for inciting racial hatred.

"She is tired of this type of proceedings," he said. "She has the impression that people want to silence her. She will not be silenced in her defense of animal rights."

If someone can point me to an English translation of Bardot's letter (which she had allegedly published as well as sending to Sarkozy) — or, failing that, just to the French original — I'd be much obliged. Thanks to Antonio Haynes for the pointer.

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Imagine All the People Using This Song for Free:

Well, not all the people, just Ben Stein in his Expelled, and other critical users. Just yesterday, a federal district court held that Stein's use of a couple of lines from John Lennon's Imagine was a fair use, and dissolved a month-old temporary restraining order "enjoining defendants from distributing any additional copies of 'Expelled' for theatrical release, or producing or distributing any DVDs of the movie." Here's the heart of the court's reasoning, which strikes me as quite correct (citations omitted):

A work is transformative if it does not “merely supersede[] the objects of the original creation” but “instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Although transformative use “is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.” Thus, transformative works “lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright.” There is a strong presumption that this factor favors a finding of fair use where the allegedly infringing work can be characterized as involving one of the purposes enumerated in 17 U.S.C. § 107: “criticism, comment, news reporting, teaching ..., scholarship, or research.”

Defendants’ use is transformative because the movie incorporates an excerpt of “Imagine” for purposes of criticism and commentary. The filmmakers selected two lines of the song that they believe envision a world without religion: “Nothing to kill or die for/ And no religion too.” As one of the producers of “Expelled” explains, the filmmakers paired these lyrics and the accompanying music to a sequence of images that “provide a layered criticism and commentary of the song.” The Cold War-era images of marching soldiers, followed by the image of Stalin, express the filmmakers’ view that the song’s secular utopian vision “cannot be maintained without realization in a politicized form” and that the form it will ultimately take is dictatorship. The movie thus uses the excerpt of “Imagine” to criticize what the filmmakers see as the naïveté of John Lennon’s views.

The excerpt’s location within the movie supports defendants’ assertions. It appears immediately after several scenes of speakers criticizing the role of religion in public life. In his voiceover, Ben Stein then connects these sentiments to the song by stating that they are merely “a page out of John Lennon’s songbook.” In defendants’ view, “Imagine” “is a secular anthem caught in a loop of history recycling the same arguments from years past through to the present. We remind our audience that the ideas they just heard expressed from modern interviews and clips that religion is bad are not new and have been tried before with disastrous results.” The filmmakers “purposefully positioned the clip ... between interviews of those who suggest that the world would be better off without religion and an interview suggesting that religion’s commitment to transcendental values place limits on human behavior.... mak[ing] the point that societies that permit Darwinism to trump all other authorities, including religion, pose a greater threat to human values than religious belief.”

As many readers know, the copyright fair use analysis includes several different factors and subfactors, but as a general matter transformative uses (even commercially distributed ones) that comment on, criticize, or parody the original are permissible, at least unless they take considerably more of the original work than necessary to make their point. I think that's a sound doctrine (though I think there are good arguments for even more pro-user doctrines), and I think the court applied the doctrine soundly here.

For the related question of whether temporary restraining orders and preliminary injunctions against the distribution of nonliteral copies violate the First Amendment, see Mark Lemley's and my Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke L.J. 147 (1998) (generally arguing they do violate the First Amendment, though suggesting that as a doctrinal matter they might be supportable — if sharply time-limited — under the often-criticized Freedman v. Maryland doctrine). Here the temporary restraining order imposed only a comparatively modest burden on the distribution of constitutionally protected speech, since it didn't block the distribution and display of existing prints. Nonetheless, for the reasons I mentioned in my article, I think even this relatively modest burden should be constitutionally impermissible (partly because I think Freedman is not sound).

UPDATE: Commenter Iolo writes, "'Imagine no possessions' - doesn't that include intellectual ones?" Well, "was[n't] it a millionaire who said imagine no possessions?"

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Correcting David's Misunderstanding: I posted this in the comment thread earlier, but for readers who don't read comment threads, I thought I would point out in the main text that David's post below expressing amazement and dismay at my position on law school assignments misunderstands my position. In my post on May 20, I presented the argument David excerpts as an example of a position that I reject and that I find extreme. In the paragraph that followed, I explained why I find that position unpersuasive, and my explanation closely resembled David's in his post today. David appears to have interpreted the quoted excerpt as some kind of endorsement; it was not, as I hope the post as a whole makes clear.

On Legal Doctrine, and Teaching Law:

[I misunderstood/mis-characterized Orin's position in the post below - my apologies for that - as Orin points out in a later posting. Strike out any references below to Orin's advocacy for the "treatise approach" - I was thinking of deleting my posting in its entirety, but have decided not to; I think, though I won't belabor it here, that there is still a rather important and interesting disagreement between us about the nature of legal doctrine, but I can address that better some other time.]
Orin and I have been having an interesting little discussion about the teaching of law, and the use of edited versus unedited cases in classes (see the "Related Posts" below for a recap). Briefly, my position is that law students need much more exposure, in their "doctrinal" classes, to raw, unedited case material than they get, and Orin is not convinced.

In his last posting, he usefully broadened out the question, and he said something that truly astounded me:

"I think the question of edited versus unedited cases is really a subset of the broader question of how classroom materials should balance two competing needs: (1) the need for students to build and master general legal skills, and (2) the need for students to learn the specific subject matter of the course. Imagine a course built around either extreme. In a course built around need (1), the professor might give the students a tall stack of Westlaw printouts and tell them to go through the 30 or so cases and then find and master the 3 or 4 most relevant to the topic of the next day's class. In a course built around need (2), the professor would assign a treatise excerpt and would assign no cases at all."

This is, I think, the source of our disagreement, and it looks like it may go pretty deep: I would never assign treatise excerpts alone, even in a class built around "the need for students to learn the specific subject matter." And I'm amazed that Orin would.

I'd never teach a class with treatises alone for several reasons. Most fundamentally, treatises (and other secondary material) are not, and cannot be, "the law," and therefore whatever it is that students are studying in that class, it is not "the law." I'm not trying to be pedantic or over-literal, but you're not studying copyright law when you read the Nimmer treatise, you're studying Nimmer's views on copyright law — which are very important, very insightful, very helpful, very comprehensive, but they're not copyright law. It's not a trivial point — in our system, commentators and law professors are not authorized law-makers. Of course they play a profoundly important role — but their work product is not law. So studying only their work product and you're not studying the law.

Furthermore, pedagogically speaking, Orin's method strikes me as ill-advised. "Give a man a fish . . ." Students who encounter only the law professors' views on copyright law — whether it's Nimmer's, or Goldstein's, and/or including other leading commentators — is unprepared to do what lawyers have to do. Hell, you can memorize all 8 volumes of Nimmer's treatise, and you're ill-prepared to do what lawyers have to do. The first time you come across a problem that is not exactly like one already dealt with in Nimmer's treatise — that is, 45.8 seconds after you start practicing law — you're going to be very unhappy, because now you have to do what Nimmer did — read some cases and figure out what the hell is going on — and you've never done that before. Sure, if someone asks you for a memo on "What is the first sale doctrine?" you're ready to go — you can just spit out Nimmer's treatise on the subject. But nobody's going to ask you for that — precisely because they assume (correctly) that Nimmer's already done that, and they can just read Nimmer if that's what they want. No, they're going to ask you to figure out how copyright law fits into a new collection of facts — the client's collection of facts — a collection of facts that is probably quite similar to, but alas not exactly the same as, anything Nimmer discusses. You've got some work ahead of you, I'm afraid — and though you have taken an upper-level course in copyright law at Orin's law school, you've never done it before! (except in your first-year Legal Research and Writing class, which seems like it was an awfully long time ago . . .

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Narnia on the Big Screen:

I recently saw the film version of C.S. Lewis' Prince Caspian. Like the film version of The Lion, the Witch, and the Wardrobe, it does a good job of conveying the book on the big screen. In some respects, the movies are actually better than the books (which is something I rarely think about movies based on books that are any good).

Especially in comparison to his friend J.R.R. Tolkien, Lewis wasn't much interested in developing imaginary worlds with believable cultures, political institutions, and visual texture. His main focus was on character development and religious allegory (the plot of the Narnia books is a deliberate allegory on Christian theology). As a result, Lewis' Narnia seems very underdeveloped compared to Tolkien's Middle Earth or the imaginary worlds in most other topnotch fantasy literature. Through their impressive visual imagery, the movies make Narnia "come alive" in a way that the books don't. I didn't need to see Peter Jackson's excellent Lord of the Rings movies in order to have a detailed image of Middle Earth in my mind. Not so with Narnia, which seemed basically flat until I saw the movies.

Overall, Prince Caspian is not quite as good as the first movie in the series. Most of the problems arise because the book it's based on simply isn't as good as The Lion, The Witch, and the Wardrobe. There's very little character development in Prince Caspian. The four Pevensie children from the "real" world are basically the same as they were in the first book. And the title character's development into a leader seems too swift and easy to be either compelling or believable. It's also hard to buy into the plot about the oppression of Narnia's talking animals by the Telmarines, because it just doesn't seem that severe. Here, the problem may be that Lewis had to tone the violence and repression down in order to make the book fit the standards of what was considered suitable for children in the 1950s.

Finally, the Telmarine rulers don't compare to the White Witch in the first book as a serious enemy for the protagonists. They seem too incompetent and stupid to be a real threat. To avoid spoilers, I won't go into details. Let's just say that the Telmarine leaders are even more badly in need of The Evil Overlord List than most other fictional villains.

The movie doesn't help matters by giving the Telmarines Spanish accents and dressing them up to look like Spanish conquistadors. I assume that the point was to analogize their conquest and oppression of Narnia's natives to the atrocities committed by Spanish colonizers in Latin America. But to me, the conquistador outfits made the Telmarines seem more silly than scary. In fairness, however, the Telmarines are relatively more dangerous and effective in the movie than in the book.

After seeing the movie, I wondered how it was that the pathetic Telmarines managed to conquer Narnia in the first place. One possibility is that later generations of Telmarines were less effective than their conqueror forefathers. Checking the book, however, I got a different answer: near the end, Aslan explains that there was internal "disorder" in Narnia when the Telmarines invaded. So perhaps they defeated the talking animals by taking advantage of a preexisting civil war or other internal conflict. Still, it would have had to have been a real doozy of a "disorder" for the contending sides not to unite against invaders who - according to both the book and the movie - were hellbent on not merely conquering the Narnians but actually exterminating them.

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[Kirk Stark, guest-blogging, June 3, 2008 at 2:14am] Trackbacks
The Evolution of GOP Attitudes toward Wartime Taxes:

One of the most striking features of the history of U.S. tax policy is the shifting attitude of Republican elites toward wartime taxes. For more than a century -- from the founding of the Republican Party through the war in Vietnam -- Republican leaders consistently supported high wartime taxes. Indeed, support for higher wartime taxes was a defining feature of being a military hawk among the GOP faithful.

Examples abound of GOP support for higher wartime taxes. Abraham Lincoln, the nation’s first Republican president, was of course also the first president to sign into law a federal income tax, which took effect in 1862. Not surprisingly, GOP support was also strong for the tax increases enacted during World War I and World War II. For example, Kansas Republican Edward Little , a veteran of the Spanish-American War, took the House floor in 1917 to remind his colleagues that “when you conscripted the youth of this country” you promised “that you would conscript the wealth as well.” “Let their dollars die for their country too,” Little exclaimed.

In the months following the North Korean invasion of South Korea in 1950, Richard Nixon, campaigning for a seat in the U.S. Senate, signaled his hawkish anti-communist credentials by advocating new and higher taxes. On the stump in California, Nixon called for “an excess-profits tax as well as an increase in the taxes on individuals and corporations.” “In wartime,” Nixon opined, “there is no excuse or justification for allowing any individual or corporation to increase their profits as a result of war while men are dying on the battlefield.”

During the war in Vietnam, the strongest support for Lyndon Johnson’s surtax to help pay for the war came from Republican quarters. As one GOP Senator put it in January 1967, “I just don’t see how we can be hawks on the war and then vote against taxes to pay for it.” When Congress finally took up Johnson’s surtax in 1968, Democrats were split but Republicans were nearly unanimous in their support for the wartime tax hike.

This history helps to put John McCain’s reversal on the Bush tax cuts into perspective. From 2001 onward, McCain was staunch opponent of the Bush tax cuts, especially the Jobs and Growth Tax Relief and Reconciliation Act of 2003, which was enacted two months into the U.S. war in Iraq. The thrust of McCain’s position was that it was simply wrong to cut taxes while the country was at war. Speaking in May 2004, the Vietnam veteran and former prisoner of war delivered a passionate declamation on the principles of shared sacrifice:

“My friends, we are at war. Throughout our history, wartime has been a time of sacrifice. At the beginning of the war I said it would be long and difficult, and would require a great deal of sacrifice on everyone's part. But about the only sacrifice taking place is that by the brave men and women fighting to defend and protect the liberties we hold so dear, and that of their families. It is time for others to step up and start sacrificing. What have we sacrificed? Just in the last year we have approved legislation containing billions and billions of dollars in unrequested and unauthorized pork barrel projects, huge tax breaks for the wealthy and, just last week, a corporate tax bill estimated to cost $180 billion, chock full of billions of dollars in tax breaks for wealthy oil and gas companies and other special interests. … That is far and away from sacrifice.”

Today, of course, McCain has abandoned this sort of rhetoric in favor of wholehearted support of the Bush tax cuts. McCain’s reversal illustrates the enduring political influence of Ronald Reagan (the country’s most popular tax-cutting military hawk), as well as that of George W. Bush (the country’s least popular tax-cutting military hawk). It is also part of a broader story of the decline of liberal Republicans.

But the question remains: is there any life left in the traditional GOP insistence on higher taxes during times of war? Interestingly, 32 House Republicans voted recently for an expanded G.I. bill that included a new surtax on high-income households, suggesting that, perhaps, the jury is still out.

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A look Back at Obama's Days as an Organizer.--

This fascinating New Republic story about Barack Obama’s days as a community organizer came out over a year ago:

Chicago pastors still remember Obama making the rounds of local churches and conducting interviews—in organizing lingo, "one-on-ones"—where he would probe for self-interest. The Reverend Alvin Love, the Baptist minister of a modest brick church amid the clapboard bungalows of the South Side, was one of Obama's first one-on-ones. During a recent visit to his church, Love told me, "I remember he said this to me: There ought to be some way for us to help you meet your self-interest while at the same time meeting the real interests and the needs of the community.'" . . .

He was sometimes more interested in connecting with folks on the South Side than organizing them. He studied the characters he encountered so closely that [fellow organizer Mike] Kruglik says Obama turned his field reports into short stories about the hopes and struggles of the local pastors and congregants with whom he was trying to commune.

It is interesting that both Barack and Hillary were serious students of Saul Alinsky's methods.

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Bleg on guns and drug testing:

Do any readers have a cite for Rebecca Peters, the head of the international gun prohibition lobby IANSA, calling for drug testing of gun owners? Any cites for politicians or other prominent gun control advocates making similar calls?

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Monday, June 2, 2008

A "Modest Proposal" to Increase Judicial Pay:

In a series of posts in 2006 and 2007, I criticized claims that we are in dire need of a pay raise for federal judges (see here, here, and here). However, lots of eminent authorities disagree. Chief Justice John Roberts has argued that supposedly low judicial pay is creating a "constitutional crisis.". The American Bar Association claims that "inadequate salaries are undermining judicial independence" and "threaten[s] . . . the vitality" of the judiciary.

Unfortunately for advocates of judicial pay increases, Congress has so far failed to heed their calls. However, my GMU Law School colleague Ross Davies has developed a "modest proposal" that could increase judicial salaries without a new congressional appropriation funded by general tax revenue: Ross' proposed "Judiciary Fund" would raise federal judges' salaries to the levels of recommended by the ABA by means of an appropriation funded by a special tax imposed by Congress on the ABA's own members. As Ross points out, the Fund (if authorized by Congress) would not violate federal judicial ethics laws. He explains simple mechanisms by which Congress could structure the Fund in ways that eliminate any conflict of interest.

Ross also argues that ABA members could fairly easily afford the $44 million in annual expenditures needed to raise judicial pay to levels the ABA deems essential. He calculates that the necessary sum could be raised by imposing a tax of about $110 per year on each ABA member. Alternatively, the special ABA tax could be made progressive, with higher-paid ABA members being required to pay more than their lower-paid cousins. The ABA could even lower its membership dues somewhat in order to offset the extra expense imposed on its members by the tax (this last is my own suggestion).

It will be interesting to see whether the ABA embraces Ross' proposal. If judicial pay increases really are essential to maintain the "vitality" and "independence" of the judiciary, perhaps the ABA would be willing to put its money where its mouth is. However, I'm not holding my breath on that one.

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Polls on California Eminent Domain Ballot Initiatives Show Prop 98 Likely to Fail and Prop 99 Likely to Pass:

As this San Francisco Chronicle article indicates, recent polls show that California Proposition 98 (the ballot initiative that would meaningfully restrict eminent domain) is likely to be defeated in tommorrow's referendum. Proposition 99, the rival initiative sponsored by local governments and other pro-condemnation interest groups that only pretends to protect property rights against takings, is likely to pass. In a recent Field Poll cited in the article, Proposition 98 was losing by 43 to 33 percent among "likely voters," while Proposition 99 was ahead by 48 to 30 percent. A slightly earlier poll conducted by the Public Policy Institute of California has similar results.

If, as is likely, Proposition 98 is defeated, it will probably be a result of the combination of the sponsors' tactical error in combining the popular anti-eminent domain measure with a far less popular phaseout of rent control (a mistake I criticized in one of my earlier posts), combined with the presence of the deceptive Prop 99 on the ballot. The latter probably led voters to believe that they could protect property rights against takings without simultaneously attacking rent control.

I will post further on the lessons of this outcome (assuming that it actually happens) tommorrow or Wednesday. For now, however, the key lesson - one that should have been learned back in 2006 - is that anti-Kelo eminent domain measures can pass so long as they aren't combined with anything else that is significantly less popular. This is the second time that California property rights activists have had an opportunity to learn this particular lesson since Kelo. The first was Proposition 90 (briefly discussed in this post), which was narrowly defeated in 2006 because it combined restrictions on Kelo-style "economic development" takings with a far more controversial effort to restrict regulatory takings.

To make my position clear, I myself favor the abolition of rent control, and also think that there should be tighter restrictions on regulatory takings (though I haven't studied the regulatory takings provision of Prop 90 closely enough to tell whether I think it strikes the optimal balance on that score). However, the best should not be the enemy of the good. California is a major abuser of both "blight" and economic development takings. As the Institute for Justice, the libertarian public interest firm that litigated Kelo, concluded in a 2003 study, "California is one of the most active states in condemning properties for the benefit of other private parties." Passing a measure abolishing such takings in California would be an important victory in its own right.

REQUEST TO READERS: If you work for Field Poll or the Public Policy Institute or otherwise have access to the data from the two polls cited above, please contact me. I would like to discuss the possibility of using them in my research. I would, of course, use the data for research purposes only and would not resell it. If you can't release the individual-level data, but can only give me the complete aggregates, that would be useful too.

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Dartmouth Election Voting Closes Thursday:

If you haven't voted in the current Dartmouth election for the leadership of the Alumni Association, the deadline is Thursday.

I have received reports that some people have not received ballots and when they inquired as to why, they were told that they had been classified (without their knowledge) as "not interested" in voting. If you are in that category and have not received a ballot and you are in fact interested in voting, you should call 603-646 2258 or email the alumni relations office at dartmouth [dot] alumni [dot] relations {at} dartmouth.edu.

The sample ballot for the parity slate is here.

Last week, former Maine Governer Angus King, who was elected as an Independent candidate wrote to alumni:

To boil this controversy down to "are you for the lawsuit or against it" is, to put it charitably, grossly misleading.

No one is in favor of suing their college--unless an important principle is at stake and you are given no other alternative. And unfortunately, no other alternative is exactly this case. Last fall, the Board abrogated the right of the alumni to elect half the Trustees and effectively closed all avenues to question, let alone reverse, this decision. Hence, the lawsuit. To blame the suit on those who brought it, it seems to me, has it exactly backwards. By your logic, if someone defrauds you in business and refuses to make good on your loss, you are the bad guy for bringing suit to recover your property. This position doesn't pass the straight face test.

The simple issue is not the lawsuit, it's the incredibly high-handed and short-sighted action of the Board last fall which vitiated the 100 year old practice--based upon an agreement between the College and its alumni--of providing the alumni with equal representation on the Board. Parity is the issue and those who believe this principle to be important and worth maintaining had no other choice but to bring the suit--because the College and the majority of Trustees made it clear that they had no interest in seeing this principle honored. Indeed the very purpose--the whole idea--of the Board's action last fall was to nullify this principle. And as near as I can tell, until the suit was filed neither the Board majority nor the administration had the slightest interest in "working within the Dartmouth family to address their concerns".

Two additional points. First. I'm still astonished at the action of the Board from the point of view of process. After losing three or four elections in a row, including the ill-fated effort a couple of years ago to rig the alumni constitution, instead of responding to the issues being raised by the insurgent trustees and the large number of alumni who kept electing them, the majority of the Board simply abrogated the process itself. I thought we left "if I don't get my way, I'm taking my bat (or in this case, ballot box) and going home" on the sandlots of our youth.

I have some first hand experience with this democracy stuff and it is often cumbersome and sometimes downright annoying. But when you lose elections and keep losing, the idea is to figure out why and respond to the issues being raised, not simply change the rules so you don't have to cope with that pesky majority which disagrees with you. We all would deplore such an act in a developing country ("Ruling junta cancels elections; cites expense and chaos of recent balloting"); it is this action which has shamed Dartmouth, not the lawsuit whose purpose is to rectify it.

Regardless of one's position on any of the underlying issues, I don't see how anyone can defend what these folks did last fall. It's just plain wrong to cancel an established democratic process because you lose a couple of elections and both of us know it.

My second and concluding point is that for the life of me, I can't figure out why you or any other alumnus/alumna would for a minute support the College administration in abrogating our own power in the governance of the college. It just doesn't make sense. I can understand the administration's motives--no executive likes an activist board which questions its prerogatives and power. But for any alumnus to sit still for this--and in many cases actively abet it--I just don't understand. For if this is allowed to stand, the time will come--sooner rather than later in my opinion--when decisions will be made which you and I and the majority of alumni will strenuously oppose, but we'll be powerless to stop them.

For once you have laid your sword and buckler aside--once the suit is dismissed--they cannot be taken up again, and something important will have been lost.

So let's be honest--this vote is about parity, not the lawsuit. If the establishment slate (for want of a better term) is elected, the lawsuit goes away, and if the lawsuit goes away, parity goes away. It's that simple. And I'm still listening and waiting for a reason parity should be abandoned. So far, I haven't heard it.

Best, Angus King '66


Fed Soc Program on FTC Merger Litigation:

This Thursday at noon at the National Press Club. Details here.

Here's the info:

The Federal Trade Commission, which appeared to be in the midst of a losing streak with respect to merger challenges as early as last summer, has worked its way back to a more respectable ratio of wins and losses. FTC challenges to mergers of entities as diverse as natural gas utilities, organic grocery stores, and hospitals have raised a host of issues that are likely to impact merger practice for years to come. Equitable Resources/Peoples Natural Gas was a (belated) victory for antitrust enforcement in regulated industries, Whole Foods/Wild Oats was a defeat (for now) for narrow market definitions, and Evanston Northwestern/Highland Park proved that a challenge to a consummated hospital merger could succeed... though the nature of the remedy has caused critics to question the value of that victory. What do these three cases tell us about the state of current FTC merger practice? Is the Commission challenging the right transactions and protecting consumers? Are the courts functioning as an unnecessary obstacle to merger enforcement or an appropriate check on agency authority? Join our panel of experts for a discussion of these issues and more.

Panelists:

Mr. John T. Delacourt, Kelley Drye & Warren LLP Mr. Paul T. Denis, Dechert LLP Mr. Chul Pak, Wilson, Sonsini, Goodrich & Rosati Mr. Edwin S. Rockefeller, author of The Antitrust Religion and former head of the American Bar Association's Antitrust Law Section Moderator: Ms. Margaret A. Ward, Jones Day

Registration details:

The cost is $20.00. Lunch is provided. Visa and MasterCard accepted. Free for students, government employees, Hill staff, summer associates, and press.

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"Supreme Court Agrees":

I dream of a day when newspapers won't describe denials of certiorari as statements that the "Supreme Court agrees" with the lower court decision. Here's the latest, over an article by David Savage, the L.A. Times' Supreme Court correspondent. (I should stress that headlines are written by headline writers, not by reporters.)

Fantasy baseball leagues can use real players' names, Supreme Court agrees
Justices deny the appeal by pro players who argued that no one had a right to exploit their identities for commercial gain.

But the Supreme Court's denial of certiorari is expressly not a statement that the Court agrees with the decision below. The Court might deny certiorari because it thinks there's no disagreement among lower courts, because it thinks there's some procedural issue with the case that makes it an imperfect vehicle for deciding an issue, or because it doesn't think the issue is important enough. I suspect there's some weak correlation between the Justices' agreement with the decision below and the decision to deny certiorari, but it's very weak, except perhaps in cases that are themselves of extraordinarily deep national importance.

The most important practical implication of this is that the decision doesn't set any precedent (as Savage correctly said in his last paragraph). A court in another circuit, or a state court, is free to reach a result that differs from the decision in this case, so long as a later lawsuit was brought by someone who wasn't a plaintiff (or closely enough linked with a plaintiff) in this case. That possibility of a perfectly legitimate contrary decision in a future case wouldn't be so if the Supreme Court had really expressed "agree[ment]" with the lower court decision.

Readers, I think, are entitled not to be misled about whether the Supreme Court Justices (1) actually decided the case on the merits, and expressed actual agreement, or (2) simply declined to disturb the lower court decision and left the question potentially open. It's too bad that leading newspapers continue to flub this.

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"111 Nations, But Not US, Adopt Cluster Bomb Treaty":

So reads an AP headline — the Washington Post headline is nearly the same. But, as Best of the Web points out, here's an important fact from the text of the AP article, also reported in the Washington Post piece:

The United States and other leading cluster bomb makers — Russia, China, Israel, India and Pakistan — boycotted the talks, emphasized they would not sign the treaty and publicly shrugged off its value. All defended the overriding military value of cluster bombs, which carpet a battlefield with dozens to hundreds of explosions.

Why then "111 nations, but not U.S."? I take it "111 nations" was meant to suggest some broad consensus, and 111 is more than half the number of sovereign states (though I wonder what fraction of readers will have a relatively accurate sense of that). But the presence of such a consensus doesn't seem a terribly accurate implication, it seems to me, if indeed the three most populous countries and seven of the ten most populous countries have declined to sign. (Bangladesh and Brazil seem not to have signed, alongside China, India, the U.S., Pakistan, and Russia.)

Perhaps more importantly, comparing this list of the countries with the largest armed forces and this list of signatories reveals that the 13 countries with the largest military forces have all declined to sign the convention — an even starker picture than that painted by the AP's story text. That many nations with tiny militaries pledge not to use a certain kind of munition doesn't mean that much, it seems to me. That the 13 largest military powers decline to so pledge strikes me as meaning a lot more.

It sounds like it would be accurate to say that "most western Democracies, but not US, support cluster bomb treaty." It would also be accurate to say that "most countries, but not most of the largest military powers, adopt cluster bomb treaty." And given space constraints, it would be accurate to say "Nations Split on Cluster Bomb Treaty." But the implication of the "111 Nations, But Not US" headline strikes me as pretty misleading.

Note that the lists I cite are from Wikipedia; I'd be glad to see more authoritative lists if you can point me to them, and to note any errors in the data I've gleaned, if there are such errors.

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Garre to Be Nominated to Replace Clement as Solicitor General: According to the Associated Press, President Bush will be nominating my friend Greg Garre, currently the Principal Deputy Solicitor General, to replace Paul Clement as Solicitor General of the United States. In the meantime, Garre will be the Acting SG. Congratulations to Greg; it's a much-deserved honor. (Hat tip: Howard)
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Cass Sunstein and Me on Echo Chambers, the Fairness Doctrine, Service Provider Liabiltiy:

A BloggingHeads video dialog. Here's a clip:

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Libertarian (and Ex-Republican) Bob Barr Polling at 6% in North Carolina:

Public Policy Polling reports:

Barr receives 6% of the vote in possible match ups [in North Carolina] with both Barack Obama and Hillary Clinton as the Democratic nominee. Obama trails John McCain 43-40, while Clinton trails him 39-34.

Barr’s strength is with independent voters, with whom he pulls 9-12%. PPP’s previous North Carolina survey had found voters describing themselves as independents strongly inclined toward McCain....

“It’s a long way until the election but the early indication is that Bob Barr’s presence on the ballot could be a good sign for whoever ends up as the Democratic nominee,” said Dean Debnam, President of Public Policy Polling. “He’s likely to siphon off more voters who would otherwise be inclined to vote for McCain than he is from Clinton or Obama.”

PPP surveyed 543 likely voters on May 28th and 29th. The survey’s margin of error is +/- 4.2%. Other factors, such as refusal to be interviewed and weighting, may introduce additional error that is more difficult to quantify.

I should stress that "it's a long way until the election" part, since much depends on what the candidates (and especially McCain) say and do to woo the Bob Barr voters. And it's one thing to say you'll vote for a candidate who's sure not to win, and another thing to actually do it: To my knowledge, there's solid evidence that many voters prefer to vote for the winner, precisely because they like the feeling of having backed a winner, and voting for Barr is a sure way of not voting for the winner. I should also stress that the really interesting question is how Barr will poll in battleground states, which I expect North Carolina probably won't be, despite the relatively modest margin in McCain's favor compared to Obama or Clinton. (Note that North Carolina has voted Republican in every election since 1980.) Still, 6% is pretty high for a Libertarian candidate, so it struck me as worth mentioning.

None of this, by the way, is meant as an endorsement or criticism of Barr (note that I'm backing McCain myself), as an endorsement or criticism of the desire to vote for a winner, or as an endorsement or criticism of anything else; I'm just reporting on a poll that seemed surprising to me.

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Interesting Supreme Court Lineup

in today's U.S. v. Santos: On the bottom line, 5-4 in favor of the federal criminal defendant, with the majority consisting of Scalia, Thomas, Souter, and Ginsburg in the lead opinion and Stevens in a separate concurrence, and the dissent consisting of Roberts, Kennedy, Alito, and Breyer.

This particular majority has materialized before, in the pre-Roberts/Alito sentencing factfinding/Jury Trial Clause cases; and Scalia has indeed expressed some pro-Rule of Lenity views in past cases (check out, for instance, Muscarello v. U.S., a 5-4 case in which Ginsburg joined by Rehnquist, Scalia, and Souter dissented on rule of lenity grounds). Still, this breakdown seemed noteworthy.

UPDATE: Whoops, saw that Jonathan beat me to this; please comment on his post — I've turned off comments here to make sure all will go only on one thread.


Three Decisions, One 5-4:

The Supreme Court handed down three decisions today. There was one 5-4 decision (really a 4-1-4), with an interesting line-up: Justice Scalia delivered the judgment of the Court and wrote an opinion joined by Souter, Ginsburg and Thomas. Justice Stevens concurred in the judgment. Justice Alito dissented, joined by the Chief Justice and Justices Kennedy and Breyer. SCOTUSBlog has all the details here and here.

[Note: Post edited to correct a minor error.]

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[Kirk Stark, guest-blogging, June 2, 2008 at 8:56am] Trackbacks
War and Taxes

Many thanks to Eugene for allowing us to guest blog here on the Volokh Conspiracy. As mentioned in Eugene’s post last week, we have a new book out (co-authored with Joe Thorndike) titled "War and Taxes," published by the Urban Institute Press in Washington, DC. We wanted to use this first post to provide a little context of why we wrote this book and what it’s about.

As you probably know, the start of the war in Iraq corresponded roughly with the enactment of the Jobs and Growth Tax Relief and Reconciliation Act of 2003. The war started in March ’03 and President Bush signed JGTRRA into law two months later. The coincident timing of these two events prompted a flurry of op-eds on the propriety of cutting taxes during a time of war. For example, as David Rosenbaum noted in the New York Times, “in his determination to cut taxes even while waging war in Iraq, President Bush is bucking history.” Writing in the Los Angeles Times, Ron Brownstein noted that “we have always accepted heavier burdens as the price those at home pay to support those under fire on the front.” More recently, New York Times columnist Frank Rich has observed that “since 9/11, our government has asked no sacrifice of civilians other than longer waits at airplane security. We’ve even been rewarded with a prize that past generations would have found as jaw-dropping as space travel: a wartime dividend in the form of tax cuts.”

The basic objective of our book is to evaluate the historical claims implicit in these comments. Is it in fact true that “President Bush is bucking history” and that “we have always accepted heavier burdens as the price those at home pay to support those under fire on the front?” Unafraid to make bold, daring historical claims, our answer is… yes and no. As we see it, there are (at least) two ways of framing the history of American tax policy during wartime.

Frame #1: The Bush tax cuts mark an abrupt departure from our patriotic tradition of raising taxes during wartime. Those who subscribe to this perspective seem to have in mind the experience of World War II and, to a lesser extent, World War I and the Korea war. In each of these conflicts, the country “rallied ‘round the flag” and embraced all sorts of homefront sacrifice, including extraordinary levels of taxes, to support the troops and the country’s war effort.

Frame #2: The Bush tax cuts are simply the most recent and most extreme manifestation of an equally strong American tradition of reluctance, resistance and opposition to wartime tax burdens. Support for this perspective comes from a close examination of U.S. fiscal policy during the War of 1812, the Civil War and the war in Vietnam. In each these wars, political leaders for one reason or another had little interest in asking the public to bear greater tax burdens in order to finance the war effort, although in each of the wars new taxes were eventually imposed.

Over the next several days, we’ll have more to say about each of these conflicts, as well as a variety of related tax policy controversies. We just wanted to use this post to introduce the book and give some background about our motivation for the project. We should be clear up front that we don’t see the whole of U.S. history as some sort of perfect natural experiment from which we can draw strong inferences regarding the determinants of wartime tax policy. Obviously the world is a different place today than it was in 1812, 1942 or 1968 and there are many differences between the current conflict and prior wars. Nevertheless, we think there’s enormous value in using history as a vehicle for discussing current policy issues. We look forward to hearing your feedback.

Kirk Stark

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Other States Intervene in California Marriage Case:

Over the weekend, the NYT reported on an interesting development: Attorneys General from other states are asking the California Supreme Court to stay implementation of its decision legalizing gay marriage.

In a letter to the court’s chief justice, Ronald George, the attorneys general — all Republicans — asked that the marriages be put off until after the November election, when California voters are expected to vote on a measure that would ban same-sex marriages.

The attorneys general said that allowing same-sex marriages now could unnecessarily open the door to legal challenges from gay residents of other states who get married in California. Upon returning to their home states, the newlyweds could demand equality in everything from tax-filing status to testimonial privileges in civil suits, the attorneys general said.

“Absent a stay of the mandate in this case, that number will certainly be very large indeed,” Mark L. Shurtleff, the Utah attorney general, wrote on behalf of the group in a letter delivered on Thursday and released publicly on Friday. “And unnecessarily so if a majority of California’s voters favor in November the proposed ballot measure.”

Though I doubt this sort of intervention in another state's legal proceedings is unprecedented -- state legal proceedings can often affect the legal interests of other states -- it is certainly rare, particularly on an issue like this.

The state AGs' intervention underscores that the California decision could have national consequences. Assuming the decision is allowed to take effect, it won't be long before there are legal challenges to other states' refusal to recognize gay marriages performed in California, and then only a matter of time before someone makes a federal case of it.

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A Libertarian Moment?

Reason's Nick Gillespie thinks we are "in the beginning of a libertarian moment" (or so he told the NYT). Like others, including Michael Kinsley, he believes libertarians could be a significant political force this November. Whereas most libertarians have tended to vote for Republican candidates, the war and profligate spending (among other things) have caused an increasing share of libertarian voters to support Democrats. This leads some to think the libertarian vote could be up for grabs. Given Bob Barr is the Libertarian Party nominee, I would be inclined to agree. It's not at all clear who a libertarian should vote for (assuming, of course, that a libertarian believes he or she should vote at all).

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Spending Money without Saving Oysters:

The federal and state governments have spent some $58 million in an effort to conserve oysters in the Chesapeake Bay, to little avail.

Since 1994, state and federal authorities have poured these millions into rejuvenating the famous bivalves and the centuries-old industry that relies on them.

They have succeeded at neither.

Instead, official estimates show there are fewer oysters in the bay and fewer oystermen trying to catch them. If those estimates are accurate, the effort would be a failure of environmental policy that stands out for its scale, even on a bay where policymakers frequently promise big and deliver small.

Scientists and activists say the missteps of the save-the-oyster campaign will have consequences far beyond the half-shell bar. The whole Chesapeake will struggle, they say, missing a species that was as vital to its ecosystem as coral reefs are to theirs.

Among other things, state officials have done little to limit oyster harvesting, and have skimped on investment in artificial oyster habitat.

Another objection has to do with the design of government-built oyster habitats. Some scientists say they should be a foot or more tall, so oysters stay out of the mud. But, in both states, officials continue to build many shorter reefs.

"It's just more expensive to try to do" a larger reef, said Jim Wesson of the Virginia Marine Resources Commission. He said the height had little effect.

In the Great Wicomico River in Virginia's Northern Neck, a group led by the Corps of Engineers says it is proving otherwise. It built a taller reef and watched oysters spread across it: about 183 million of them. When a metal dredge was raked over the reef, it came up full of big, stone-colored oysters.

Prior studies have found that the success of oyster populations correlates with underlying property institutions. In short, where coastal owners can benefit from actions to protect or enhance oyster populations, oysters seem to do better. Without question Chesapeake oyster populations face many threats, but the Great Wicomico River experiment suggests efforts to encourage greater stewardship might well pay off.

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