The Volokh Conspiracy

Many of the most important cases in American constitutional law have not involved true cases or controversies. Instead, they involved individuals or organizations who intentionally set up a test case to challenge a law they disliked. Prominent examples include Plessy v. Ferguson and Griswold v. Connecticut.

I think we can add Lochner v. New York to that list. Joseph Lochner was accused in early 1902 of allowing baker Aman (sometimes referred to in newspaper reports as Amand or Armand) Schmitter to work more than ten hours in one day in Lochner’s bakery. Various sources, including one as early as 1905, state that Schmitter stayed late voluntarily to learn cake-making, but I’ve been unable to discover the source of this detail.

It’s obvious that Lochner eventually became a test case. Lochner presented no evidence to challenge the prosecution, and instead allowed himself to be convicted so he could appeal. And it’s no secret at this point that Lochner’s attorneys were paid by the New York Master Bakers Association, which had resolved to challenged the hours law.

But did the case start out as a test case, or just develop into one? Contrary to what I have previously written, when I surmised that the complaint against Lochner was initiated at the behest of the bakers’ union, the evidence suggests the former. 

In particular, it turns out that Schmitter himself swore out an affidavit against Lochner, and it’s highly unlikely that Schmitter was an agent of the bakers’ union. I’ve discovered a newspaper report from 1895 stating that the union tried to fine Lochner because he allowed Schmitter to live in his home, contrary to union rules that Lochner had agreed to obey. Schmitter begged the union to drop the complaint, explaining that he had nowhere else to live.

I’ve discovered another newspaper report from 1898, stating that Lochner and Schmitter, who now owned his own bakery, traveled together to New York City. Finally, Schmitter’s 1941 obituary noted his long employment in Lochner’s bakery.

So here we have an individual who lived in Lochner’s home, who resented the union for interfering in his relationship with Lochner, who was friendly enough with Lochner to travel with him, who was a former bakery owner himself, and whose family was proud enough of his service as a Lochner employee to have it mentioned in his obituary. This doesn’t sound like a person who would have tried to get Lochner criminally prosecuted under a union-sponsored law, especially not for teaching him cake-making after hours!

Add that to the fact that Lochner was active in both the Utica Master Bakers Association, and the state association, and the evidence strongly suggests that Lochner and Schmitter had cooked up the latter’s complaint as a mechanism to challenge the hours law.

“Castrate Knut [the polar bear], Say Animal Rights Activists.”

The Times has an interesting story on Diane Ravitch’s abandonment of many strategies for improving education associated with “conservatives.” I support some of these strategies, like trying to inject markets and competition into the educational system, and oppose others, like national standardized testing, which I suspect may raise the lowest common denominator, but be the enemy of excellence. 

Anyway, one paragraph in the story, explaining why Ravitch has come to oppose school choice and charter schools, really stood out: “In 2005, she said, a study she undertook of Pakistan’s weak and inequitable education system, dominated by private and religious institutions, convinced her that protecting the United States’ public schools was important to democracy.” 

I’m torn between “Really?” and “Huh?”

(I’m suggesting that Pakistan is so dissimilar to the U.S. in so many ways that it’s hard to believe that a study of Pakistan’s educational system could lead an eminent scholar like Ravitch to draw any meaningful conclusions about the U.S. system. Also, there are many other countries far more similar to the U.S. that have much more diverse educational systems than is common here, without obvious apparent damage to democracy. Why focus on Pakistan, of all places?)

Since the incorporation doctrine is in the news today, I thought I’d share a relevant excerpt from Rehabilitating Lochner (forthcoming, U. Chicago Press, Spring 2011): 

The Supreme Court ... gradually applied most, but not all, of the Bill of Rights to the states, on a case-by-case basis. To blunt criticism that they were emulating their discredited pre-New Deal predecessors, the Justices and their defenders asserted that the liberty of contract cases involved illegitimate “substantive due process,” while “incorporation” cases did not. 

Conceptually, however, the liberty of contract line of cases involved an exercise of what historian G. Edward White calls “guardian review,” policing the limits of state power, not “substantive due process.” The concept of “substantive due process” was primarily a post-New Deal innovation that did not become firmly established in American jurisprudence until the 1950s. Even if the Lochner line of cases could accurately be described as examples of substantive due process, exempting the incorporation cases from that moniker defied logic. For example, enforcing the First Amendment right of freedom of speech against the states via the Due Process Clause is literally an exercise in protecting a substantive right through that clause, and therefore is “substantive due process.”

In practice, the post-New Deal Court was doing precisely what its predecessor had done before it: identifying which rights it deemed fundamental to American liberty, and decreeing that the Due Process Clause protected those rights against the states. The Court, in fact, eventually out-Lochnered Lochner. Before the New Deal, the scope of liberty of contract and other Fourteenth Amendment due process rights recognized by the Supreme Court, including freedom of expression, was constrained by the states’ police powers. After the New Deal, police power considerations were eventually replaced with the test of whether government infringement on freedom of speech served a “compelling interest,” a significantly stricter test. The right to freedom of expression under the Due Process Clause, which the Court deemed a “preferred freedom,” quickly became far broader than the right to liberty of contract ever had been. 

Nor did “incorporation” prevent the Justices’ from exercising discretion based on their ideological proclivities. First, the Court engaged only in “selective incorporation.” The rights not incorporated, such as the right to a grand jury hearing and the right to bear arms, were the rights that the Justices either didn’t approve of or thought were unimportant. Second, the Court interpreted some incorporated rights, such as the Fifth Amendment’s ban on taking private property without just compensation, and some other rights found explicitly in the Constitution’s text, such as Article I, Section 10’s ban on states impairing contractual obligations, far more narrowly than it interpreted rights favored by liberal intellectuals, such as freedom of expression. In short, if Lochner and other liberty of contract cases were examples of dubious “substantive due process” based on the Justices’ ideological proclivities, then so, a fortiori, were the incorporation cases.

Over recent decades, other development disorders also appear to have proliferated, along with certain cancers in children and adults. Why? No one knows for certain. And despite their financial and human cost, they presumably won’t be discussed much at Thursday’s White House summit on health care.

Yet they constitute a huge national health burden, and suspicions are growing that one culprit may be chemicals in the environment. An article in a forthcoming issue of a peer-reviewed medical journal, Current Opinion in Pediatrics, just posted online, makes this explicit.

The author is not a granola-munching crank but Dr. Philip J. Landrigan, professor of pediatrics at the Mount Sinai School of Medicine in New York and chairman of the school’s department of preventive medicine. While his article is full of cautionary language, Dr. Landrigan told me that he is increasingly confident that autism and other ailments are, in part, the result of the impact of environmental chemicals on the brain as it is being formed.

Without getting way beyond my knowledge of the relevant science, I wanted to point out a couple of flaws in Kristof’s piece. First, the fact that someone has an important title doesn’t mean that he’s not a crank, or even a granola-munching crank. And even if someone isn’t a crank in general, he might still have crankish opinions on a particular issue. Surely, we have all met someone who is generally non-crankish, but believes, e.g., that Obama was not born in the U.S., or the U.S. government was behind the 9/11 attacks.

I’m not saying Landrigan is a crank—though tips from his “Rodale Organic Style Book” Raising Healthy Children in A Toxic World, like abstaining from using commercial baby wipes, suggest that his views on keeping kids safe from chemical exposure are extremely conservative—just that his title doesn’t mean his views aren’t “crankish.” A cabbage with a Ph.D. is still a cabbage.

Second, Kristof pulls a bait and switch. First, he assures us that the article in question was published in a “peer reviewed” journal (though not a leading one), giving at least some indication of mainstreamness. But then Kristof adds; “While his article is full of cautionary language, Dr. Landrigan told me that he is increasingly confident that autism and other ailments are, in part, the result of the impact of environmental chemicals on the brain as it is being formed.”

In other words, to get published in a peer-reviewed journal, Landrigan had to use “cautionary language.” Meanwhile, his “confidence” is apparently not sufficiently backed by scientific evidence that he can use “confident” instead of “cautionary” language in the peer-reviewed article. The casual reader, in short, might be fooled into thinking that Landrigan’s “confident” views have passed peer review, when in fact they seem to represent his own non-peer reviewed speculation based on the current evidence.

UPDATE: I should add that even one “confident” peer-reviewed article would be just that; many peer-reviewed articles, including ones published in the leading medical and scientific journals, have turned out to be wrong.

Tom Goldstein: “For almost everyone, Justice Stevens’s retirement will be a deeply sad event. He is a great man – a historic figure.”

I don’t think I’ve ever been sad when a Supreme Court Justice has retired. Surely hanging on like Stevens for thirty-five years until age ninety is long enough to suit anyone. There’s a fine line between distinguished long term service as a Justice, and clinging to power well-beyond seemliness, and it would almost certainly be better for the Supreme Court if more Justices emulated Souter and O’Connor, and fewer Rehnquist.

Stevens has been around a long time, and has inevitably written some important opinions as a result, but “greatness” is not an adjective that comes to mind when I think of his career. It’s not that I don’t think there have been “great” Justices whose jurisprudence I profoundly disagree with: Brandeis, Brennan, Holmes, and Warren, all come to mind easily. I just don’t see any reason to put Stevens in that category. 

And I’ve never gotten over just how ridiculous his reasoning was in his dissent in Texas v. Johnson, the flag-burning case, among the most embarrassing opinions of the last twenty-five years. Beyond that, he has been a competent, hardworking, sincere, and somewhat idiosyncratic (especially earlier in his career) Justice. But let’s not confuse longevity with greatness.

Salman Rushdie:

Amnesty International has done its reputation incalculable damage by allying itself with Moazzam Begg and his group Cageprisoners, and holding them up as human rights advocates. It looks very much as if Amnesty’s leadership is suffering from a kind of moral bankruptcy, and has lost the ability to distinguish right from wrong.

(H/T Noah Pollak via Facebook)

Well, at least Amnesty doesn’t send out press releases condemning investigative reports they haven’t seen or anything. Oh, wait; right....

UPDATE: Well, at least Amnesty doesn’t advocate extremely tendentious interpretations of international law that would make it impossible for a Western power to fight against irregular terrorist forces mingled with a civilian population. 

Oops.

Eric Fingerhut examines a “bizarre, almost unhinged” rant by Joe Klein in response to rather bland criticism from Commentary’s Jonathan Tobin. This has become something of a Klein specialty, at least when it comes to discussion of Israel’s American supporters. 

Three years ago, I wrote:

on the one hand, we have friends of Israel who are too quick to label others anti-Semitic, though I believe that this phenomenon is declining, as it has received increasing scrutiny and criticism. On the other hand, we have critics of Israel who try to portray anyone who defends Israel as a hysteric who sees anti-Semitism everywhere. This seems to be on the rise. And the most vociferous critics of the former phenomenon tend to be the most egregious participants in the latter.

Eric Fingerhut has an excellent post discussing the same phenomenon: 

[T]he whole Wieseltier-Sullivan episode has served to illustrate an emerging trend among critics of Israel: Their eagerness to allege that they’ve been accused of being an anti-Semite. I do agree that some of Israel’s defenders are too quick to throw out charges of anti-Semitism or “self-hating Jew,” and that’s lamentable and a problem. But it seems that among many of Israel’s critics, claiming that you’ve been accused of being an anti-Semite has become some sort of bizarre badge of honor. And quite a few of those that have allegedly been accused of being an anti-Semite, according to Wieseltier’s critics, either were never smeared with such a term or were only accused of making a specific problematic remark and not tarred with some broad brush of disliking Jews, as they claim....
Why exactly has claiming you’ve been called an anti-Semite become so cool lately? Could it be that those claiming they’ve been called anti-Semites find it easier to do that that actually defend their positions with facts?

Read the whole thing, as they say. 

As with other Israel-related posts, this one is likely to attract some very, uh, vigorous comments, and I’m too busy to moderate, so I’m keeping comments closed. 

Yesterday, I was editing the Introduction to my “Rehabilitating Lochner” book, and I needed a word to fill in the following sentence: “Lochner itself is now considered the ___ of the liberty of contract cases, though the opinion has not always attracted such disproportionate attention.” After some thought, I came up with the word “apotheosis.” I thought it looked good, and, given that this was an early sentence in the book, made me sound erudite.

But then I remembered that I’m trying to write for the readers’ benefit, not to sound smart or well-educated. (William F. Buckley, who was an excellent writer but often used obscure words, was trying to sound smart, in part to counter the image that conservatives are ignorant.) And I noted that even though I have a pretty good vocabulary, I had to look up apotheosis to make sure I was using it correctly, which likely meant that many of my readers would be unsure of the word’s meaning. So I deleted apotheosis, and replaced it with “epitome,” a much more common word. The sentence may sound less erudite, but it’s much more comprehensible. 

UPDATE: On further reflection, I changed the sentence to “Lochner has come to exemplify the liberty of contract cases, though the opinion has not always attracted such disproportionate attention.”

Bernstein, 2/10:

[Quoting Ha’aretz] Travers also rejects Israel Defense Forces photographs as proof that Hamas hid weapons in mosques during the conflict.

“I do not believe the photographs,” Travers said, describing the IDF evidence as “spurious.” [Who are you going to believe? Me or your lying eyes?]

Dershowitz, 2/14

Travers came to the job having already made up his mind not to believe anything Israel said and to accept everything Hamas put forward. For example, Israel produced hard photographic evidence that Gaza mosques were used to store rockets and other weapons. Other photographs, taken by journalists, also proved what everybody now acknowledges to be true: namely that Hamas, as its leaders frequently boasted, routinely use mosques as military munitions depots. When confronted with this evidence, Travers said, “I don’t believe the photographs.” Of course not; they don’t comport with his politically correct and ideologically skewed world-view. This is what he had previously said about why he didn’t believe that Hamas used the mosques to store weapons:

We also found no evidence that mosques were used to store munitions. Those charges reflect Western perceptions in some quarters that Islam is a violent religion. ...If I were a Hamas operative the last place I’d store munitions would be in a mosque. It’s not secure, is very visible, and would probably be pre-targeted by Israeli surveillance. There are a [sic] many better places to store munitions.”

But that is exactly what Hamas did, despite Travers’ insistence on paraphrasing Groucho Marx’s famous quip, “Who are you going to believe? Me, or your lying eyes?”

I’ll put this one in the “imitation is the sincerest form of flattery” department, and be flattered. 

The New York Times reports on the Andrew Sullivan vs. Leon Wieseltier controversy.  The report is not quite right; it says that Wieseltier accused Sullivan of anti-Semitism, when Wieseltier actually accused Sullivan of recklessly engaging in venomous rhetoric that gives aid and comfort to anti-Semites and stokes anti-Semitism.  This may be cold comfort to Sullivan and his defenders, but we might as well get the story right, and the difference is important for reasons discussed below.  You can read Wieseltier’s original article here, Sullivan’s response here, and Wieseltier’s rejoinder (much better than his original piece, IMHO) here.

I have a few small contributions to make to the debate.  One is that I find it extremely odd that Sullivan is so vociferous in attacking Israel’s defenders (rather than just Israel’s policies) when, as Jonathan Chait points out, he himself rather recently was one of Israel’s most vociferous defenders.  If Sullivan himself was once persuaded that Israel’s cause is just, shouldn’t that lead him to some circumspection about attributing Israel’s support in the U.S. to a nefarious cabal of “neocons”, the “Goldfarb-Krauthammer wing” of the Jewish community, AIPAC, and so forth?  Maybe a lot of people find Israel’s case compelling for the exact same reasons Sullivan did as recently as eight years ago.   But Sullivan is almost uniquely uncharitable to people who hold the views he himself held just a few years ago, so this probably reflects a general “convert going after the heretics” mentality on his part.  Plus, given his blogging about Sarah Palin, Trig, et al., is there much reason to think he hasn’t gone off the deep end generally?

Second, Wieseltier’s notes, in his rejoinder, that Sullivan has apologized a couple of times for engaging in rhetoric perceived to be anti-Semitic, and adds, “There is a lot of this prejudice in the world right now, and this is really no time to be sloppy, or South Parky, about it.”  Wieseltier has stumbled, perhaps inadvertently, on one of the key bones of contention between many Jewish (and some non-Jewish) advocates for Israel and their adversaries (including Jewish adversaries).  The pro-Israel forces note that anti-Semitism is rampant in the Arab/Muslim world, still has a fair number of supporters in the West, that Iran is threatening to wipe out Israel, and so forth.  The plea, then, is to take this into account when criticizing Israel, and try to keep your criticism reasonable, and take care not to invoke anti-Semitic tropes, even by accident. Otherwise you risk stirring additional anti-Semitism, perhaps even leading to a “Second Holocaust.”  After all, the “progressives” who harshly attack Israel are generally the same people who are most sensitive about other forms of racism.

From the critics’ perspective, however, Israel and its perceived bellicosity, and its perceived alliance with bellicose forces in the U.S., is not just a significant violator of Palestinian human rights, but a serious threat to world peace.  [UPDATE: Consider Sullivan–Israeli policy is a “danger to itself and the entire world”.] When you are dealing with a country so dangerous, that has such a reservoir of (to them inexplicable) support in the U.S., you can’t treat it with kid gloves.  If a critic of Israel occasionally steps over the line,that’s an understandable reaction to the frustration of beating your head against the wall of pro-Israel public opinion, and pales in comparison to the sins of the “right-wingers” whose “unconditional” support of Israel threatens all of humanity with nuclear annihilation.  And such critics are contemptuous of the idea that care should be taken when discussing legitimate topics that relate to Jewish stereotypes, such as the “Jewish Lobby”–we are supposed to worry, they suggest, about the long-term consequences of legitimate criticism of Israel, when [they think] Israel and its supporters are trying to push the U.S. into a new and disastrous war with Iran?

Finally, and related to the second point, there is a reason why some critics of Israel (some of whom I’ve discussed in this blog) are tempted to use venomous rhetoric against Israel and its supporters that sometimes crosses the line, to various degrees, into hostility to Jews, even if they are personally not only not anti-Semitic, but find it repulsive.   And that is that such rhetoric works.  Arguments based on pure reason are often less successful than arguments that provide reasoned arguments but also appeal to the emotions.  Our civilization has a two thousand year old reservoir of anti-Jewish sentiment that is part of our societal DNA, and appealing to that cultural baggage, even if it’s just latent, makes anti-Israel arguments more powerful and persuasive.   Being anti-Israel doesn’t make one anti-Semitic, but appealing to anti-Semitism does make it easier to persuade people to be anti-Israel.  The very effectiveness of appealing to societal anti-Semitism in criticizing Israel is good reason to avoid it, but also the reason it’s all too common.

That’s the headline on the N.Y. Times’s home page.

Of course, headlines don’t always reflect the actual article, but here’s how the article starts:

WASHINGTON — At a time of deepening political disaffection and intensified distress about the economy, President Obama enjoys an edge over Republicans in the battle for public support, according to the latest New York Times/CBS News poll.

This seemed like an interesting and somewhat contrarian conclusion, so I decided to look at the polling questions.  It turns out that  if you look at the actual poll, the results say no such thing.  What the poll does tell you is that Obama is more popular than Congressional Republicans.  On the other hand, Obama is more popular than Congressional Democrats, too.  Obama is not going to be running against Congressional Republicans.  Congressional Republicans are going to be running against Congressional Democrats, and Obama is going to be running in 2.5 years against a Republican who almost certainly won’t come from the ranks of Congressional Republicans.

The poll also shows that the public blames the Bush Administration more than it blames the Obama Administration for the nation’s economic troubles.  But the poll also shows that nearly as many Americans identify as Republicans than as Democrats, and that the percentage of people who prefer a smaller government with fewer services has increased substantially since Obama took office, to a 56–34 majority.  That’s hardly good news for Obama and his agenda, especially given that the poll surveyed everyone, not just likely voters, and likely voters lean Republican compared to the general public.

The poll, more generally, neither shows that Obama is doomed to political oblivion, nor that he has a clear “edge over [the] GOP.”  It would have been interesting if the poll had asked voters whether they preferred Obama in a series of head to head matches with GOP figures like Palin, Romney, and McCain.  If Obama had won such head to head matchups handily, the poll would show a real edge over the GOP.  But the way the actual poll was reported reflects either wishful thinking, or an overzealous desire to “make news.”

UPDATE: A reader points to a very pertinent Gallup Poll from early February (but apparently just released) that asked registered voters (again, not likely voters, who track more Republican) whether, if the election were held today, they would vote for Obama or “the Republican candidate.”  The results were Obama 44, Republican 42, with a margin of error of 4.  And Gallup has Obama with a higher approval rating that does the Times, and most other polls.   Right around when the Times was proclaiming Obama’s non-existent “edge,” the pro-Obama Huffington Post reported the Gallup poll with the headline “DANGER AHEAD: Obama Virtually Tied With GOP in 2012 Poll.”

In honor of Black History Month, Scotus blog is running a series of guest posts on race and the Supreme Court.  My post appears today, entitled “The Neglected Case of Buchanan v. Warley.”  It’s an excerpt from my Rehabilitating Lochner book, due out next Spring from University of Chicago Press.  Here’s the beginning:

Buchanan v. Warley is one of the most significant civil rights cases decided before the modern civil rights era.  Starting in 1910, many cities in the South, border states, and lower Midwest, responded to a wave of African-American in-migration from rural areas by passing laws mandating residential segregation in housing. More cities were ready to follow suit if the laws survived constitutional challenges.  Several southern state supreme courts upheld the laws against constitutional challenges.  In 1917, however, the Buchanan Court unanimously invalidated a Louisville residential segregation law as a deprivation of liberty and property without due process of law.

Although some scholars have portrayed Buchanan as only vindicating white people’s right to alienate property, the opinion’s text belies that understanding.  The right at issue, according to the Court, was “the civil right of a white man to dispose of his property if he saw fit to do so to a person of color and of a colored person to make such disposition to a white person.” “Colored persons,” Justice Day wrote for the Court, “are citizens of the United States and have the right to purchase property and enjoy and use the same without laws discriminating against them solely on account of color.”

I wrote back in September, re the Goldstone Report on Israel’s actions in Gaza during Operation Cast Lead:

My inclination is to dismiss out of hand any report that emerges from the U.N. Human Rights Council, which includes such human rights stalwarts as China, Cuba, Egypt, and Saudi Arabia. I’m even more inclined to do so when it establishes a four-person panel to issue a investigate and issue a report on human rights abuses in the recent Gaza war and the panel is initially ordered to focus only on Israel and ignore Hamas (and it’s not clear the mandate was ever really changed); one of the members had already declared Israel guilty of war crimes; the chairman of the panel was on the Board of Directors of Human Rights Watch when it accused Israel of war crimes in Gaza; and the panel couldn’t do much actual investigating, because the Israeli government quite properly wouldn’t let its members set foot in Gaza or Israel.

Nevertheless, others are taking the report quite seriously.  Perhaps this will change their mind (and if it doesn’t, I don’t think anything would):

The report [from the Jerusalem Center for Public Affairs] refers to recent remarks made by Desmond Travers, a retired Irish army colonel, who was one of four members of the fact-finding mission to Gaza and Israel.

Travers rejects the idea that Israel launched the offensive in Gaza on December 27, 2008, as an act of self-defense in response to Hamas rockets.

The Jerusalem center report says he bases this idea on a “fact” that he presents that in the month prior to start of the war, only “something like two” rockets that fell on Israel.  [An IDF timline shows that between Dec. 19 and 27, just before Operation Cast Lead began, approximately three hundred rockets and mortars fell on Israel from Gaza.]...

Travers also rejects Israel Defense Forces photographs as proof that Hamas hid weapons in mosques during the conflict.

“I do not believe the photographs,” Travers said, describing the IDF evidence as “spurious.” [Who are you going to believe? Me or your lying eyes?]*

Travers also criticized Israel’s past presence in Southern Lebanon, asserting that Israeli soldiers had “taken out and deliberately shot” Irish peacekeeping forces in the area. 

He accused “Jewish lobbyists” of [strongly] influencing British foreign policy in the Middle East and said that efforts to block the Goldstone reports findings have failed.

Here’s the full text of the interview from which these quotes are derived.  All the quotes check out, but the quotes recounted above don’t begin to illustrate Travers’s hatred of Israel, unwillingness to credit anything Israel says or question any Hamas assertions, and general nuttiness.  To get the full sense of it, you have to read the whole thing.  For example, did you know that there is no evidence that Hamas used human shields or intimidated the civilian population?  In fact, according to Travers, any such allegations are likely an artifact of “Israeli combat troops specially trained to operate in the Occupied Palestinian Territories in civilian attire. They worked as ‘franc-tireurs’ (literally ‘free shooters’) and could have been in a position to cause confusion among the population.”

*Further: “And then when, for example, you see photographs of weapons caches found in mosques, like ones taken in the Zaytoun area where the Israeli Giv’ati Brigade went in — and demonstrated a particular enthusiasm for brutality and racist abusiveness in their operation in that area — I would say that unless they can give me absolute forensic proof, I do not believe the photographs.”
UPDATE:  I think it’s worth reprinting in full  Travers’ utterly weird claim about Israel murdering Irish soldiers:

But anyway, because so many Irish soldiers had been killed by Israelis, (some too by Palestinians and/or their Lebanese cohorts), with a significant number who were taken out deliberately and shot (in South Lebanon), slowly but surely, the body-bag phenomenon came into effect, and suddenly Ireland is now perceived as almost entirely pro-Palestinian.

That’s my name for our latest D.C. storm.  I grew up in New York City, lived in New England for six years and Michigan for one, and I’ve never seen so much snow, in such rapid succession.

There’s a bizarre controversy brewing over the fact that New York Times Middle East reporter Ethan Bronner’s son has decided to volunteer for the Israeli military.  Anti-Israel activists are arguing that this means that Bronner will be tempted to bias his reporting in favor of Israel and the IDF, rendering his reporting non-objective, or at least suspect.  The Times’s public editor agrees with Bronner’s critics, but the Times editor-in-chief is defending Bronner.

I say that this is bizarre because I think friends of Israel would love to see media outlets adopt the standard proposed by Bronner’s critics, so long as it applies to both sides.  If the fact that Bronner’s son is serving in the Israeli military means that Bronner can’t be permitted to report on Israel and the territories, then Western media outlets should henceforth be banned from hiring Palestinian stringers who are responsible for doing much of the “on-the-ground” reporting in the West Bank and Gaza.   After all, if an American whose son joins the Israeli military as a non-citizen is too tied to one side to report the news, surely actual Palestinian citizens–many of whom no doubt have close friends and relatives affiliated with Hamas or the Palestinian Authority–are even more suspect.  It’s no secret that much of the hostile reporting against Israel in the Western media originates from work done by these stringers, both “journalists” and photographers.

For that matter, I assume we can expect Bronner’s critics (and Western media outlets) to no longer rely on reports from Human Rights Watch and other anti-Israel NGOs.  If Bronner’s objectivity is in question because he might be biased in favor of Israel, what of “factual” NGO reports commissioned by individuals who are blatantly hostile to Israel?  What about, for example, the likes of HRW Middle East director Sarah Leah Whitson, who lobbied in the U.N. against Israel and for the Palestinians during the Second Intifada, just before she joined HRW?

I could go on, but the point is that if the Western media is going to start seriously ferreting out biases and potential biases in how it reports on Israel, I don’t think Bronner’s critics would like the result.

UPDATE: Of course, Bronner’s critics likely expected the Times to keep Bronner on his Middle East beat, but hope that by stirring this controversy, Bronner will feel the need to bend over backwards to report the Palestinian side of the conflict, to show that he is “objective”.  They may be right.

[You should probably scroll down and start with Orin’s first post on Glenn Beck if you want to follow this thread]

First, thanks to Orin for the nice plug for my Rehabilitating Lochner book, which probably won’t be out until about a year from now.

Second, just to clarify, my broader concern in criticizing Roscoe Pound and his Progressive contemporaries is not that they were principled advocates of  judicial restraint in constitutional interpretation, and I don’t like judicial restraint. (In fact, my own views on judicial restraint and constitutional law are rather murky, even to me, at this point.)

Rather, I object to the fact that the Progressive legal scholars supported judicial restraint primarily because they thought that this would further the Progressive  agenda, which sought to elevate the power of the government at the expense of individual rights.  (Holmes was a different story;  Holmes was a democrat not because he was a Progressive, but because he saw democracy as a relatively peaceful way for individuals to engage in the Darwinian struggle for survival. I can’t say I find this ideology especially attractive.) So I don’t see the Progressives as principled supporters of judicial restraint, but as consistent supporters of government regulation of virtually all aspects of human life, from limiting how many hours a baker could work, to banning private schools, to segregating housing [Progressive law review commentary was especially hostile to Buchanan v. Warley, which invalidated de jure housing segregation], to encouraging state-sponsored eugenics.  Judicial restraint was a means to promote and protect these statist ends, and not an end in itself.

Relatedly, one of the most interesting things I’ve learned about Lochner [as a stand-in for the liberty of contract doctrine more generally] is that while right-of-center scholars like Orin often criticize it today as “based on a nontextual and ahistorical doctrinal test,” that wasn’t (with the partial exception of Corwin) the Progressives’ critique.  Please indulge one more excerpt from the book:

The irony of the conservative originalist critique of Lochner is that proponents of liberty of contract were themselves originalists, trying to adhere to what they saw as the constitutional understandings of the Fourteenth Amendment’s Framers regarding individual liberty and the scope of the police power.  The early twentieth century version of originalism differed in significant ways from modern conservative originalism, and it was neither well-theorized nor well-explained by its judicial adherents.  Modern conservative originalists might very well argue that the liberty of contract cases represented a mistaken interpretation or application of originalism, but it was originalism nevertheless....

Progressives [,meanwhile,] generally blamed the Constitution itself, and its implicit and explicit support for property rights and limited government, rather than “judicial activism,” for the liberty of contract cases and due process cases they believed were harmful and mistaken. Indeed, Progressives invented and promoted the concept of a “living Constitution.” (See, e.g., Howard Lee McBain, The Living Constitution A Consideration of the Realities and Legends of Our fundamental Law (1927)).

In short, while Progressive legal elites favored judicial restraint, their political and jurisprudential ideologies, favoring statism and opposing originalism (flip sides of the same coin to them) would seem to have little to recommend themselves to modern conservative legal elites.

Below, Orin expresses amazement/bewilderment that Glenn Beck deems Roscoe Pound an important enemy of American constitutionalism, by which I assume Orin means a proper understanding of the U.S. Constitution.  I watched the clip, and I’m not going to vouch for Beck’s bizarre claim that Pound was somehow responsible for American lawyers interpreting the Constitution via caselaw rather than through studying the Constitution itself.

It is true, however, that Pound was an extremely influential figure who had a very negative influence on American constitutional law. In particular, Pound was the founder and leading light of “sociological jurisprudence,” which in turn influenced constitutional interpretation for decades to come, and not in a good way.  (And I’m curious as to why Orin thinks its absurd to point this out, or whether he in fact thinks Pound’s influence was positive.)

It so happens that I’ve written a fair amount about Pound in chapter 3 of my forthcoming book, Rehabilitating Lochner.  Here are a few excerpts:

Roscoe Pound launched the sociological jurisprudence movement with a series of influential attacks on the Supreme Court’s nascent liberty of contract jurisprudence....

Even though Justice Peckham’s Lochner opinion explicitly stated that the Court’s view of the relative healthfulness of baking was informed by “looking through statistics regarding all trades and occupations,” Pound and his fellow Progressives lambasted Lochner as the product of “mechanical” or “conceptualist” jurisprudence that ignored scientific knowledge about the health effects of long hours on bakers....

According to Pound and other advocates of sociological jurisprudence, law’s purpose is to achieve social aims.  Legal rules, including constitutional rights, cannot be deduced from first principles. Judges should therefore consider the public interest and “social facts” when interpreting the Constitution. Because modern, industrialized society required increased government regulation, the scope of the police power must be interpreted to accommodate this need.

Pound derided inflexible jurisprudential theories like originalism because they fail to respond to changing times. He contended that legal rules should be only a “general guide” to the judge, who should be free “within wide limits to deal with the individual case.”

Pound “repeatedly claimed that turn-of-the century judges engaged in and lawyers believed in mechanical deduction.”  Yet he both misrepresented the reasoning of Lochner, his primary example, and “offered no quotations or citations to that effect by anyone who espoused this allegedly dominant view of judging.”

I go on to point that Pound accused the Lochner majority of Darwinism, even though it was his idol, Holmes, who was the only Darwinist on the Court. Pound himself, a former botanist with prominent “Progressive Darwinist” mentors, was far more influenced in his legal ideology by evolutionary theory than were the Justices in the Lochner majority.

I also argue that to a large extent the entire theory of sociological jurisprudence, at least in the hands of Pound and his followers, was basically an intellectual smokescreen for a statist agenda that called for judges to defer to whatever the legislature wanted to do.  Pound consistently held up the majoritarian Holmes as his model, yet Holmes hated facts and lacked any interest in being a pioneer of sociological jurisprudence, whose proponents claimed to be concerned most of all with ensuring that law was consistent with social facts.

In short, I find Pound’s work on constitutional theory to be rife with dishonesty, and substantively disastrous in his dismissal of the importance of economic liberty [and individual rights more generally] and, more important, his advocacy of injecting social policy considerations into constitutional interpretation at the expense of the text.

Ironically, some modern conservatives have adopted the anti-originalist Holmes and his Progressive allies like Frankfurter, all known enemies of originalism in their day, as their heroes.  And it’s true that modern liberals have abandoned many aspects of the Progressive line pushed by Holmes, Hand, Pound, Brandeis and others.  But the enemy of an enemy isn’t necessarily a friend.

UPDATE: In the comments, Orin writes,

David, I don’t think it’s “absurd” to point out that Pound was a major figure in sociological jurisprudence. Rather, I was pointing out what you characterize as “Beck’s bizarre claim that Pound was somehow responsible for American lawyers interpreting the Constitution via caselaw rather than through studying the Constitution itself.” I gather from your statement that you will not defend it that you disagree with it, as well.

Yes, and I suspect that Beck was somehow conflating Langdell and Pound.  And if that’s all Orin meant, than we agree.  But I read his post as suggesting that its absurd to tag Pound as an enemy of American constitutionalism.  That’s not exactly how I’d put it myself, but I take it Beck and his guest were making the broader point that Pound was extremely influential and had a very negative impact on how American academics and judges go about interpreting the Constitution, in particular substituting traditional modes of constitutional interpretation for Progressive social theory.  And while Beck may have made the point inelegantly and with inaccurate details, the general point (made much more clearly by the guest) strikes me as basically sound.

Below, Jonathan raises the following from a Jeff Rosen blog post:

The conservative justices may have calculated that they could strike down campaign finance restrictions without provoking a full-blown presidential backlash. But it takes only a few high-profile presidential attacks to tar a Court as activist in the eyes of history. During the 1930s, the Supreme Court upheld a great deal of FDR’s economic recovery program, but the New Deal Court is remembered today as a group of unprincipled activists because of just a handful of high profile decisions that FDR prominently attacked.

I assumed that when Rosen refers to the “New Deal Court,” he means the pre-1937 Court that resisted elements of the New Deal.

That said, it’s a bit odd to write that “the New Deal Court is remembered today as a group of unprincipled activists because of just a handful of high profile decisions that FDR prominently attacked.”

I’ve never heard the New Deal Court attacked as “unprincipled activists.”  Reactionaries, yes.  Defenders of a pre-modern “horse and buggy Constitution” (FDR’s words), yes.  Out of touch, yes.  Anti-democratic, yes.  “Activists,” yes.  But unprincipled?  No!  The complaint has always been that they had the wrong principles, not that they were unprincipled.   It was quite clear to everyone that given existing constitutional precedent and understanding circa 1933, much of the New Deal was unconstitutional.  That’s why, for example, the Court invalidated the National Industrial Recovery Act by a unanimous vote.  And the Court invalidated the Agricultural Adjustment Act by a 6–3 vote, including “moderates” Hughes and Roberts.

That brings us to the “handful of high profile decisions.”  The NIRA was the heart of FDR’s economic recovery program, and the AAA was the heart of his agricultural recovery program.  The Court also invalidated a series of less significant, but still important, New Deal legislation.  Rosen makes it seem FDR picked a fight over a “handful” of relatively inconsequential decisions.  But there has probably been no greater example of the Supreme Court’s devotion to principled constitutional interpretation, and its willingness to challenge the political branches, than the Court’s willingness to invalidate the key elements of a very popular president’s economic program in the middle of the worst economic crisis in American history.

Finally, I vigorously disagree with the lesson Rosen draws from all this, which is that Obama is wise to take on the Court:

It’s a relief to see former Professor Obama having the nerve to stand up for judicial restraint and to criticize the conservative justices to their faces. If the justices don’t take the criticism to heart, they’re headed toward a full-blown confrontation with the White House and Congress that won’t end well for the Court.

FDR ultimately did engage in a full-blown confrontation with the Supreme Court, via his Court-packing plan, presaged by his vigorous attack on the Court in his 1937 SOTU address, and coming after he won a smashing victory in the 1936 elections.  Yet despite FDR’s popularity and the Court’s lack thereof, despite the fact that he ultimately tried to mask his confrontation with the Court in concerns about the Justices’ age, despite huge Democratic majorities in the House and Senate, despite the Court’s invalidation of extremely important legislation, and despite the continuation of the Depression, the Supreme Court ultimately won the confrontation, and won it handily.  FDR was widely accused of wanting to assume dictatorial powers, his popularity never quite fully recovered, and the Court-packing scheme got his second-term off to a rocky start, ultimately contributing to massive Democratic losses in the 1938 elections.

For that matter, Dred Scott didn’t much damage the Court in the long-run; nor did Lochner and associated cases, the New Deal confrontation with Roosevelt, Truman’s battle with the Court over his seizure of the steel industry, Brown, the Court’s 1957 opinions favoring Communist litigants, the redistricting cases of the 1960s, Roe v. Wade, Bush v. Gore, or any other cases or series of cases for which the Court has been harshly attacked by politicians and their supporters.

The general lesson is that the Court is not an easy political target, beyond standard “rally your base” considerations.  The specific lesson of FDR and the Court is that even an extremely popular president at the height of his power lost when he tried to take on Court composed mainly of elderly gentlemen in their 70s whose constitutional ideology found little support even among the Republican opposition.  FDR eventually won the war, but only by appointing new Justices.  (This was virtually  inevitable, considering that he was president for thirteen years; admittedly, Robert and Hughes in the interim became more, ahem, flexible (unprincipled?) in their interpretation of the Constitution, but I think they saw the writing on the wall, or perhaps Barry Cushman is right that later New Deal legislation was better-drafted to take constitutional objections into account.)  That’s the only way a much less popular president, facing a much more vigorous and popular Court, is going to win this particular war, too.

UPDATE: I should add that to the extent the pre-1937 New Deal Supreme Court has a “bad” reputation, this is almost entirely an artifact of the fact that the academics who study the Court–historians, political scientists, and law professors–have been overwhelmingly sympathetic to the New Deal and hostile to its opponents, and have eagerly engaged in winners’ history for the last seven+ decades.  Why “winner’s history?”  Consider the widely accepted and repeated notion that the pre-New Deal Supreme Court invalidated “Progressive” economic regulation because the Justices were Social Darwinists.  There is no (and I mean zero) evidence that any of the “conservative” Justices of the early twentieth century were motivated to any meaningful extent by Social Darwinism, but that didn’t stop historians from consistently asserting it as gospel because it fit into a narrative they favored.

or are you just happy to see me?

Some “tough journalism” from the Times’s Adam Liptak. 

We learn of Stevens’s “plainspoken style,” his “common sense” and “moral clarity,” and that he is “the leader of the court’s liberal wing.”  While in his early years on the Court “his views often seemed idiosyncratic,” he has since “emerged as a master tactician,” who uses the prerogatives of his seniority “to great advantage,” displaying “patience and skill.”  His death penalty opinions this term involved a “carefully calibrated distinction.”

Liptak even manages to favorably cite a paragraph from Stevens’s Citizens United dissent that strikes me as a bizarre non sequitur:

Justice Stevens, who served in the Navy during World War II, reached back to those days to show the depth of his outrage at the majority’s conclusion that the government may not make legal distinctions based on whether a corporation or a person was doing the speaking.

“Such an assumption,” he wrote, “would have accorded the propaganda broadcasts to our troops by ‘Tokyo Rose’ during World War II the same protection as speech by Allied commanders.”

Next time, perhaps the Times could just  get one of his Stevens’s former clerks to write a tribute to him on the op-ed pages.

Via Instapundit, Conrad Black has a scathing attack on Obama.  I suggest putting aside one’s positive or negative feelings about Obama, and enjoying the piece as a model polemic.

Commenters identified as “conservative” often get unfairly, and generally absurdly, labeled by their opponents as “fascists,” but Buchanan is a rare one who deserves it.  Why is he still a “respectable” media presence?

UPDATE: Let me clarify: this post is just one of many examples of Buchanan’s general fascistic mentality, not “proof” by itself of that mentality.  As for those who don’t even see any racism in this particular column, what about this:

This means white folks on Medicare or headed there will see benefits curtailed, while new arrivals from the Third World, whence almost all immigrants come, get taxpayer-subsidized health insurance. Any wonder why all those tea-party and town-hall protests seem to be made up of angry white folks?

What the McDonnell, Christie and Brown victories teach is that the GOP should stop listening to the Wall Street Journal and start listening to these forgotten Americans.

Why would, for example, black American citizens be less angry than white Americans about subsidizing illegal immigrants’ health insurance?  “Angry white folks” are the “forgotten Americans?”  Aren’t there any black, Hispanic, or Asian people on Medicare?

Rush Limbaugh made comments on his radio show (scroll down–if you find this post of great interest, you should probably read the whole three-paragraph monologue, which makes the relevant context abundantly clear) suggesting that Pres. Obama may be subtly appealing to anti-Semitism through his attack on “bankers” and “Wall Street,” and that Jewish voters, in return, may be abandoning Obama.

Abe Foxman and the ADL then issued a press release:

Limbaugh told his listeners: “To some people, banker is a code word for Jewish; and guess who Obama is assaulting?  He’s assaulting bankers.  He’s assaulting money people.  And a lot of those people on Wall Street are Jewish. So I wonder if there’s – if there’s starting to be some buyer’s remorse there.”

Abraham H. Foxman, ADL National Director, issued the following statement:

Rush Limbaugh reached a new low with his borderline anti-Semitic comments about Jews as bankers, their supposed influence on Wall Street, and how they vote.

Limbaugh’s references to Jews and money in a discussion of Massachusetts politics were offensive and inappropriate.  While the age-old stereotype about Jews and money has a long and sordid history, it also remains one of the main pillars of anti-Semitism and is widely accepted by many Americans.  His notion that Jews vote based on their religion, rather than on their interests as Americans, plays into the hands of anti-Semitic conspiracy theorists.

When he comes to understand why his words were so offensive and unacceptable, Limbaugh should apologize.

Now compare the bolded “quotation” from Limbaugh’s show with what he actually said:

Look, folks, there are a lot of people who when you say “banker,” people think “Jewish.”  People who have prejudice is the best way to put it. They have a little prejudice about them. So for some people, “banker” is code word for “Jewish,” and guess who Obama’s assaulting?  He’s assaulting bankers.  He’s assaulting money people, and a lot of those people on Wall Street are Jewish.  So I wonder if there’s starting to be some buyer’s remorse there.

Note that that the ADL press release intentionally cut off the italicized material above in which Limbaugh made it clear that prejudiced people associated “bankers” with Jews.

I find Limbaugh’s comments, even with the full context, to be foolish: I don’t think there is any evidence–and Limbaugh provides none–that Jews even perceive Obama to be appealing to anti-Semitism, nor that Jews in particular are, as Limbaugh suggests, abandoning Obama at a rate greater than other voters.  Charitably, Limbaugh’s remarks were a lame attempt to find a topical reason to plug Norman Podhoretz’s book, Why are Jews Liberals?

But the fact that Limbaugh made a foolish comment unsupported by any evidence hardly makes his comment “borderline anti-Semitic.”  How, exactly, is attacking the other side for allegedly appealing to people’s anti-Jewish prejudices anti-Semitic?

I’d like to give the ADL and Foxman the benefit of the doubt here, but the fact that their press release cuts off the relevant two lines about prejudice argues strongly against it. [I also don’t see anything in Limbaugh’s remarks that would support Foxman’s claim that his is propounding the “notion that Jews vote based on their religion, rather than on their interests as Americans,” beyond the obvious (and I assume uncontroversial) point that Jews are less likely to vote for someone that they perceive as exploiting prejudices against them.]

Fact is, while leftist types go on and on about the “right-wing” ADL, the core donor base of the ADL is Jewish liberals, and Foxman and company need to go after a conservative or two every once in a while, sometimes with the flimsiest of reasons, to keep their donors happy.

Unfortunately, and perhaps not surprisingly, the same left-wing bloggers (e.g.; and note the irony that this blogger accuses Limbaugh of being an anti-Semite, yet his blogging seems to attract a fair number of blatantly anti-Semitic commenters) who like to call Foxman out when they think he’s being too harsh on critics of Israel are perfectly willing to back him up on this one.  How many of them actually bothered to take the approximately 45 seconds I needed to look up the full transcript of Limbaugh’s remarks (none seem to quote the “prejudiced” lines), I don’t know, but the line between reckless slander and intentional slander isn’t that fine.

Podhoretz, meanwhile, responds here.

A while back, a prominent law review asked me to review a book on a topic of interest to me.  I readily agreed, on condition that the review be relatively short.  When it came time to sit down and read the book, however, I found it extremely difficult to understand; the book was loaded with unnecessary jargon, long, run-on sentences, and big, obscure words where short, simple ones would do fine.  I found myself sometimes reading a sentence five times to try to figure out what the author was trying to say.

After several hours of this, I gave up.  I sent an email to the law review editors to the effect that while I was loath to go back on my commitment to review the book, I’d rather be boiled in hot oil than spend my time giving this book the attention it needed to be ready to start writing a review.

I won’t claim to be the best writer in the world, but I do try hard to make all of my academic writing readable, even by non-academics.  I’m not sure that this is always a career benefit–some student law review editors, the basic scholarly gatekeepers of our profession, likely confuse turgid, elliptical, and jargon-filled prose with erudition.  But, as my anecdote hopefully shows, going the opposite route also has its costs.

UPDATE: All this bring to mind the following from Gilbert and Sullivan’s Patience:

If you’re anxious for to shine, in the high aesthetic line as a man of culture rare,

You must get up all the germs of the transcendental terms, and plant them everywhere.

You must lie upon the daisies and discourse in novel phrases of your complicated state of mind,

The meaning doesn’t matter if it’s only idle chatter of a transcendental kind.

And everyone will say, As you walk your mystic way,

If this young man expresses himself in terms too deep for me,

Why, what a very singularly deep young man this deep young man must be.

Maybe a flight attendant or passenger could have looked up what “tefillin” is, and saved the passengers on this flight a lot of inconvenience, and the airline a lot of embarrassment. (A flight was diverted when flight attendants became concerned that a teenager’s Jewish ritual object, tefillin was actually some sort of a bomb).

Aside: The English word for tefillin is “phylacteries,” though I don’t think any English speaker actually uses this word.  When I was in high school, one of my classmates lost his tefillin (which are expensive) on the subway.  He went up and down the aisle asking if anyone had seen his “phylacteries.”  Not surprisingly, he didn’t get any “yeses.”  Even if there were no other Jews on that subway car, I think he’d have been more likely to succeed by asking about his tefillin.

I’ve met a lot of well-educated people who think that a “homeopathic” remedy is simply a “natural” remedy.  Here’s a welcome reminder that it’s actually quackery of the highest order.  Meanwhile, if you have “brusing and injury”–or any other malady, really–I’d be happy to sell you patented Bernstein© brand Placebo Pills for an even lower price than my homeopathic competitors, guaranteed to work at least as well.

UPDATE: My motto: “No active ingredients, so no side effects!”

Looks like Chapman Law School dean John Eastman is running for the Republican nomination for California attorney general. It’s hard to believe that California voters would elect someone so competent and qualified, but good luck, John!

I’ve just posted this article, co-authored with Tim Leonard of the Princeton Economics department, on SSRN.  Here’s the abstract:

Contrary to their modern reputation as egalitarian liberals, many of the original progressive architects of American labor reform were partisans of human inequality. The labor legislation they pioneered was, in important respects, designed to exclude immigrants, women, and African Americans from some or all of the labor market.

The first part of this article discusses the origins and development of a progressive economic ideology that favored, indeed demanded, the exclusion of various so-called “defective” groups from the American labor market. Xenophobia, race prejudice, and sexism certainly were not new to the United States in the Progressive Era. What was new was, first, the idea that protecting deserving workers required the social control of undeserving workers, enough so that labor-legislation advocates defended the exclusion of purportedly unfit minority workers not as an ostensibly necessary evil, but as a positive social benefit. Second, the exclusion of undesirables acquired a new scientific legitimacy: the Progressive Era marked not only the advent of the welfare state but also an extraordinary vogue for race thinking and for eugenics, the social control of human breeding. The new science of eugenics turned “undesirables” into the “hereditarily unfit” and elevated exclusion to a matter of national and racial health. And the new sciences of society, especially economics, showed how unfit workers wrongly lowered the wages and employment of racially superior groups.

The second part of this article discusses the practical impact progressive ideology had on labor reform in the 1930s. The intellectual heirs of progressivism used the prevailing economic crisis to promote previously unachievable government involvement in the labor market to the detriment of those deemed excludable.

The Davis-Bacon Act of 1931, which regulated the wages paid on construction projects paid for by the federal government, was designed to exclude African Americans and other workers deemed “defective” from the labor market for federal construction projects.

The influence of the progressive economists’ belief that low-paid African American workers were “defectives” who should not be permitted to compete on price with white workers continued during the New Deal. Like jobs held by women and children, jobs held by African Americans were often considered “substandard” by New Dealers and were slated for permanent elimination. This mentality was reflected in the Fair Labor Standards Act of 1938, which imposed a high uniform national minimum wage, even though its architects knew that this would lead to substantial unemployment among African Americans.

Finally, the 1930s witnessed the resurrection and expansion of single-sex, state minimum-wage laws in the 1930s. These laws were upheld by a Progressive Supreme Court in 1937. The Court adopted the conventional wisdom in contemporary liberal circles: women who could not command a “living wage” as defined by statute should be expunged from the labor force.

In short, in the early 20th century American labor reformers promoted an ideology that advocated excluding from the workplace those they regarded undesirable, undeserving, or defective. Once progressive ideology came to dominate government policy during the Great Depression, labor legislation was enacted that intentionally set out to exclude “undesirable” workers from the workplace.

A few days back, while I was away at the Federalist Society Faculty Division conference in New Orleans, Orin linked to a study out of Columbia’s “SALT” that reported declines in the percentage of African Americans and Mexican Americans matriculating in American law schools since 1993.

Orin tentatively attributed this decline to law schools becoming increasingly concerned about LSAT and GPA scores because these scores are so important to schools’ U.S. News rankings.

I have two related comments.  First, even if we assume that 1993 is the appropriate baseline year (and the study never explains why it is), we see that 9,577 African Americans and 1,434 Mexican Americans applied to law schools in 1992–93, compared to 9,030 and 1,130, respectively, in 2007-08.  In other words, there was a total of just over 11,000 African American and Mexican American applicants  at the beginning of the study period, compared to just 10,160 fifteen years later.  Nevertheless, almost exactly the same number of law students from these two groups matriculated in 2008 as in 1993: 4,060  in 2008, compared to 4,142 in 1993.

So, even though in 2008 there were almost one thousand fewer applicants, only eighty-two fewer individuals matriculated, meaning that a higher percentage of applicants ultimately matriculated.  And this despite the fact that in the interim, public law schools in several states, including, notably, California, Florida, and Michigan, have been legally barred from considering race in admissions.

So, in fact, there is no reason to think based on the statistics provided that law schools have become any less vigorous in their admission of African Americans and Mexican Americans.  ([Corrected:] The study claims that members of the two groups who apply to law school are increasingly well-qualified, but oddly enough, while the study notes an increase in GPAs and LSAT scores, it doesn’t compare these with the increases, if any, of other law school applicants.   Moreover, with regard to LSATs, African Americans’ applicants’ (median? average?) LSAT has increased from 142.6 to 143.7, but the significance of this increase is unclear; 143.7 is still well below the normal cutoff for the vast majority of law schools.

And that leads to my second comment.  U.S News is often blamed for discouraging law schools from admitting minority applicants with low GPAs or LSATs.  Indeed, I’ve heard that one reason various ABA poobahs pushed to require more “diversity” in admissions was the vague sense that some law schools were “cheating” by reducing their minority admissions to improve their U.S. News ranking.

U.S. News, however, only considers, and only has considered, medians, not averages.  While it’s possible to imagine scenarios in which the last few candidates a law school is considering include “diversity” candidates with below median scores and white or Asian candidates with above median scores, in practice in the vast majority of cases the choice will be between “diversity” candidates with below median scores in either LSAT or both GPA and LSATs, and non-minority candidates who are in a similar position.

So, for example, if a law school had one slot left, and the LSAT median of the students who had thus far committed to attending was 160 and the GPA median was 3.3, it wouldn’t make any difference for U.S. News purposes whether the school admited (a) a diversity candidate with a 148 and a 3.32, or a non-diversity candidate with a 157 and a 3.4, or (b) a diversity candidate with a 154 and a 2.7, or a non-diversity candidate with a 155 and a 3.0.  It’s therefore unlikely that U.S. News plays much of a role in discouraging law schools from digging deeper into the applicant pool to admit diversity candidates.

UPDATE: Ilya, above, points to a previous post of mine that I had forgotten about, regarding a similar study from the same crew.  I wrote then, “There are some real oddities with this study. First, the LSAC apparently changed its data collection methods in 2000, and an LSAC page (go to the “Data” link) warns that data starting that year is not comparable to earlier data, which would seem to make the entire exercise of comparing data from 1992 to data in 2005 moot.”  So this “study” is even more dubious than I first thought.

It’s kind of amusing to go back and read Obama partisans’ defenses of Biden in August 2008 (e.g., “The comparisons between Biden and Quayle seem way off. Biden has always been more outspoken, articulate, coherent, and respected than Quayle ever was”), and then read what Obama had to say (privately) about Biden a month later: “How many times is Biden gonna say something stupid?”  And didn’t Obama know about Biden’s reputation as a “gaffe-prone blowhard” before he selected him as vice-president?  I don’t follow inside-D.C. politics very closely, and I knew.

I suspect that U.S. envoy George Mitchell’s threat that the U.S. may withhold loan guarantees from Israel if Israel fails to adhere to U.S. policy re the West Bank would have more “bite” if Israel’s fiscal house wasn’t currently in much better order than the U.S.‘s.

I’ve posted this article, published in the Brooklyn Law Review, on SSRN.  It’s  intended to be a more or less practical guide for judges and attorneys to causation issues in toxic tort cases, not a philosophic treatise (not that there’s anything wrong with that!).  Here’s the abstract:

Since the issue first arose in earnest in the 1970s, courts have struggled to create rules for causation in toxic tort cases that are both consistent with longstanding tort principles and fair to all parties. Faced with conflicting and often novel expert testimony, scientific uncertainty, the gap between legal and scientific culture, and unprecedented claims for massive damages, common-law courts needed time to adjust and accommodate themselves to the brave new world of toxic tort litigation. Eventually, however, courts around the country reached a broad consensus on what is required for a toxic tort plaintiff to meet his or her burden of proof.

While there is a voluminous scholarly literature on various aspects of toxic tort litigation, this Article’s unique contribution is to articulate the new consensus on causation standards, document and criticize the various ways plaintiffs attempt to evade these standards, and defend the courts’ adherence to traditional notions of causation against their critics.

Part I of this Article explains that to prove causation in a toxic tort case, a plaintiff must show that the substance in question is capable, in general, of causing the injury alleged, and also that exposure to the substance more likely than not caused his injury. When a plaintiff was exposed to a single toxin from multiple sources, to prove causation by a specific defendant the plaintiff must show that the actions of that defendant were a “substantial factor” in causing the alleged harm.

Part II discusses plaintiffs’ attempts to evade these standards by hiring experts to present various types of unreliable causation evidence. Examples of such evidence include testimony based on high-dose animal studies, anecdotal case reports, analogizing from the known effects of “similar” chemicals, preliminary epidemiological studies that have not been peer-reviewed, and differential etiologies used to “rule in” an otherwise unknown causal relationship. Additionally, when multiple defendants have contributed to the plaintiffs’ exposure to a potentially toxic substance, plaintiffs often present experts who claim, with no reliable scientific grounding, that the level of exposure (“dose”) is irrelevant to causation.

Part III of this Article argues that courts should be steadfast in requiring toxic tort plaintiffs to meet their burden of proof. Traditional tort principles require that plaintiffs bear the burden of proving actual causation by a preponderance of the evidence, not merely that they were exposed to a risk. To hold otherwise and essentially shift the burden to defendants to disprove causation would open the floodgates to all manner of speculative claims, with potentially devastating consequences for Americans’ well-being. Similarly, with regard to cases in which a plaintiff alleges injury after exposure to a toxin from multiple sources, a given defendant may only be held liable if the plaintiff proves by a preponderance of the evidence that exposure to that defendant’s products was a “substantial factor” in causing that injury. To hold otherwise would amount to an implicit adoption of a system of broad, collective liability that courts have rejected when the issue has been raised explicitly. This section concludes by discussing the negative consequences that arise from speculative toxic tort litigation unsupported by reliable scientific evidence.

HRW’s website has published this piece on the Geneva Conventions and Israel by director Ken Roth.  There are many things wrong with it, but I’ll focus on one piece of blatant dishonesty.

Here’s Roth:

Instead, there is strong evidence that Israel wanted Gazan civilians to pay the price for Hamas’s abuses, and that the decision to impose that cost was taken not by junior officers in the field but by senior government officials.... [A]s the foreign minister at the time, Tzipi Livni, said during a wartime debate in parliament: “On my way here I heard that Hamas declared the man killed by a rocket in Ashkelon ‘one of the Zionists’ despite being an Israeli Arab. They don’t make a distinction, and neither should we.” With culpability running to such senior levels of government, it is no surprise that Israel wants to rewrite the rules.

Roth helpfully provides a link to his source for Livni’s quote, a newspaper article from the Israeli news site Ynet.  Put aside, for a moment, the fact that despite the seriousness of his accusation, Roth is quoting from a newspaper article that doesn’t give a transcript (and thus the full context) of Livni’s remarks.  And put aside that he is relying on an English translation, not the original Hebrew.

The Ynet article itself that Roth cites makes it clear that Livni is not talking, as Roth claims, about Israel not distinguishing between attacking Hamas and attacking ordinary innocent Gaza civilians, but about Israel not distinguishing between its Jewish and Arab citizens.

The context, from the article, is that an Arab Israeli MP lambasted Israel for the civilian casualties in Gaza, and then added . “As a humane person, I oppose targeting civilians wherever they are. Naturally, however, every time an Arab is injured it hurts me more because we are members of the same nation.”  That is when Livni responded, “On my way here I heard that Hamas declared the man killed by a rocket in Ashkelon ‘one of the Zionists’ despite being an Israeli Arab. They don’t make a distinction, and neither should we.”

She then added, “And this is also an examination for the Arab leadership in the State of Israel. You are leading the Arab public on a thin rope. You cannot cross the line between right and wrong, between legitimate and illegitimate, between what is right and what is misleading. This is not a choice between being Arabs and supporting the Jews.”

The context, in other words, could hardly be clearer. Livni is criticizing Israeli Arab MP, and other leading Israeli Arabs, for supporting Gaza Palestinians based on common ethnic heritage rather than supporting their government in combating anti-Israel terrorism that kills Israeli Jews and Arabs.

Nevertheless, Livni’s quote has shown up, out of context, as evidence of Israel’s purported disregard for civilians, on a variety of anti-Israel propaganda sites.  Unfortunately, HRW’s website meets that description.

That’s the name of a mock reality show available online on Shalom TV.  It’s about four single Jewish twenty-somethings in Manhattan who have agreed to have their online dating life followed by t.v. cameras for eight months.  I’ve watched the first two episodes, and two things strike me.  First, because Shalom TV is aimed at a Jewish audience, it doesn’t have the constraint that seems to require all mainstream Jewish t.v. characters to only be “background” culturally Jewish (e.g., Seinfeld), and to have non-Jewish partners (e.g., Paul Reiser on Mad About You) .  Second, despite the fact that it’s clearly a low-budget show, the writing is very good.  In particular, it has the most realistic first-date dialogue, with all its awkwardness and potential, I’ve ever seen.

UPDATE: I was under the impression that all of the dialogue was scripted, but according to one of the actor’s blog, some of it is improvised, which perhaps explains its realism.

Taxprof notes:

The Standards Review Committee of the ABA Section of Legal Education and Admissions to the Bar has proposed revising accreditation standard chapter 3 (Program of Legal Education) to incorporate “Student Learning Outcomes.”  The committee will discuss the proposed standards as part of the AALS Annual Meeting Program on Friday January 8, 2010, from 4:00 p.m. — 5:45 p.m. in the Napoleon Ballroom on the third floor of the Hilton New Orleans Riverside.

Looking at the proposal, we find that “the learning outcomes shall include”:

(3) knowledge and understanding of:
(ii) the legal profession’s values of justice, fairness, candor, honesty, integrity, professionalism, respect for diversity and respect for the rule of law;

No further explanation is provided as to what “knowledge and understanding of ... respect for diversity” entails.   My suspicion is that this is just p.c. pablum inserted to satisfy constituencies that demand it.  And there’s nothing inherently wrong with “respect for diversity,” if this means “respecting and treating fairly all clients and colleagues regardless of their background.”  Indeed, this is praiseworthy.

However, given the past record of ABA accreditation committees, who have rather loosely interpreted ABA guidelines to try to enforce a political agenda on law schools–for example, requiring strong affirmative action preferences in admissions when there was no textual basis in the accreditation guidelines for such a requirement–one could easily imagine this language being misused in the future.   Teaching “respect for diversity” could easily be interpreted as teaching that law schools, law firms, etc., should and must engage in affirmative action preferences.

Without further clarification, the ABA could easily threaten the accreditation of a law school if a substantial percentage of the faculty signed a brief opposing Grutter–like diversity admissions; or if students interviewed by the accreditation people complained that the faculty seems to them insufficiently supportive of “diversity” (i.e., affirmative action) in its teaching; or if professors assigned academic papers arguing that homogenous organizations or societies function better than heterogeneous ones; or if the law school failed to discipline students who undertook a satirical “affirmative action bake sale”; and so forth.  After all, any of these hypotheticals could arguably decrease students’ “respect for diversity,” depending on how this phrase is interpreted.

I won’t be attending the committee meeting, but I hope someone who does attend raises these concerns, and asks the committee to clarify the guidelines such that they make clear that teaching “respect for diversity” does not obligate a law school or any of its constituents to take any given position on the desirability of affirmative action preferences, or any other political position (such as the pluses or minuses of homogenous and heterogeneous organizations).

Inside Higher Education has a very sober account of a panel at the annual Modern Language Association meeting on why English departments tend to ignore American Jewish literature, while spending significant resources on other ethnic literature.  Despite its sobriety, the account left me alternatively laughing and shaking my head (and sometimes both: “Jewishness has been associated with Israel, white privilege, colonialism and racism”) at the banal idiocies of modern academia.

One serious point raised in the article is that Holocaust studies dominates the study of Jewish literature.  I remember when I was a student at Brandeis, with what was then the top Jewish Studies department in the country, by far the most popular Jewish Studies course, and one of the most popular courses in the entire university, was a course on the history of the Holocaust.  It says something disturbing and unhealthy about American Jewish life that for both Jews and non-Jews, a three thousand year old living tradition and culture is so reduced to the horrific events of the mid-twentieth century.

UPDATE: And here’s a cogent comment on the IHE piece from one “Michael Greenspan”:

What most strikes this non-academic is the reasoning with which some of those quoted argue for greater study of Jewish literature. Prof. Cutter points not to great Jewish writers but to Jewish traumas. Prof. Hoffman appears to accept the logic that a group’s “marginal status” decides whether that group’s literature is worthy of study. This attitude — that the greater the group’s perceived success, the less deserving of attention the art produced by members of that group — is remarkably small-minded. And if suffering supplies cachet, no wonder that “Holocaust literature . . . should be so much more present — in literature departments in the United States — than American Jewish fiction and culture.” How could it be otherwise?

Via the Atlas Foundation blog, a rather idiosyncratic list.  The top 3 are Bryan Caplan’s Myth of the Rational Voter, Brian Doherty’s Radicals for Capitalism,  and Hernando De Soto’s The Mystery of Capital.

Atlas also solicits suggestions for books not on the list.  Much to my delight, Damon Root of Reason responds:

Obviously any such list will have its omissions, but I’d like to nominate one additional book that deserves real attention: legal historian David Bernstein’s excellent Only One Place of Redress: African Americans, Labor Regulations, & the Courts from Reconstruction to the New Deal. Bernstein meticulously documents the ways that Progressive and New Deal economic regulations, including labor laws, occupational licensing laws, and prevailing wage laws, directly harmed African Americans. In contrast, on those occasions when state and federal courts actively protected economic liberty against this state abuse, blacks were among the prime beneficiaries, a process that the New Deal takeover of the Supreme Court brought to a disastrous end.

So that’s my vote for a book that should have made the cut.

UPDATE: For those who may be interested, Amazon has used copies for <$10, which is the cheapest I’ve seen it (retail is $49.95).