The Volokh Conspiracy

is up and running — this is the product of a consortium of top law reviews to produce op-ed-length online versions of their full-length paper articles. Here’s a quote from their press release (I’m cribbing from Larry Solum’s post):

A consortium of America

Elena Kagan has been confirmed as Solicitor General. Early on, before becoming Dean of Harvard Law School, she showed wise judgment by giving me an A in Administrative Law, which I’m teaching right now. And, in one of her first acts while dean, she graciously moderated my target shooting club’s debate featuring Eugene, Alan Dershowitz, and Dennis Henigan of the Brady Center. Congratulations, Elena!

My friend Tom Palmer, with his colleagues at the Atlas Global Initiative for Free Trade, Peace, and Prosperity, is (as part of a larger campaign) circulating a free trade petition, which will be unveiled on April 1st before the G20 meetings in London. He encourages everyone, especially (but not only) economists, to sign it, and to share it with friends, colleagues, professors, and the like. (I also recommend that people cross-post this on their blogs, especially econny blogs.)

Here’s the text of the petition:

Free Trade Is the Best Policy

The specter of protectionism is rising. It is always a dangerous and foolish policy, but it is especially dangerous at a time of economic crisis, when it threatens to damage the world economy. Protectionism

My colleague Johnny Rex Buckles has just posted the following paper on SSRN: Do Law Schools Forfeit Federal Income Tax Exemption When They Deny Military Recruiters Full Access to Career Services Programs? The Hypothetical Case of Yale University v. Commissioner. Here’s the abstract:

Most United States law schools prohibit prospective employers who discriminate against students on any of several grounds, including sexual orientation, from utilizing the schools’ student recruitment programs conducted by their career services offices. Because homosexuals who disclose their sexual orientation may not serve in the United States armed forces, some law schools at times have limited the channels through which military recruiters may interview students.

In response to the application of these anti-discrimination policies to military recruiters, Congress enacted the Solomon Amendment. The Solomon Amendment eliminates certain federal funding otherwise available to an institution of higher education if it denies military recruiters the same access to its students and campus that other recruiting employers receive.

Although the United States Supreme Court has recently upheld the constitutionality of the Solomon Amendment, another legal issue — one that existing legal scholarship has never considered — remains outstanding. The issue is whether private law schools that have denied military recruiters full access to student recruitment programs have forfeited their federal income tax exemption under section 501(c)(3) of the Internal Revenue Code under the public policy doctrine announced in Bob Jones University v. United States.

This article rigorously analyzes this provocative issue by positing a hypothetical Supreme Court case, Yale University v. Commissioner, in which four opinions written by fictional Supreme Court Justices determine the tax-exempt status of several private, free-standing law schools or their affiliated universities. This format not only facilitates an analysis of the nuances of the public policy doctrine, but also exposes and illustrates the vagaries of the doctrine.

Building on Reforming the Public Policy Doctrine, 53 U. Kan. L. Rev. 397 (2005), this article concludes that the hypothetical case of Yale University v. Commissioner demonstrates that the public policy doctrine should be reformed.

Johnny is more positive about the prospects for salvaging the Bob Jones doctrine than I am, but this is nonetheless a fun and intriguing read.

There are a number of Latin renditions of “Rudolph the Red-Nosed Reindeer” — this site collects a bunch, both in the main text and in the comments. The first version is listed as “translator unknown, widely repeated on the Internet,” and indeed, this is the version I first came across. Dissatisfied with the Latin grammar and rhymes, I instead wrote the following — loosely based on the original but substantially altered — which you are free to use in caroling this holiday season:

Rudolpho cervo erat
Nasum ruber lucensque;
Quicumque hunc videret
Hunc diceret candere.

Alii cervi omnes
Semper hunc deriserant;
Cum misero Rudolpho
In ludis non luserant.

Sanctus Nicholas dixit
Sub festum nubilum:
“Naso claro, Rudolphe,
Hodie carrum ducesne?”

Tum cervi clamaverunt,
“Omnibus dilectus es!
Rudolphe rubri nasi,
In historiam descendes!”

For an entirely original one — though this one is a lot harder to sing — try my rewriting of the same carol in the style of Catullus (hendecasyllables). I’m going from memory here, so I hope this is right:

De Rudolpho cervo rubri nasi

Lucens et rubicundum erat Rudolpho
Cervo nasum, aliquo umquam idem vidente
Quod et fulgere saepe diceretur.
Irridere alii hunc iocis solebant
Cervi, cum quibus haud ei licebat
Ludos ludere idoneosque cervis.
Sub festum nubilosum honore Christi
Tum Sanctus Nicholas ei appropinquat –
“Carrum duc hodie, Rudolphe,” dicit,
“Tuo tam nitido calente naso?”
Cervi omnes igiturque diligebant,
Clamabantque, “Ruber Rudolphe magne,
Superstes tua fama erit per aevum!”

(Note: I previously announced both of these poems on this blog five years ago.) If anyone ever feels like arranging this, please let me know!

UPDATE: Commenter Joe Power points us to the Old English version about Hrodulf:

Hw

I’m not an expert on civil rights law or anything, but just looking at the D.C. harassment case that Eugene just linked, it looks like a more literalist reading of the D.C. Code would have been kinder to the plaintiff.

1. Analysis under the D.C. Code

Here’s what the district judge says:

Plaintiff’s sexual harassment claims fail because she was not an 

Check out this video restaurant review. “I’m kind of on a budget, so I’m looking for cheap, but flavorful, penis.” This is work-appropriate. Hat tip: Paul Eremenko.

UPDATE: For “work-appropriate,” substitute “arguably work-appropriate, depending on your workplace.

The Manhattan Institute has released Greater Justice, Lower Cost: How a “Loser Pays” Rule Would Improve the American Legal System, by my friend Marie Gryphon. From the executive summary:

Effects of Loser Pays

This paper infers from its examination of the scholarly literature how loser pays would affect the American legal system:

• Almost every economist who has studied loser pays predicts that it would, if adopted, reduce the number of low-merit lawsuits.

• A loser-pays rule would encourage business owners and other potential defendants to try harder to comply with the law. Doing so should produce fewer injuries.

• Loser pays would deter ordinary low-merit suits, but it would not discourage low-merit class actions to the same extent because the risk of enormous losses, rather than the costs of legal defense, is the primary source of pressure on defendants to settle. . . .

Litigation Insurance

This paper provides an overview of how litigation insurance would ensure access to justice for poor and middle-class plaintiffs under an American loser-pays system:

• In loser-pays jurisdictions, insurance covering the legal costs of the plaintiff can be purchased at the same time that a lawsuit is filed for a reasonable premium advanced by a plaintiffs’ attorney as part of the ordinary costs of litigation.

• After recently scaling down its legal aid services, which were funding civil litigation for poor plaintiffs, England witnessed massive growth in its litigation insurance market; the same thing is likely to happen in the United States if it adopts a loser-pays rule.

To be successful in the United States, a loser-pays reform must be designed to reduce the number of nuisance lawsuits, control overall litigation costs, promote settlement, and ensure access to justice for plaintiffs with strong legal claims. To achieve these disparate goals within the existing American legal system, this new Manhattan Institute proposal incorporates a modified offer-of-judgment rule, which ties the amount of any fee award to the size of the parties’ settlement offers, and advocates the removal of legal barriers to the establishment of a robust litigation insurance industry in new loser-pays jurisdictions.

Extra bonus: A foreword by Giuliani. Extra extra bonus: My name in the acknowledgments. Download of the week!

From United States v. Crist, the Fourth Amendment case that Orin discussed the other day, p. 2:

After [they] explained what they were doing, Crist angered.

I had never seen this usage of “anger” before. I just looked it up in the OED:

d. intr. (refl. pron. omitted.) rare.

c1400 Destr. Troy XV. 6911 Vlixes..angrit full sore.
1786 BURNS Sc. Drink xiii, When neebors anger at a plea.

Time to send it in to the OED folks! But, regarding “Crist angered,” cf. “Jesus wept.”

“Charlie” or “104” for short, born 8/12/08 at Memorial Hermann Hospital in Houston. For those of you who follow the stats, he weighed 9.5 lobsters at birth and was 21.5 inches long. (Bonus points if you can figure out why he’s 104. [UPDATE: The answer is in the fourth comment to this post, so if you want to figure it out yourself, try to do so before reading the comments.] Once you’ve figured that out, it is also a Useful Fact that 8 × 12 + 08 = 104. Unrelatedly, 8 + 12 + 08 is a perfect number.)

My answer to Orin is that “law” can validly mean many things, depending on the context and what you want to use it for.

For instance, Holmes — explaining his famous “bad man” view of the law — says that law is “the prophecies of what the courts will do in fact.” (See The Path of the Law, 10 Harv. L. Rev. 457, 461 (1897).) We can expand this a bit beyond courts and say, with Eskridge and Frickey, that “law is a prediction of the rules that interacting government institutions will apply.” (See Law as Equilibrium, 108 Harv. L. Rev. 26, 77 (1994).)

Thus, in most of our lives, most of us don’t care what the law is in any abstract sense (I sure don’t!); we just want to know what we should or shouldn’t do if we want to avoid being punished by someone. That, to us, most of the time, is Law. Constitutional law is just a subset of law, so, among other things, we might want to know what we should or shouldn’t do if we want to avoid being unconstitutional, which will usually be relevant only if we’re some government actor. (But see Amend. 13, which means any private slaveholder is acting unconstitutionally!)

So usually, constitutional law will be current Supreme Court doctrine. It’s possible that other branches might be applying their own constitutional rules — maybe the Executive Branch has a policy of withholding government funds from property development projects it believes are unconstitutional, and maybe it has a different view of the Takings Clause than Kelo — so then, from your perspective, constitutional law would also consist of the views of those other branches.

But that’s not the only view of law! For instance, there are all sorts of unenforced or underenforced constitutional commands. The Suspension Clause says the writ of habeas corpus won’t be suspended, unless in case of rebellion or invasion the public safety requires it. If Congress suspends the writ, it’s unlikely that the Supreme Court would ever judge whether the public safety really requires it, or whether what’s going on is really a “rebellion.” There are lots of political questions like that, and other “underenforced constitutional norms.” It’s not that there’s no law to apply — it’s just that whatever law there is is unenforceable.

Does that mean there’s no law? From the “bad man” perspective above, that is correct — there’s no law. Congress can suspend habeas even when there’s no rebellion or invasion or the public safety doesn’t require it. But suppose — just suppose — that for whatever reason, you wanted to follow constitutional commands, perhaps because you took an oath to that effect and want to live up to it. In that case, the Constitution becomes an independent source of duties for you, and you have the obligation to figure out what duties it imposes.

Now you could just decide to listen to the Supreme Court all the time, or on certain questions (perhaps whenever there’s something enforceable), or whatever; but that will be your choice. There’s nothing in the Constitution that says the Supreme Court is always right. If you have a view on how the Constitution should be interpreted, and, after due consideration, you decide that you disagree with the Supreme Court, why not follow your own view? (Especially, as I said in my previous post, if the Supreme Court won’t stop you, for instance if you take a more protective view, not as a matter of policy but as a matter of constitutional meaning.)

So suppose you decide that you believe in original public meaning. And you observe that, low and behold (moo!), all these originalist textualists have already created a whole body of work explicating that meaning! No need to read those pesky Supreme Court opinions (except for prudential reasons, to the extent they’d actually frustrate your plan); you’ve already got a whole set of binding principles that tell you how to act. What are these principles if not law?

Well, you don’t have to call them law, but from your perspective, they’re as binding on you — if unenforceable by judicial means — nay, more binding on you!, than the stuff laid down in Supreme Court opinions. It’s what the “bad man with a conscience” has to follow if he doesn’t want to be punished by his conscience. No, I don’t think that all moral rules that you feel are binding should be called “law” — if you were elected to office wanting to implement Kantian ethics, that wouldn’t be law. But I do think it’s fair to call them “law,” at a minimum, if they derive from what are commonly recognized as legal principles, for instance, interpretation of a legal document. Once what you’re doing purports to derive from a statute or constitution or treaty or suchlike, the rules that you derive that you claim bind you and should bind others are properly called “law.”

Yes, this means that Hectorism can be considered “law,” and arguments deriving from Hectorism are “legal arguments.” It doesn’t mean that non-Hectorists should give it any consideration, because, life being short, it’s only worthwhile considering theories that (1) are actually applied in the world by at least some people, OR (2) are actually advocated in the world by people you respect, OR (3) are, in your view, meritorious.

And, as a final note: These arguments don’t need to be OUGHT arguments at all. I’m perfectly capable of arguing that “the original public meaning of the Second Amendment implies position X,” even if I don’t believe that original public meaning has any normative value at all. It’s just fun to talk about it! Larry Solum’s recent article on Semantic Originalism, if I understand it correctly, makes the point that the meaning of the Constitution is original public meaning, but separates that from the question of whether one should actually follow the meaning of the Constitution.

So a non-originalist can make arguments from original public meaning that are contrary to Supreme Court doctrine; those can definitely be IS arguments about the meaning of the Constitution without being OUGHT arguments. And of course one can make OUGHT arguments without making any legal IS arguments about anything. For instance, “We should adopt position X because it’s required by Kantian ethics” is an OUGHT argument, and is also an IS argument about Kantian ethics, but is not a legal IS argument.

In general, I endorse the is/ought distinction, in law as in other places. When Orin tells you what Supreme Court doctrine says, it doesn’t mean he endorses it as the correct doctrine, the correct understanding of the Constitution, or whatever.

However, I think the line may be a wee bit fuzzier than Orin lets on. As an initial matter, consider that, under many constitutional theories — which many people subscribe to — the Constitution “means” something independently of whether courts have recognized it. People holding such theories can differ on what that meaning is, and on what interpretive theory you should use to figure out what that is — for instance original public meaning or something else — but these people would each agree that there exists some meaning of the Constitution. (Incidentally, I’m taking no position here on whether that view of a True Meaning is correct. This is an “is” point, not an “ought” point! In any event, I could phrase my argument without recourse to such views; but it’s simpler this way.)

So, when we ask whether the Commerce Clause allows regulation of intrastate marijuana, one can give an “is” description of what the Commerce Clause means under one’s preferred theory (e.g., “no it doesn’t because the original meaning of ‘interstate commerce’ didn’t cover that”), but that description would at the same time often be an “ought” description because usually such arguments would be accompanied with an argument that the theory is the normatively correct one. So such a description would be both “is” and “ought” at the same time, and more importantly, it could differ radically from what the Supreme Court says the Constitution means.

O.K., Orin might say — if I might put words into his mouth — but, he might continue, when I’m describing doctrine, it’s clear what I’m doing — look, I’m citing Supreme Court cases! So (says the hypothetical Orin) let me translate my point into your rhetoric: Don’t confuse “an argument about what current Supreme Court doctrine is” with “an argument about what the Constitution really means in your view, which really comes down to what you think Supreme Court doctrine ought to be.”

Fair enough. But it may be misleading to claim that “Supreme Court doctrine” is the same thing as “constitutional law.” For instance, it’s also a view held by many that everyone who takes the constitutional oath — say all public officials — also have an independent duty to follow the Constitution. And there’s no necessary reason why the Supreme Court’s pronouncements on what the Constitution means should be authoritative. They’re just one interpreter (well, nine) among many possible ones.

Now you’ll probably want to avoid doing what the Supreme Court says is unconstitutional, in a context where they’re just going to reverse you, just like you want to avoid walking down a dark street in a dangerous part of town — it’s probably prudent, but it doesn’t mean you accept it as the way things should be. (But not even everyone agrees with that — some argue that there’s a duty to follow your own view of the Constitution, even if it means reversal, because that’s just your duty as a defender of the Constitution.)

But there’s no reason why you can’t take a stricter view of the Constitution than the Court. For instance, as a legislator, you might say: “The Supreme Court says this law is constitutional, but I disagree, so I’ll vote against it on constitutional grounds.” Or the President could use the same argument for vetoing a law, or for enforcing a law in a particular way. (Some have also written about the President’s duty to veto, and the President’s duty not to enforce unconstitutional laws.) Or regular folks could use their own view of the Constitution in making arguments to these officials.

This stuff rarely gets litigated. For example, regular people don’t need to account to anyone for the arguments they make; elected officials don’t need to give reasons for why they vote against or veto something; and so on. But these are still arguments about the meaning of the Constitution, or, if you want to put it differently, about the substance of constitutional commands.

Now, is this constitutional law? Because, some might say, arguing about сonstitution meaning isn’t the same as arguing about constitutional law. For instance, in the view of some, “law” is just what comes out of the courts. (Perhaps constitutional law, in this view, should be influenced by constitutional meaning, but it might diverge from constitutional meaning sometimes, either for good or for bad reasons; but the two are different things.) I disagree, and so does a substantial literature on “popular constitutionalism.” I won’t try to give a complete definition of “law” here, but I’ll say that at the very least, legal principles include any principles that purport to bind government actors in a way that purports to be independent of mere policy preferences.

For instance, this is a legal argument: “You, Senator X, have the duty to vote against this law regardless of how good an idea you think it would be as a matter of policy, because it’s contrary to the true meaning of the Constitution, by which I mean the original public meaning.”

And if Senator X himself claims, “I think this is an excellent idea, but sadly I feel bound to vote against it because it’s contrary to the Constitution, even though the Supreme Court would uphold it,” he’s enunciating a principle of constitutional law, though not a principle of a judicial variety, and not one that could actually be enforced in any court.

An implication of all this is that if Senator X votes against a law because he (correctly, in your view) thinks it’s unconstitutional, and the law gets enacted anyway, and then the Supreme Court (incorrectly, in your view) upholds it, then it’s perfectly valid to say that Senator X understands constitutional law better than the Supreme Court does.

What this all comes down to is that when Orin makes an argument about the state of current Supreme Court doctrine, you should listen to him and not confuse it with an argument about what Supreme Court doctrine ought to be. But you also shouldn’t think that Supreme Court doctrine exhausts the whole of constitutional law. And in particular, if your argument about what Supreme Court doctrine should be is grounded in some theory of constitutional interpretation, your “ought” argument can also be an “is” argument about constitutional law, though not about the Supreme-Court-doctrine branch of it.

Does anyone have recommendations for a good book to read about the Civil War? Here are my criteria:

1. It should be written by a serious historian. (But it doesn’t have to be academic — if you think The Civil War for Dummies or The Complete Idiot’s Guide to the Civil War are good, feel free to recommend them.)

2. It should be short, say under 500 pages. (This rules out, say, Shelby Foote’s three-volume work or McPherson’s 950-page Battle Cry of Freedom, no matter how good they are.)

3. It should be a general history, not focused on one particular issue like Goodwin’s Team of Rivals, a naval history, a photographic history, a history of the Civil War as it relates to Texas, etc.

4. It should tell a historical narrative, as opposed to, say, a reference guide, 101 trivia facts about the Civil War, or the like.

5. It should be about the U.S. Civil War!

6. It should cover both the political and military history of the Civil War.

7. It should have good coverage of the runup to the Civil War, and preferably should also have good coverage of Reconstruction.

8. It should be non-fiction, not a novel or alternative (“what-if”) history.

Well, I think that covers it. If you recommend a book, please note whether you think it has a slant of some sort (e.g., pro-Southern, pro-Lincoln, whatever). (Bias is no problem, and I don’t even mean the word in a negative sense, but it’s good to know!) If there’s something good that doesn’t fit all the categories (e.g., “great book but no coverage of Reconstruction,” or “the best book hands down but unfortunately 600 pages long,” or “actually about the Spanish Civil War”), feel free to note that too. Thanks!

on a Friday the 13th (like today), my family, including Eugene and me, left the Soviet Union.

I’m delighted to report that I’ve accepted a position as Assistant Professor at Emory Law School, in Atlanta. That position will start in Fall ’09.

During the ’08-’09 academic year (while my wife clerks for Fifth Circuit Judge Jerry Smith in Houston), I’ll be a Visiting Assistant Professor at University of Houston Law Center.

Does anyone have a copy of Durrenmatt’s Der Besuch der alten Dame in German? If it contains the “Anmerkung” at the end (in German), I would appreciate a copy of that part, with the title pages. Thanks!

In today’s Washington Post, Ruth Marcus has an op-ed piece bemoaning the public release of the federal budget documents exclusively in electronic form, rather than in the form of a 2,200-page printed document. “It isn’t the same,” she writes, “as having the volume — volumes, actually — in hand, being able to flip through the tables, to see the columns neatly arrayed without having to scroll up or down to decipher the details.”

It’s “more than simple nostalgia” for the experience of paper, she doth protest:

“There is a clarifying immediacy to holding the document itself, not settling for its online representation . . . To read a document online is to face constant temptations to stray from the text. . . . [To] my school-age children, [who]are being taught to compose at the keyboard, writing in longhand seems as antiquated as dipping quill in ink. But there is something lost in intellectual rigor by abandoning — indeed, never really learning — the laborious discipline of writing out a first draft.”
“Online is much harder to use. It makes the information less accessible and harder to ferret out. Frankly, it is no fun staring for hours at a computer screen to find obscure spend-out rates. You can’t underline, can’t make a note on a page, and who wants to read a computer in bed?” 

Hmmm . . . can’t say I get the point about the “intellectual rigor” of writing longhand. Sure, releasing the information in electronic form is different than having the Government Printing Office produce a couple of thousand copies — different as in “better.” It makes the information “less accessible”? You’ve got to be joking — it’s “less accessible” when anyone in the world who wants a copy can get one than when you have to stand in line at the GPO and lug away your copy? Harder to ferret out information? How so? I find searching through 2200 page documents a whole lot easier when they’re in electronic form — and if you don’t, if you really “crave the comforting certainty of ink on paper” or are desperate to underline or make notes on a page or read in bed, you might find it useful to buy a “printer,” a fabulous little device that can take electronic documents and, quite successfully, transfer them onto paper; your local Kinko’s would be more than happy to prepare as many 2200-page versions of the budget as you would like.
What Ms Marcus is really asking for, I suspect,is a taxpayer subsidy for her craving — the good old days, when reporters could get nice free copies at the GPO at taxpayer expense. If the federal government wants to print up a few thousand copies to give away, I don’t have a big problem that — but couching it as some sort of plea for information purity is a bunch of nonsense. 

Oh wait, I mean Microsoft and Yahoo! ... which does smell, to me, a lot like the AOL-Time catastrophe of just a few years past. The aging giant of days of yore (that would be Microsoft) looking for a way to get hip (that would be Yahoo!) and BIG in a hurry. But (you heard it here first) it will end in tears. Dust off those stories about how the two cultures don’t merge, and about how the “expected synergies” never seemed to materialize. You have to be big to beat google at its game, but you can’t buy your way big. I’m gonna short this deal, for sure. 

The Muttonhead Quail has been found:

I invite everyone to join the Muttonhead Quail Movement group on Facebook.

In my last post about vampires, I recommended Paul Bibeau’s Sundays with Vlad: From Pennsylvania to Transylvania, One Man’s Quest to Live in the World of the Undead.

I’ve now finished the book, and here are a couple more funny snippets:

“I was having parties, orgies with hot Dutch girls, and going to England on weekends,” [said Father Sebastiaan, a creator of the vamp club scene]. “One day I went to a music festival and did so many drugs I woke up in Sweden.” (p. 155)

The following is about Tray White, a documentary filmmaker who covered the Minnesota gubernatorial campaign of vampire satanist (and impalement advocate) Jonathon Sharkey:

“At first I wanted to pull all these crazy-ass pranks on him,” White says. “I wasted a couple of days just fucking with him, making up names and saying, ‘So Sir Furrington of East Timor has threatened to nuke the state of Vermont. If you were president right now what would you do?’ He’d start talking about how he was going to feed off the children of Sir Furrington.” White threw in Thom Yorke, the name of the lead singer of his favorite band, Radiohead. He pretended Yorke was a political leader in Britain who had said he would invade the state of Minnesota.

“I have him on camera saying, ‘I’m going to kill Thom Yorke.’” . . .

“He kept saying he was going to kill George Bush,” says White. “I told him, ‘Okay, dude, you can’t say that. You can say when you’re elected, you’re going to try George Bush, and once he’s found guilty, then you’re going to impale him . . .” He doesn’t know how much good it did. (pp. 172–73)

And finally, discussing an article called “To the Parents of a Sanguinarian,” which is “filled with tips for a parent whose child has just come out of the closet as a vampire”:

This makes me have a flash of my son growing up and having the Most Uncomfortable Conversation Ever with him.

Son: I want you to know something about me.

Dad: I think I know what you’re going to say, and I want you to know, it’s all right. Your mother and I love you just as you are. There’s nothing wrong with being gay.

Son: I’m a vampire.

Dad: (Pause) There’s nothing wrong with being gay.

Son: I’m not gay, Dad. I’m straight. But I have a need for fresh human blood.

Dad: (Longer pause) You and your boyfriend are always welcome to come home, and I want you to know . . .

Son: I don’t have a boyfriend. I have a girlfriend. She’s a dental hygienist, and she’s Type O Positive. Dad, we’re vampires, and we’re happy together. We drink each other’s blood. Vampires, Dad.

Dad: Couldn’t you just try to be gay? For your mother?

This concludes my plug for the book. The author, Paul Bibeau, also points out that he has a new blog, The Dracula Innocence Project. “Was Dracula framed? Why did a small group of people chase a terrified Transylvanian dignitary through the streets of London, and fatally run him through with a blade? We’ll examine the evidence. You be the judge.” Check it out!

I’ve just started reading Sundays with Vlad: From Pennsylvania to Transylvania, One Man’s Quest to Live in the World of the Undead, by Paul Bibeau. As the back cover explains:

At eight years old, Paul Bibeau had the footie pj’s scared off of him when his sister sprang out of a crawlspace in the dark wearing plastic fangs. It was the start of a lifelong fascination with vampires. Now a “grown-up” journalist, he has embarked on a quest to discover how a second-rate Wallachian Prince named Vlad, inserted into an odd little nineteenth-century book by some guy named Stoker, became such a pervasive cultural icon.

I’m about fifty pages into the book now; the early chapters, mostly about Romania, are very good and funny. But for now, let me share with you one passage from the book (pp. 34–36), about why Romanians haven’t been so keen to capitalize on the international fame of their native son Vlad Dracula.

As of 2000 almost half of Romania’s population lived in poverty . . . . But the country also had a potential fortune — a character whose legend had launched a multimillion dollar media empire. Romania was like a homeless guy carting around one of those stolen supermarket carts filled with bags of aluminum cans, a pile of dirty laundry, a half-drunk bottle of Night Train, and a framed Van Gogh original in mint condition. It just didn’t make sense. Why couldn’t the country cash in? . . . .

Sighi?oara [a Transylvanian town that at one point was going to be the site for a Dracula theme park] had already seen its share of Goths . . . and locals wanted none of it. At a rock music festival a few years ago, it was mobbed with up to 90,000 people. . . . [T]he rock fans actually scrawled pentagrams on the gravestones at the local church . . . .

[I]n late 2001 . . . a Miramax crew filmed a series of movies called Dracula Resurrection there. Locals reported stumbling over fake-blood-soaked mannequins in their town square. “My daughter was terrified,” said one townie.

It wasn’t hard to see their point. To Romanians Vlad was a national figure, not a vampire. Imagine foreigners coming to visit the Lincoln Memorial by the thousands — wearing stovepipe hats, false beards . . . and plastic fangs. They love Lincoln. They love how he can turn himself into a bat. How he freed the slaves and rises at night to suck the blood of the living. Imagine you know you could make major bucks off these freaks if you chiseled a pair of wicked-looking teeth on Lincoln’s statue.

You’d have to be desperate to even consider it.

As someone whose middle name begins with “Vlad,” I may be blogging in the future about my own interests in vampires and the law — what Buffy has to do with property law and the law and economics insights of Angel.

has gone to, among others, my former professor, Eric Maskin. Rather than try to summarize his accomplishments myself, I’ll just refer you for now to Marginal Revolution (actually, just go to the main page, as there are a bunch of posts, and there may be more later) and the sources linked there.

Remember the lawsuit challenging the qualifications of the Deputy Director of the Patent & Trademark Office? As was hinted at in the first two comments to that post a few months ago, Hanah Metchis Volokh, a recent addition to the clan, has just written what is sure to become the definitive piece on the subject, called “The Two Appointments Clauses: Statutory Qualifications for Federal Officers.” Here’s the abstract:

Congress often exercises control over appointments to federal office by writing job qualifications and putting them directly into the statute creating the office. This practice is best examined by viewing the Appointments Clause not as a single entity, but as two related clauses that set up two very different methods of appointment: presidential nomination and Senate confirmation as the default method, and vesting in one of three authorized positions as an optional alternative method for certain types of officers. When creating an office, Congress must choose one of these methods for appointing the officer, but cannot create a hybrid method combining the two procedures.

In this article, I examine the text, history, and structure of the Constitution to determine what is required by each of the two appointments processes. I conclude that statutory qualifications are consistent with the Constitution’s process for vested appointments, but inconsistent with the nomination and confirmation process.

Hanah’s article will soon be published in the University of Pennsylvania Journal of Constitutional Law.

A fascinating student note from the Minnesota Law Review, not so much for its subject matter as for how it came to be published.

Here’s what the note is about. From its introduction (paragraph breaks added):

This Note argues that because law is limited to placing external constraints on human behavior, religion, through its capacity to internally constrain human behavior, acts as an indispensable assistant to the law in preserving public order.

Part I details how, in recent decisions, the Supreme Court has used history to interpret the Establishment Clause. Part II argues that the Court’s reliance on history is misplaced because the historical evidence of the clause’s meaning is inconclusive.

Part III provides an alternative approach to interpreting the Establishment Clause that focuses on the ability of religion to constrain human behavior. This Note concludes that while it is sound public policy to support religion, religion is only effective insofar as it instills faith within its followers. Because no religion appeals to all men, the government should impartially promote religious worship and instruction. 

You might notice, if you read the article, that it doesn’t refer to any cases — or anything else — more recent than 1949. It turns out there’s a reason for this. Here, according to the SSRN abstract, is the backstory (you can find a more complete story, in the author’s own words, on the website itself):

Mr. Stiegler served in the Second World War and then returned home to Minnesota to attend law school. He wrote this article while a student-member of the Minnesota Law Review during the 1948–49 school year. While reviewing Mr. Stiegler’s first draft, the Note Editor rose, slapped his hand on the table proclaiming: I am Catholic. It is the one true religion. This Note will never be published. Mr. Stiegler’s name was subsequently removed from the masthead of the Minnesota Law Review and he was denied credit for the activity for his last year of law school.

For fifty-seven years the manuscript lay hidden in his desk. In March 2007, Mr. Stiegler contacted the current leadership of the Minnesota Law Review, and they decided to bring Mr. Stiegler’s article to the public by editing the work and then publishing it on SSRN and on the webpage of the Minnesota Law Review. Mr. Stiegler’s ideas and arguments are still relevant today. 

(Note: The rest of the SSRN abstract doesn’t summarize the article very well, which is why I gave the summary from the Note itself.)