Someone told me a few hours ago that the Superbowl was today, and that apparently the Packers and Steelers are playing. On this occasion, I thought I’d share my unpatriotic attitude toward sports: Whoever wins is presumptively the best team and therefore deserved to win, so (though I would never watch the game) I’m happy however it turns out. But it follows that (assuming, counterfactually, that I watched the game) I wouldn’t know whom to cheer for until the end.
Author Archive
I’ve only read one book by Piers Anthony — I believe it was Shade of the Tree (1986), perhaps thirteen years ago. It was very forgettable, probably even bad, but one bit I remember went something like this:
He hadn’t had a lot of relationships, and those he had had had been bad. Had had had!, he thought. What atrocious grammar!
Or something like that; please excuse any lapses in my memory. Of course there’s nothing atrociously (or at all) ungrammatical about this, and it’s not even necessarily bad word choice.
But I would have suggested that, since the author wanted to go that route, he could have chosen “…and those he had had had had problems.”
(See here for other instances of “had had had been” in books. Also try to punctuate the following sentence: james while john had had had had had had had had had had had the teacher’s approval.)
UPDATE: Oh yes, also what I remember was the repeated use of “welkin” as a synonym for “sky”.
Anyone interested in renting an apartment in glamorous Beverly Hills 90211?
It’s a second floor apartment, one block from La Cienega and Wilshire (the corner where the Flynt Publications building is located). 1210 sq.ft. 2 bdrm, 2 bath. Newly remodeled, all new appliances: washer-dryer, dishwasher, stove, built-in-microwave. Rooftop swimming pool, small exercise room.
If you’re interested, please write to me directly at volokh at post dot harvard dot edu.
I recently finished, and greatly enjoyed, Gal Beckerman’s When They Come for Us, We’ll Be Gone: The Epic Struggle to Save Soviet Jewry. (See the New Republic book review here.)
My family emigrated from the Soviet Union in 1975, and Beckerman’s book is a history of the movement (starting in about 1963) that led to tens of thousands of Jews emigrating from about 1972 to 1979. It should be especially interesting to Soviet Jewish emigrants like me, as well as to people who are interested in U.S.-Soviet relations and in Jewish history generally, but it’s actually well written and enjoyable in its own right, telling the story as it unfolded from the Soviet, American, and Israeli perspectives.
One thing I didn’t know is that 1975, the year we left, was actually a very low year for Jewish emigration. Another thing I wasn’t fully conscious of was how bad the early 1980s were for Jews who stayed behind. (Actually, the really bad times described in the book were for activists of all kinds, including general pro-democracy and pro-human rights activists, as well as for Jews who applied to emigrate. All this might not have applied to Soviet Jews who kept their heads low and didn’t try to leave.)
I was also pleasantly surprised to learn of the positive role played in the movement by my former colleague, the late Bob Drinan. I wish I could have discussed these issues with him when he was alive. Same goes for my current Congressman, civil rights figure John Lewis. Also, mainly because of my basic ignorance of the history of that period, I didn’t realize just how much Henry Kissinger opposed much of the anti-Soviet and pro-emigration activism of the time, including the Jackson-Vanik amendment (which I discuss below), though I now realize that this all fits in perfectly with his general outlook on foreign policy.
But the main surprise for me in the book related to the Jackson-Vanik amendment, the handiwork of Cold War Democrat Scoop Jackson. The idea of the Jackson-Vanik amendment (see a CRS report here) was to deny most-favored-nation trade status to communist countries, but to allow Congress to waive the amendment if the countries allowed emigration. I had always assumed that the Soviet Union had allowed emigration as part of this “bread for Jews” deal. But it turns out that the Jackson-Vanik amendment was never waived for the Soviet Union until 1990, when there was almost no Soviet Union anymore. At the times of high Jewish emigration — something like 1972-74, 1977-79, and after 1987, if I remember correctly — the Soviet Union was letting Jews out for other reasons. In the ’70s, it was mainly to soften up public opinion on other matters, and in the ’80s, it was for Gorbachevy reasons.
The Jackson-Vanik amendment may have been useful in a number of ways: (1) the Soviet Union may have made emigration concessions before 1974 (like repealing the emigration tax and letting some Jews out) to prevent its passage; (2) the amendment itself, without the waiver, prevented the Soviet Union from getting some trade benefits, which may have been good all by itself; (3) agitation in favor of the amendment was important in the organization of American Jews as a political force; and (4) the existence of the amendment may have played a useful role in shaming the Soviet Union internationally. But the effect of the amendment that I had always assumed was primary — getting the Soviet Union to let Jews (including my family) out by offering trade benefits — seems to have been essentially nonexistent.
In any event, I highly recommend Beckerman’s book.
P.S. A couple of Russian errors crept into the book, but that won’t be of interest to anyone but Russian nerds.
My maternal grandmother, Ida Glouberman, was born on January 1, 1911, so she would be 100 years old today if she were alive.
Note, though, that I’m not sure how well this statement stands up in light of Russian calendar reform (see here for general interesting issues about the Soviet calendar). To bring the Russian calendar in line with the calendar in the West, January 31, 1918 was immediately followed by February 14, 1918, so 13 days were dropped.
We celebrated my maternal grandfather’s birthday on September 12 (he was born in 1898 in modern-day Belarus), but apparently this was New Style; that is, when he was born a calendar in the West would have read “September 12″ but a calendar in Russia would have been something like August 31.
So if this is right — if contemporary Russians all “modernized” their birthdays — that means that when my grandmother was born, it would have been January 1, 1911 in the West, but December 19, 1910 on a Russian calendar, and she would have started calling her birthday January 1 after 1918. So we’d be correctly celebrating her 100th birthday today.
But would everyone have modernized their birthday in the same way? If your birthday was December 19 on a Russian calendar, you’d be happy to modernize it to get an awesome date like January 1. But if your birthday was already the awesome January 1 on a Russian calendar, mightn’t you be loath to change it to January 14? I don’t know how fluid birthday modernization customs were back then — maybe, with a Revolution and Civil War going on, they had more important things to do than police people’s self-reported birthdays? — and I don’t think we have any old documents to check.
About four and a half years ago, I wrote to the Oxford English Dictionary about the word “absent” in its prepositional sense (“absent X, we cannot do Y”). The word had been listed as “quasi-prepositional,” and the first recorded use was listed as 1944. I found a 1888 use, and questioned why “quasi.” I’m glad to report that now, if you look up “absent” in the OED, you see that it’s now a full-fledged preposition — no more quasi — and its first recorded use is:
1888 Southwestern Reporter 8 898 If the deed had been made by a stranger to the wife, then a separate estate in her would not have been created, absent the necessary words.
Similarly, I also wrote to the OED about the use of “Mirandize” as a verb. They listed it, but their first recorded use was 1984. I gave them a 1971 usage. Sure enough, now we see:
1971 California Reporter 96 128/1 The Court did not Mirandize the defendant.
Surely now I’ve hit the big time.
I just read this roughly two-week-old NPR story about private prison lobbying for the Arizona immigration law. The idea is this: “NPR spent the past several months analyzing hundreds of pages of campaign finance reports, lobbying documents and corporate records. What they show is a quiet, behind-the-scenes effort to help draft and pass Arizona Senate Bill 1070 by an industry that stands to benefit from it: the private prison industry.”
I take an interest in this, since my 2008 Stanford Law Review article, Privatization and the Law and Economics of Political Advocacy, took a look at the argument that private prison firms will lobby in favor of measures that increase incarceration. I argued there that there was no clear theoretical reason why private prison firms would do this (essentially, they would, under plausible assumptions, prefer to free-ride off of the advocacy expenditures of the larger public-sector actors interested in incarceration, for instance the prison guards’ unions), and very little empirical evidence that they’ve done it. So if this NPR article is right, then this is potentially an important piece of empirical evidence going the other way.
Trouble is, the NPR story is very short and low on details. So if anyone knows more, I’d be happy to know.
First, the story explains how the Arizona legislator who thought up the idea ran it through the American Legislative Exchange Council (ALEC), a conservative organization that writes model legislation. Various corporations, including private prison firms, are members of ALEC. Private prison firms are also members of ALEC’s Criminal Justice Task Force, which worked on this legislation. But this is ambiguous evidence of private prison involvement in pro-incarceration issues, since the Criminal Justice Task Force also deals with prison privatization, where we’d fully expect private prison companies to be involved. So I don’t take the reported ALEC activity to be any kind of smoking gun.
(By the way, for what it’s worth, CCA says it “doesn’t participate in or lobby for stricter sentencing”, though that’s vague enough to not rule out participating in a process that increases legal penalties for certain activities. Also, in 2006, a CCA executive told me that CCA hadn’t participated in, voted on, or endorsed any stand on model legislation for sentencing or crime policies within ALEC. Not that we should necessarily take the corporation’s statements at face value; just know that this is what they say.)
Later in the article, it says that some of Governor Brewer’s advisors are former private prison lobbyists. I don’t take this to be a smoking gun for private prison influence either: (1) it’s not surprising that private prison lobbyists would have common ideological ground with Republicans (note, though, that private prison companies give to both Republicans and Democrats), and (2) Republican support for privatization is sufficient to explain most contacts between Republican officials and the private prison industry.
But here’s an interesting set of claims:
As soon as Pearce’s bill hit the Arizona statehouse floor in January, there were signs of ALEC’s influence. Thirty-six co-sponsors jumped on, a number almost unheard of in the capitol. According to records obtained by NPR, two-thirds of them either went to that December meeting or are ALEC members.
That same week, the Corrections Corporation of America hired a powerful new lobbyist to work the capitol.
The prison company declined requests for an interview. In a statement, a spokesman said the Corrections Corporation of America, “unequivocally has not at any time lobbied — nor have we had any outside consultants lobby – on immigration law.”
At the state Capitol, campaign donations started to appear.
Thirty of the 36 co-sponsors received donations over the next six months, from prison lobbyists or prison companies — Corrections Corporation of America, Management and Training Corporation and The Geo Group.
If there really was a significant spike in lobbying activity, specifically by private prison companies, right at the time when the immigration bill was being considered, that would be interesting.
Does anyone know where I can find more details on this?
To summarize: Behind every non-tape-recorded contact between a politician and the private prison industry, there may be advocacy not only of privatization but also of greater incarceration. Who knows. I’m just saying is that there’s almost no hard evidence of it. I’d like to find evidence if there is some, but I’ve looked at most of the claimed instances and found them to be mostly innuendo. Put the lack of evidence together with the theoretical model of free-riding (which I discuss at the beginning of my Stanford Law Review article), and it looks likely that there’s no there there.
But, as I’ve said, I’m interested in getting to the bottom of this incident to see if this is really a good piece of evidence on the other side.
I imagine there must be a substantial literature on whether sometimes, you should boycott a process you feel is illegitimate rather than trying to ameliorate its effects by participating. For instance, should a democratic political party participate in substantially unfree elections, or should one collaborate with an illegitimate regime? I would appreciate pointers to relevant important literature on the subject.
I’m looking for critiques of regulatory cost-benefit analysis from a libertarian perspective. (Not just yours that you might think up, but articles or books.) Any suggestions?
What also might count: A critique of neoclassical economics from a libertarian perspective, for instance along the lines of “people think this perspective is all free-market but it’s not necessarily, and if you’re into natural rights you should think twice before going there.” Such critiques could continue “… and therefore you should go Austrian,” or “… and therefore you should use moral arguments exclusively,” or what have you.
Does anyone have any views on the following Administrative Law casebooks?
- Koch Jordan Murphy
- Rogers Healy Krotoszynski
Views on other books are fine too, but these are the main two I’m thinking of right now.
What are the earliest five constitutions of independent countries? [UPDATE: Why limit ourselves to five? Let's just go no further than 1799. Also, I forgot the most important part: they must be written. Every country has a constitution, but most old ones are unwritten!]
A bit of definitions and clarifications to start us off:
- The countries may or may not still exist.
- The constitutions may or may not still be in force.
- The constitution must self-consciously be a constitution; i.e., the Magna Carta doesn’t count. [UPDATE: Perhaps this point might be said to imply the "written" point that I've also clarified above. Note that most early codes are just law codes, not "constitutions" in the modern sense. To qualify here, a constitution should, at a minimum, purport to establish the state, define its officers, etc.]
- The country involved must consider itself independent; if there’s debate over whether the country really exists (like if many countries don’t recognize it), I resolve the doubt in favor of independence.
- There might be some debate over the status of the earliest U.S. state constitutions, e.g. the South Carolina constitution of early 1776. Therefore, exclude the original 13 states from the answers.
Cornell historian Paul Hyams and I are organizing a panel on medieval legal history at the International Congress on Medieval Studies at Kalamazoo, Michigan, May 12-15, 2011.
Here’s the call for papers:
In the high middle ages, land in medieval Europe was the most important source of political power, social status, and material wealth. Even in the earlier centuries. control over land was a [rime goal for the ambitious, and much conflict was fought out as disputes over its control and enjoyment. So land title and the vocabulary and discourse with which it was contested occupies a rather central position in medieval culture as a whole. It is, therefore, fitting that as medieval European legal systems matured, they put a great deal of effort into developing their land law and minutely elaborating concepts like “fief,” “seisin,” “tenure,” “dominium,” and “proprietas.” The result was a transformation of the relationship between people at all levels and the land on which all depended in the last resort for their sustenance. To understand medieval society, economy, and culture, we must understand the institutions relating to land and those who directly cultivated it with the strength of their bodies, or claimed it as theirs and sought to defend their right and enjoy its fruits — lordship, ownership, and the diverse rights and interests behind our modern Western concept of property.
The technical vocabulary of land law was derived from the everyday vernacular of speech, especially Old French. Latin “feodum” and its French equivalent “fief” were familiar terms to all who witnessed charter grants or were stirred by chansons de geste or romance. In return they re-entered secular culture as metaphor and image. Men whose ancestors had “sat” upon land were in time deemed to “hold” their fees or fiefs by this or that tenure. When Chaucer said of his Man of Law that “al was fee symple to hym in effect,” his lay readers and listeners took his point.
This panel, therefore, will explore the intersection among law, economics, and culture in the particular context of medieval European land law.
Please send abstracts (as instructed by the Kalamazoo authorities) in the first instance to me, Paul Hyams, History Dept., Cornell, Ithaca NY 14853-4601 or by e-mail to prh3 at cornell dot edu.
Sorry for the late notice, but I believe Paul and I need abstracts no later than September 15, ideally somewhat earlier.
I’m not sure I understand the bit in Jack Balkin’s post (see also Randy) where he says that “If the Court’s argument about Congress’s intent in McDonald is correct, [i.e., if §1981 already applies the whole Bill of Rights to the states,] it follows that the main holding in McDonald is completely superfluous and the Court reached out unnecessarily to decide a constitutional question.”
Suppose it’s true that §1981 really does apply the Bill of Rights to the states. We’d still need to know whether §1981 is within the powers of Congress (most plausibly under §5 of the Fourteenth Amendment). This would require a holding that the Fourteenth Amendment authorizes applying the Bill of Rights to the states — in other words, a holding about incorporation.
Jack seems to deal with this objection in the following paragraph. (More or less; the following paragraph actually appears before the part about the superfluousness of the constitutional holding, and is aimed more at objections to the argument that §1981 incorporates the entire Bill of Rights, an argument I’m assuming to be correct for now.)
Fourth, we can argue that although Congress reenacted this language under its powers to enforce the Fourteenth Amendment, section 1981 is not congruent and proportional to the rights guaranteed by the Fourteenth Amendment, citing the Court’s modern section 5 jurisprudence in cases like Boerne and Garrett. It is therefore unconstitutional to the extent that it attempts to enforce the Bill of Rights. The difficulty here is twofold. First, a law which the Reconstruction Congress believed enforced the same rights as the Fourteenth Amendment must be congruent and proportional to the Fourteenth Amendment if any law is. Second, the fact that the Reconstruction Congress — consisting of the same people who passed the Fourteenth Amendment — passed the 1866 and 1870 Acts strongly suggests that the law is constitutional, and that Courts’ modern section 5 jurisprudence is simply wrong if it suggests otherwise.
This is possibly a good argument that the Fourteenth Amendment (whether §1 alone or §1 with §5) should be read as totally incorporating the Bill of Rights, and that current incorporation doctrine (and/or congruence & proportionality doctrine) is invalid. That sort of argument is not a shocker! Note, though, that most of the Justices do believe in precedent to a certain extent; Scalia has written that incorporation is probably wrong as an original matter but settled enough that it’s worth following as a matter of stare decisis.
But this doesn’t mean the constitutional holding in McDonald is superfluous. Finding that §1981 applies the Bill of Rights to the states requires a constitutional analysis of whether §1981 is within Congress’s §5 powers, which may or may not involve an analysis of whether the Bill of Rights is contained within the guarantees of §1. Under modern doctrine, we do this using our modern incorporation analysis, which is exactly what the Court did. Even if the Court (inadvertently?) held that §1981 applied the whole Bill of Rights to the states, that would require a modern incorporation analysis as part of the §5 inquiry in every case, as long as the Court continues to hold to modern incorporation doctrine. But a constitutional holding of some sort would have been required even if the Court had followed the reasoning in Jack’s paragraph above, junked modern incorporation doctrine, and taken §1981 as inherently within the scope of the Fourteenth Amendment.
Elie Mystal, who graduated from law school at the same time as I did, has bad memories of Elena Kagan from when he had her for Civ Pro as a 1L. [UPDATE: Read The Whole Thing, the commenters remind me to say.] For what it’s worth, here are my own impressions of Elena Kagan:
- I had Kagan for Administrative Law in Spring 2002. She showed sound judgment early on by giving me a high grade in the class, and wrote me a very gracious letter afterwards (which no doubt will fetch a high price on eBay) in which she added, by hand: “I loved everything you said in class. Thanks for making things interesting. EK”.
Slightly more substantively:
- I enjoyed her class a lot, and she was very good at eliciting all the relevant points of view through questioning. I recall saying some fairly libertarian stuff in the class, which she welcomed.
- My scribbled Admin notes for Tuesday, February 12, 2002, say the following. (This was after a discussion of Myers, Humphrey’s Executor, and the “unitary executive theory.”) “Kagan thinks this is all total garbage — so manipulable. Pitch for honesty: everyone needs one area where policy views ≠ constitutional views. Kagan is a total unitarian for policy reasons. But doesn’t think this is a constitutional command. The constitution says so remarkably little that to take this issue away from political decisionmaking is a mistake — courts shouldn’t make these decisions.”
- As has been well documented elsewhere, as dean, Kagan was a good friend (though not a fellow traveler!) of the Federalist Society and of conservative/libertarian professors.
- In particular — and despite her presumably pro-gun-control views (see the David Kopel post below), she was a good friend of the HLS Target Shooting Club, which I founded in Fall 2001 and was the president of for two years. At this link to my old web site for the club, you can see a link (now defunct) to the video of an April 8, 2003 debate on gun control, co-sponsored by my club, and featuring Eugene, Alan Dershowitz, and Dennis Henigan of the Brady Center. Kagan was glad to agree to moderate — this was before she became dean — and her appearance at the debate was one of her first acts after becoming dean.
So there you have it. I know very little first-hand about her actual policy views, except for the snippet above about her views on the unitary executive theory; otherwise, she’s a great person, a great professor, (as far as I was in a position to experience) a great dean, and a friend of campus conservatives and libertarians at a time when, unfortunately, you can’t take that for granted.
I just got my ballots for Directors of the Harvard Alumni Association and Overseers of Harvard College. I know absolutely nothing about what issues are involved in these positions, nor do I want to spend much time finding out. The candidate statements provide no useful information on the subject. If I don’t get any information suggesting that certain people particularly deserve to be elected, or particular deserve to lose, I plan to abstain.
Does anyone have views on the subject? Extra useful if your reasons are relevant to my own views on the subject. Since I have no idea what issues are relevant to Harvard overseers or HAA directors, I don’t know what my views are. But as a rough approximation to what my views might be if I knew anything, you can guess based on the general tenor of this blog.
My law school friend David Markus wrote on Facebook that, as part of his Passover preparation, he had “charoset marinating.” A Facebook friend of his remarked: “Okay, so I haven’t been awake all that long, and I just spent a minute glancing dullishly at the screen wondering what a ‘marmoset charinating’ entailed.”
As a service to my Jewish friends, here’s what charination is and how it relates to the Passover holiday.
“Charinar” is a Ladino verb, a mixing of “chametz” (חָמֵץ) and “harina” (Sp. “flour”). It basically means “to make something into chametz by rolling it in flour.”
I know what you’re thinking, why would you want to charinate anything, let alone a marmoset? The roots of this are in the early 13th century, when the Judaeo-Catalan sage Nahmanides opined, in a widely circulated responsum, that just as it was mandatory to get rid of chametz in preparation for Passover, it was also forbidden to get rid of anything that was not chametz, as this would be improperly adding to the commandments (Deut. 12:32).
This view was ultimately rejected (of course today you can throw out doubtful items just in case), but for a brief time it put a premium on very precise categorization of what was and wasn’t chametz.
The trouble was that marmosets, which were a popular pet at the time, were definitely not chametz, and yet they had to be put outside because of the popular local superstition that marmosets were pleasing to Elijah (מרמוסט אליהו) and therefore had to be tied up outside to attract the prophet into the house.
So how do you get rid of a non-chametz marmoset? Make it chametz, of course, by charinating it. This led to the somewhat absurd spectacle of the small animals, all powdered in white, tied up outside houses in Jewish quarters. This provided fodder for numerous anti-Jewish polemics (of which Contra iudaeorum harinationem callithricum is the best known), until Nahmanides was forced to recant.
Nonetheless, some traditionalist families with Sephardic roots still engage in the practice, provided of course they have a marmoset.
I’m going to be presenting my paper “Why Do Judges Read Statutes?” at the American Law and Economics Association meeting at Princeton this May 7-8. A preliminary version is here.
Anyone have any information on cheap lodgings near campus?
The Emory Law Journal is having its 2010 Randolph W. Thrower Symposium on Thursday, February 11, from 8:30 a.m. to 4:30 p.m., in Tull Auditorium at Emory Law School in Atlanta.
The folks at the ELJ say:
The annual Randolph W. Thrower Symposium at Emory University School of Law gathers scholars from around the country to discuss pertinent legal topics. This year, the Symposium’s topic is The New New Deal: From De-Regulation to Re-Regulation. Speakers will be discussing the end of an era of de-regulation and the beginning of the first major period of government expansion and re-regulation in decades.
Participants include various Emory Law professors — Dean David Partlett, Victoria Nourse, Polly Price, Fred Tung, Robert Ahdieh, Martha Fineman, and Ani Satz — as well as other prominent legal scholars.
These others include my former colleagues Dan Ernst and Don Langevoort of Georgetown University Law Center, and (in no particular order) William Novak from Michigan, Barry Cushman from UVa, Jonathan Macey from Yale, Paul Verkuil from Cardozo, Samuel Estreicher from NYU, Michele Landis Dauber from Stanford, William Darity, Jr. from Duke, Frank Partnoy from University of San Diego, and William Forbath from Texas.
The topics are Re-Regulation and Government Expansion: A Historical Perspective, A More Visible Hand? The New Role of the State in the Financial Sector, and Building a More Responsive State.
You can register via the Emory site or at the door. The symposium is free. Georgia Bar members can get five hours of general CLE credit.
UPDATE: Corrected the name of the second panel.
I thought I’d share with you an op-ed I published on this occasion 13 years ago: History Shows Freedom Drives a Car. (The title was the newspaper editors’, not mine.)
I’m teaching a class on Legislation & Statutory Interpretation next semester. I’m looking for a 20-30 page reading that I could assign to give students a basic overview of theories of representation. Ideally, it should cover both sides of the debate over things like: whether a legislator should represent his constituents’ interests or the public interest, one person one vote and counterarguments, majority-minority districts, and the parliamentary model vs. the American system. This will necessarily have to be a very superficial overview. The idea is not to get into all the details or the merits of the debate, but just to alert the students to the fact that these debates exist and have a basic sense of why they are important.
In March 1994, I was in the Georgetown Gilbert & Sullivan Society‘s production of Gilbert & Sullivan‘s operetta Patience.
You can find a list of the Society’s past shows here; I was also in the same show the next time they produced it, in April 2007. Also, you can find the libretto of the show here.
In the March 1994 production, I played the character of the Major, which is perhaps the smallest part among the male principals. But hey, at least it was a principal.
Who was in the show with me? In the male chorus, playing one of the Heavy Dragoons, was Alan Gura, who represented Heller in D.C. v. Heller, and who’s counsel of record in McDonald v. Chicago, as you can see from the front page of the brief.
Who else was in the show with me? Why, playing the character of the Duke was none other than David Sigale, also McDonald’s lawyer listed on the front page of the brief.
Who else was in the show with me? This isn’t strictly speaking related to the McDonald case, but the character I married in the show, one “Angela,” was played by Alan Gura’s law partner, Laura Possessky.
Have Gilbert & Sullivan otherwise influenced the McDonald case? Well, p. 7 of the brief (p. 25 of the PDF) says that “The Privileges or Immunities Clause was all but erased from the Constitution in The SlaughterHouse Cases.” And, on the next page, it says that “SlaughterHouse‘s illegitimacy has long been all-but-universally understood.”
All but!
Surely, this is an echo of the sextet in Patience (see p. 19 of the libretto, i.e. p. 22 of the PDF, here), which I sang together with one of McDonald’s lawyers and the other lawyer’s law partner: “The pain that is all but a pleasure will change / For the pleasure that’s all but pain, / And never, oh never, this heart will range / From that old, old love again!” And MAIDENS embrace OFFICERS. Awww!
Or (see p. 28 of the libretto / p. 31 of the PDF), says Angela, commenting on the Major and the Duke: “Not supremely, perhaps, but oh, so all-but! (To SAPHIR.) Oh, Saphir, are they not quite too all-but?”
Perhaps Gilbert and Sullivan’s influence on the law now extends further than Iolanthe and Trial by Jury!
Tags: Georgetown, Gilbert & Sullivan, McDonald, Second Amendment
Cornell medieval historian Paul Hyams and I are organizing a panel called Law as Culture: Lordship, Profit, and Rationality at the 45th International Congress on Medieval Studies at Western Michigan University in Kalamazoo, which will take place May 13-16, 2010. The deadline for submissions is September 15, 2009. Instructions for submission are here. Here’s the call for papers:
Both economic and legal argument draws deeply on notions of reason and logic. These are found among ordinary men and women far from the schools. As economic historians document, medieval people (prudent peasants, as McCloskey puts it) were perfectly capable of responding to economic incentives. Moreover, law played a crucial role in shaping those incentives. We welcome proposals for papers that explicitly link legal history with economic history in explaining the dynamics of medieval life and culture.
Here are some examples of possible topics:
- The canon law generated regulations concerning Usury, the Just price etc. during the “long” Twelfth Century. Meanwhile, secular laws sought to regulate markets (through laws on forestalling, regrating, engrossing, Assize of Bread and Ale etc.) and boosted those on coining offenses. This sustained attempt to restrain economic activity through law must be largely explicable from the context of economic change against which it was made. How might the Legal Revolution (the whole or any part) and the rising “Profit Economy” (Lester Little) be causally linked?
- Why did England
I haven’t had time to post lately, but now let me return to my series of posts discussing the background of the Supreme Court’s “fleeting expletives” case from last month, FCC v. Fox Television Stations. Click here to see the whole string of posts, including this one, on a single page, in chronological order. (As usual, click here to watch George Carlin’s monologue if you haven’t done so already!)
In past posts, we’ve seen the evolution of the FCC’s policy on regulating expletives. Recall that the FCC’s statute, the Communications Act of 1934, has two sections that are somewhat in tension. First, we have the no-censorship provision, now codified at 47 U.S.C.
This is part of a series of posts discussing the background of the Supreme Court’s “fleeting expletives” case from last week, FCC v. Fox Television Stations. Click here to see the whole string of posts, including this one, on a single page, in chronological order. (As usual, click here to watch George Carlin’s monologue if you haven’t done so already!)
In the last post, I discussed the FCC’s 2004 rule on indecency, which altered its previous policy, mainly on the word “fuck.” For something to be indecent, it has to, first, refer to sexual or excretory activities. And, second, it has to be patently offensive, in context, according to contemporary community standards. This second prong (heh-heh) involves analyzing (1) the explicitness or graphic nature of the description of sexual or excretory activities, (2) whether the material dwells on or repeats the description of these activities at length, and (3) whether it appears to pander or titillate or was presented for its shock value.
On the first prong, the FCC found that “fuck,” in any form, always referred to sexual activities. And on the second prong, the FCC applied its three criteria and determined that its use on a nationally televised awards show was indeed patently offensive. (As an alternative ground, the FCC held that “fuck” was profane, another prohibited category.) Therefore, the material was “indecent,” and thus banned by the statute, even if it was only mentioned once and accidentally. (The previous policy had announced that isolated occurrences were of no regulatory concern.) Nonetheless, the FCC declined to assess a fine, because it was announcing a change of policy and thought the regulated community ought to have more notice before being fined — among other reasons, lest there be a chilling effect on speech.
That was the 2004 policy. About two years later, in March 2006, to give greater guidance to the regulated community, the FCC released a lengthy document analyzing dozens of particular cases, representing thousands of complaints. The document was divided into three parts: (1) cases where it found indecency or profanity and proposed monetary fines against the licensees, (2) cases where it found indecency or profanity but didn’t propose fines, and (3) cases where it didn’t find indecency or profanity. Here are some examples — I’ll focus on the ones involving speech rather than visual depictions of sex.
Since the Supreme Court has granted cert in Free Enterprise Fund v. PCAOB (see here), I thought I would share a summary of the facts of the case, which I prepared as a study guide for my Administrative Law class at University of Houston:
In 2002, following a series of accounting scandals that exposed weaknesses in the reporting requirements for publicly held companies, Congress passed the Sarbanes-Oxley Act of 2002 (“the Act” or “SOX”). Title I of the Act established the Public Company Accounting Oversight Board (“the Board” or “PCAOB”) as a new entity to oversee the audits of public companies. The Board’s purpose is “to protect the interests of investors and further the public interest in the preparation of informative, accurate, and independent audit reports for companies the securities of which are sold to, and held by and for, public investors.” In particular, the Act provides that:
The Board shall, by rule, establish, including, to the extent it determines appropriate, through adoption of standards proposed by 1 or more professional groups of accountants [which it shall designate] or advisory groups [which it shall convene], and amend or otherwise modify or alter, such auditing and related attestation standards, such quality control standards, and such ethics standards to be used by registered public accounting firms in the preparation and issuance of audit reports, as required by this Act or the rules of the Commission, or as may be necessary or appropriate in the public interest or for the protection of investors.
The five members of the PCAOB are appointed by the Securities and Exchange Commission (“the Commission” or “SEC”) after consultation with the Chairman of the Board of Governors of the Federal Reserve and the Secretary of the Treasury. Appointment is by majority vote of the five SEC Commissioners. Two PCAOB members must be or have been certified public accountants. After its members are appointed by the SEC, the Board assumes its responsibilities only upon the Commission’s determination that the Board has the capacity to carry out the Act’s requirements (i.e., that it is properly organized and has appropriate rules and procedures in place). The Commission alone determines whether the Board may “sue and be sued” in any court.
(As for the Commissioners themselves, all five Commissioners are appointed by the President with Senate confirmation. SEC Commissioners can be removed by the President for cause (i.e., for inefficiency, neglect of duty, or malfeasance). The SEC Chairman is selected from among the Commissioners by the President, and serves as Chairman at the President’s pleasure. The Chairman often dominates commission policymaking, controls the administrative side of commission business, selects most staff, and sets budgetary policy.)
A member of the Board may be censured or removed from office “for good cause shown” upon a finding by the Commission, after notice and opportunity for a hearing, that the member willfully violated the Act or abused authority, or failed to enforce compliance with a rule or standard without reasonable justification. The Commission is further empowered, by rule, to relieve the Board, consistent with the public interest, of any enforcement authority whatsoever, as well as, by order, to censure the Board and, after notice and opportunity for a hearing, to “impose limitations upon the activities, functions, and operations of the Board” upon finding that the Board has failed to abide by its statutory duties.
“No rule of the Board shall become effective without prior approval of the Commission.” To approve a rule, the Commission generally must conduct its own notice-and-comment proceedings. The Commission “shall approve a proposed rule, if it finds that the rule is consistent with the requirements of [the] Act and the securities laws, or is necessary or appropriate in the public interest or for the protection of investors.” The Commission is empowered to “abrogate, add to, and delete from” the Board’s rules “to assure the fair administration of the [Board], conform the rules promulgated by that Board to the requirements of [the Act], or otherwise further purposes of [the] Act, the securities laws, and the rules and regulations thereunder applicable to [the] Board.” The Commission itself is also empowered to promulgate rules in furtherance of the Act.
The Act requires auditors of public companies to register with the PCAOB by submitting applications to the PCAOB, filing periodic reports with the PCAOB, and paying fees to the PCAOB. The SEC may review the PCAOB’s accounting support fee rules and denials of regulation applications. The PCAOB may inspect accounting firms and release interim reports detailing any deficiencies in advance of its final conclusions.
When the PCAOB investigates a potential securities law violation, the Board must both inform the Commission and coordinate its activities with the Commission. If a company violates PCAOB rules governing the auditing of public companies, it will be subject to disciplinary actions and sanctions by the PCAOB. Any violation of PCAOB rules “shall be treated . . . as a violation of the Securities Exchange Act of 1934.” If the PCAOB determines, after investigation, that an accounting firm has committed a violation, it has the power to impose an appropriate sanction.
All Board adjudications are subject to the Commission’s de novo review, upon an immediate stay when an application for review is filed or sua sponte by the Commission. Sanctions imposed by the PCAOB are generally stayed pending Commission review of the inspection report. The Commission is empowered to “enhance, modify, cancel, reduce, or require the remission of a sanction imposed by the Board.” The Commission may alter or cancel a sanction imposed by the PCAOB if, “having due regard for the public interest and the protection of investors,” the SEC finds that the sanction is “not necessary or appropriate in furtherance of this Act or the securities laws” or is “excessive, oppressive, inadequate, or otherwise not appropriate.” Final Commission decisions are reviewable by the Court of Appeals.
Acme Accountants, an accounting firm registered with the Board and subject to an ongoing formal investigation, seeks declaratory and injunctive relief prohibiting the Board from proceeding, arguing that the structure of the Board violates various separation of powers doctrines. What arguments could Acme make, and how would those issues be resolved?
For two possible answers, read the case.
UPDATE: See Michael Greve’s article here.
