The Volokh Conspiracy

An online debate at the Federalist Society site — a fascinating subject, and two first-rate debaters. Check it out; here’s the summary (paragraph breaks added):

Under the statute authorizing the Troubled Assets Relief Program, Congress authorized the Secretary of the Treasury to “require each TARP recipient to meet appropriate standards for executive compensation.” By emergency rule promulgated without notice and comment, Secretary Geithner created the position of “Special Master for Compensation” or Pay Czar, and named Kenneth Feinberg to this position. In late October, Mr. Feinberg cut compensation for executives at seven large financial firms. 

In an op-ed in the Wall Street Journal, Michael McConnell, the Richard and Frances Mallery Professor of Law and Director of the Stanford Constitutional Law Center, argues that Mr. Feinberg’s actions are unconstitutional because powers of the type entrusted to Mr. Feinberg may only be exercised by an officer of the United States, appointed in a manner consistent with the requirements of Article II, section 2, clause 2 of the Constitution. This provision stipulates that all “Officers of the United States” shall be appointed by the President “by and with the Advice and Consent of the Senate,” with the exception that “the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” 

This forum will discuss the arguments put forth in Professor McConnell’s op-ed regarding the Pay Czar and the Appointments Clause. We have excerpted the key paragraphs of the ep-ed in the first post below.

According to the New York Daily News and other news sources, the National D-Day Memorial has added a bust of Stalin to its line-up of allied leaders. This has understandably caused a great deal of controversy. The defense is most elaborately discussed here.

Here’s my thinking on the matter: Sculptures at memorials have two different functions — one is to illustrate history, and the other is to honor the subject. In the absence of any specific indication to the contrary, I suspect that people understand a bust at a memorial, especially one placed alongside that of honored leaders (Roosevelt and Churchill), as fulfilling both functions. And this is true even if the sculpture tries to “embody the terror he instilled”; it’s always hard to convey condemnation of the subject in the sculpture itself, especially given the backdrop assumption of honor that I mentioned. And if the photo in the Daily News article represents the bust (I’m not sure whether it does), I don’t see much embodiment of terror there.

If that’s just how it’s displayed, that strikes me as very bad, because for obvious reasons Stalin does not deserve honor. He was a monster, not just by the standards of our time, but by the standards of his. The Soviet Union’s tenacity in fighting the Nazis — after Stalin had earlier helped the Nazis, both by allying himself with them and by earlier weakening the Soviet military with the purges — was indubitably critical in winning the war. Stalin might well have been important in ultimately contributing to that tenacity. But that important success doesn’t undo his horrific atrocities.

At the same time, nothing says that the bust inevitably honors the subject. There are such things as captions, which could be placed prominently on the sculpture, and the captions can easily put things in proper perspective. An explanation of Stalin’s crimes, and the aid that Stalin either deliberately or inadvertently gave Hitler, coupled with an explanation of the immense significance of the Soviet Union’s contribution to winning the War, and whatever credit historians say Stalin deserves for that, would sufficiently make clear that Stalin is not the moral peer of his neighbors Roosevelt and Churchill. (Of course, Soviet troops weren’t present at D-Day, but D-Day would have been at least very different, and likely impossible, if the Soviets hadn’t successfully engaged much of the Nazi army on the Eastern Front.)

It’s not clear to me whether such a caption is present. If it is not, then the memorial organizers should be severely faulted, for placing in a position of conventional honor someone who deserves hatred and contempt. But the solution would be to simply add the caption, I think, and not to remove the bust.

From a Magistrate Judge’s Report and Recommendation in Griffin v. N.H. Dep’t of Employment Security (handed down Nov. 16):

For six years prior to May 19, 2009, Griffin worked for the Hospital as a radiology technician. Prior to May 19, Griffin had a conversation with a patient in which he recounted a news story regarding the number of firearms purchases that had occurred in the first quarter of 2009. The patient complained about the conversation, and Linda Nestor, Director of the Radiology Department, contacted the patient on May 19 to investigate. The patient said that Griffin had made remarks about President Obama and had reported that he was stocking up on food and weapons. Nestor did not ask Griffin to provide his side of the story, concluding that she did not need to investigate further because Griffin had made inappropriate comments in the past.

Griffin was fired by the (private) hospital “for making inappropriate remarks to a patient about guns and politics,” and was then denied unemployment compensation by the government agency in charge of unemployment claims because he “was terminated for misconduct.”

Now it’s clear that Griffin’s firing doesn’t violate the First Amendment, because the hospital is a private entity, and thus not bound by the First (or Fourteenth) Amendment. But in a long and well-known line of cases, the Supreme Court held that when an employee is fired because he refuses to do something (e.g., work Saturdays) because of his religious beliefs, a denial of unemployment compensation on the grounds that the firing was “for misconduct” (there, insubordination) presumptively violates the Free Exercise Clause. I think this logic is dicey, but the Court has accepted.

I’ve often wondered whether the same logic would also apply to firings for speech, the subject of a parallel clause of the First Amendment. And in Griffin, the magistrate’s report says “yes”:

Griffin’s claim resembles those arising under the Free Exercise Clause of the First Amendment, involving employees terminated for religious practices conflicting with a private employer’s policy but not otherwise barred by law, who have successfully challenged administrative rulings or state laws denying them unemployment benefits. See, e.g., Hobbie v. Unemp. App. Com’n, 480 U.S. 136, 140–41 (1987) (denying unemployment benefits to Seventh-Day Adventist who was fired because she was unwilling to work on Saturdays impermissibly burdens free exercise of religion); cf. Employment Div. v. Smith, 494 U.S. 872, 890 (1990) (denying unemployment benefits to employees fired for their criminal misconduct in using peyote did not violate Free Exercise clause because state law criminalizing use of peyote passed constitutional muster). The Court has characterized these cases as standing for the proposition that “where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.” Employment Div., 494 U.S. at 884 (citation omitted). Lower courts have extended this line of authority to cover claims like Griffin’s asserting that the state violated the First Amendment when it determined that an employee fired for engaging in political speech at work was ineligible for unemployment benefits. See, e.g., De Grego v. Levine, 362 N.Y.S.2d 207, 208–09 (N.Y. App. Div. 1974) (First Amendment barred State from denying unemployment benefits to employee fired for wearing “Impeachment with Honor” button), aff’d on other grounds, 347 N.E.2d 611 (N.Y. 1976).

An interesting case. Note: If you want to offer legal analysis about the case, you should probably make sure you have read Sherbert v. Verner, the source of the Free Exercise Clause doctrine on which the Court relies; as applied to unemployment compensation, Sherbert survives Employment Division v. Smith’s general holding that the Free Exercise Clause isn’t violated by religion-neutral laws of general applicability.

The recent “everybody” threads reminded me of one of my favorite songs:

Everybody knows that the dice are loaded
Everybody rolls with their fingers crossed

Note that I quote it just because I like it, not because I think that it by itself is evidence that’s as strong as what I’ve pointed to earlier.

Earlier today, I posted quotes from prominent authors who use “them” with formally singular terms such as “everyone.” A commenter had earlier complained that “Already constructions like these are ubiquitous among high-school age writers, and sanctioned by their teachers.” I pointed out that they were apparently sanctioned by leading writers as well.

A commenter suggested that perhaps the quotes given above were just isolated errors on the authors’ part: “Even great writers commit infelicities on occasion. If you are telling me that Jane [A.] did this all the time, that would be meaningful.” Feeling the desperate need to procrastinate this morning, I decided to put that theory to the test, by doing some Google Books searches through the works of the notorious language-mangler Jane A., whom I mentioned above.

I won’t bore you with all the details and citations, which you yourself can uncover by searching for “everybody” with author Jane A. (despite her obvious inability to grasp the inexorable logic of the English tongue, she’s pretty famous, so you can probably deduce her last name). But suffice it to say that I found not one “everybody” matched with a singular pronoun — maybe there were some, but in that case I missed them — and several matched with “them.” “Everybody had a right to be equally positive in their opinion.” “Everybody had their due importance.” “If everybody was to drink their bottle a day.” “Their new dining-room prepared everybody for their keeping dinner-company.” “Everybody said, they never saw so fat a haunch.” “Everybody has their taste in noises as well as in other matters.” And there are more.

Incidentally, Jane A. consistently uses everybody with the singular forms of verbs, e.g., “everybody is.” Yet she apparently sees nothing wrong with at the same time using the pronoun “they,” including in the line, “But everybody is to judge for themselves.” That’s precisely the sort of “jarring (I hope!) juxtaposition of the singular verb with the plural pronoun” that my original correspondent complained about. Maybe it’s jarring to that commenter, but many readers of P. and P. seem to have enjoyed the novel quite well despite it.

If you think that Jane A. was an outlier in consistently using “them” with “everybody,” and the other examples I gave were (unlike with Jane A.) themselves outliers in those authors’ bodies of work, then by all means provide some evidence of it. But I like to think that what I’ve posted so far at least shifts the burden of proof to those who want to argue that this phenomenon is somehow the special province of modern high-school age writers and their decadent loosey-goosey modern teachers.

UPDATE: Someone — whose need to procrastinate was apparently even greater than mine — actually has a much longer list of examples, all from Jane A.‘s work. The page also discusses the quotations vs. narration question, and more broadly goes into this in a great deal of detail; the detail, I think, amply supports the assertions I make above.

A commenter writes:

The word “disrespected”, when used as, “the ho [disrespected] me”, shows [a] new use of a word, now fairly accepted, regardless of how clumsy.

I often see people talk about something being a new use of the word — whether they’re condemning the supposed new use or accepting it — but much of the time that just turns out not to be so. I realize that most people don’t have the luxury of free access to the Oxford English Dictionary, but Google Books is often a good second best. Here’s a sample of what the OED reports:

trans. The reverse of to respect; to have or show no respect, regard, or reverence for; to treat with irreverence. 

1614 WITHER Sat. to King, Juvenilia (1633) 346 Here can I smile to see..how the mean mans suit is dis-respected... 1706 HEARNE Collect. 26 Apr., He was disrespected in Oxford by several men who now speak well of him.... 1885 G. MEREDITH Diana I. 257 You will judge whether he disrespects me....

1791 PAINE Rights of Man (ed. 2) I. 101 Reflecting how wretched was the condition of a disrespected man....

Now it might well be that “disrespected,” whether as the past tense of a verb “disrespect,” or as the closely related adjective referring to someone who is disrespected, is more commonly used than before. But it’s certainly not new. And, more broadly, lots of assertions that some usage is new prove, on closer examination, to be unsound.

The Wall Street Journal reports:

Justice Anthony Kennedy got into a messy situation this month after a widely circulated report that his office made a school newspaper get permission before running an article about the justice.

It turns out the incident at New York’s Dalton School wasn’t the only such case....

In an interview with The Wall Street Journal this week, Justice Kennedy said he generally bars outside news media from covering his classroom lectures, but permits student journalists to file reports. He said he has never sought to review any report before publication, and attributed the requests to a new secretary who misunderstood his policy.

A New York Times article about the Dalton case sparked a host of critical editorials and blog posts accusing Justice Kennedy, who generally has voted against curbs on free speech, of hypocrisy....

Mr. Regis[, news director at the student radio station WRGW, involved in an earlier incident,] said he found the request ironic, because Justice Kennedy had written a 1991 Supreme Court opinion rejecting a libel claim against the New Yorker based partly on the magazine’s failure to publish verbatim quotations.

“Writers and reporters by necessity alter what people say, at the very least to eliminate grammatical and syntactical infelicities,” Justice Kennedy wrote in Masson v. New Yorker Magazine. He wrote that practical necessities such as the need “to make intelligible a speaker’s perhaps rambling comments” make it “misleading to suggest that a quotation will be reconstructed with complete accuracy.”

I don’t see why this should be messy (except if “messy” simply means “drawing some criticism, whether or not justified”), or why Justice Kennedy’s view should be seen as hypocritical, ironic, or inconsistent. Justice Kennedy has generally voted against government curbs on free speech; but it seems to me that a speaker acting as a private individual — which Justices do when they give speeches, as opposed to rendering opinions — is entitled to condition his speaking on checking the quotations to make sure they are accurate. Misquotations by reporters are commonplace, and it seems quite reasonable for a speaker to try to prevent such misquotations.

Now I have heard it said that many news organizations have policies, based on what they see as “journalistic ethics,” against agreeing to such requests. But I don’t see why Justice Kennedy should feel some obligation to further such policies.

I should note that I have the same policy for interviews I do with a particular university student newspaper that calls me on occasion. I’ve had so many bad experiences with their quotes from me being rendered in an incoherent or out-of-context way that I say that I’ll be happy to talk to them, but only if they clear with me before publication all quotes and paraphrases of me. At times they’ve said that this is against their policy, and in those cases I’ve declined to talk to them. Obviously my bargaining position is weaker with other newspapers, and I’m often more interested in talking to those other newspapers, so I can’t impose such a rule across the board (especially since there is often deadline pressure that makes such checking very difficult). But I would if I could, and I don’t see what would be “messy” about it. Am I missing some important ethical constraint here that is properly seen as binding on speakers or interviewees?

A commenter writes:

Well it could be worse. I hazard that in 50 years the sex sensitivities of the colloquial speaker will have caused the formal replacement of the generic singular pronoun (he) with the plural pronoun (they), which is safely without gender. Already constructions like these are ubiquitous among high-school age writers, and sanctioned by their teachers:

Everyone must choose their own path.

Each student selects their thesis topic.

Note in the second example the jarring (I hope!) juxtaposition of the singular verb with the plural pronoun. This is the future.

Buddy, you don’t know the half of it! Not only are high-school age writers being taught this by teachers, they are even taught this by some other writers (who must obviously be misguided hacks, given how badly they’re abusing the English language). Some examples from some of these awful people — to avoid unduly embarrassing them, we’ll call them William S., Jane A., W.H. A., Jonathan S., William Makepeace T.,

And every one to rest themselves betake

I would have everybody marry if they can do it properly

... it is too hideous for anyone in their senses to buy

Who makes you their confidant?

... every fool can do as they’re bid

A person can’t help their birth

There’s not a man I meet but doth salute me
As if I were their well-acquainted friend

(All sources are from the Merriam-Webster’s Dictionary of English Usage, where the full names of these miscreants are revealed.) [UPDATE: A more comprehensive survey of Jane A.‘s works is in the Spurious Grammatic “Rules” of Every Sort Are My Abhorrence post.]

So, commenters, is it that all these writers (whose work ranges from the late 1500s to the 1900s) and many more were wrong, and you’re right, when you say that “their” can’t be used in these contexts? Is it that you have the Logic of the Language on your side — the same logic that tolerates the singular “you are,” “aren’t I?,” “ice cream,” and much more, but that as a matter of the laws of logic balks at a singular “they”? Or is it just that you’re discussing what you find aesthetically pleasing (or even pedagogically optimal, for instance with an eye towards teaching students usage that will satisfy self-described “purists” and will thus serve them well socially)? If it’s the latter, I’ll happily end the debate. But my sense is that many people who denounce the singular “they” (including where the singular relates to nouns with a collective meaning, such as “everyone”) and similar matters are making an assertion about correctness, and not just about their own tastes or about the most useful teaching approaches.

A commenter writes:

I’ve never liked the cyclic reasoning of the paradigm that if an otherwise incorrect use of grammar or spelling becomes widespread, it is declared to be henceforth correct.

If you want to use “they” in this context, then rephrase it as “I would like to thank the editors at Attorney.org for their kind words...” or “to thank the members of Attorney.org...” Otherwise Attorney.org is a singular noun.

The key to this argument, I think, is the notion that we can identify certain usages as “otherwise incorrect,” independently of actual usage.

This can mean one of two things, I think: First, a usage might be “otherwise incorrect” because it was until recently nonstandard, and (the argument would go) changing practice shouldn’t make “henceforth correct” something that was nonstandard until now. I find it hard to see why this makes sense. Among other things, the usage that was standard until recently might itself have departed from past usage, and become correct simply because of changing practice. So either one insists that all changes since, say, 1600 (but why 1600? Why not 1200?) are wrong, or one has to explain why we today should be stuck with the 1900 usage and not accept the 2009 usage.

Second, and I think more likely, is the premise that a usage might be otherwise incorrect because it violates certain logical rules of English grammar. Yet the trouble is that the actual rules of English grammar including many subrules that depart from the apparent “logic” of the broader rules.

Thus, for instance, “are” is generally plural — yet we say “you are” even when the “you” clearly refers to a single person. The story behind this is doubtless complex, and of course has to do with the fact that “you” is both a second-person plural and the second-person singular, and that the informal second-person singular “thou” has become nonstandard in all but a few highly specialized contexts. 

And yet whatever the story, the fact remains that the “otherwise incorrect” usage of “are” to refer to a single person — incorrect, that is, if we appeal to the simplest statement of the rule governing “are” (“are” is for plurals) — becomes correct when it is used with “you.” Or, more precisely, there is a descriptively correct general rule (“are” is used with plural nouns and not with singular nouns) that has a descriptively correct exception (“are” is also used with the second-person singular “you”). How do we know that these rules are correct? Not by appeals to logic, but precisely by reference to widespread (here, nearly universal) usage.

But, wait, there’s more: “I are” is nonstandard and therefore descriptively incorrect. “I aren’t” is, too, as are “I aren’t” and even “Are I not ...?” But “Aren’t I ...?” is indubitably fully standard, and I haven’t seen any credible usage source even claim that it is somehow incorrect. Why is it correct, even though it would be “otherwise incorrect” if we appeal to the broad logic of pronoun rules? Because it is “the will of custom, in whose power is the decision and right and standard of language.”

I could give more examples (such as this one), but I take it my point is clear without them: Lots of perfectly correct English terms and phrases are “otherwise incorrect” if one looks at some broader rules of language — but they are correct because they form exceptions from these rules (rules in the sense of regularities, not in the sense of somehow logically, legally, or morally binding laws). My tentative claim (tentative because it was based on just some casual searching) is that the “Thanks to [group] for their ...” usage is likewise an exception from the norm that a group is an “it” and not a “they.” Maybe I’m descriptively wrong on this. But if I am wrong, it’s not because the usage, even if common, is “otherwise incorrect”; that would just show it to be one of the many exceptions present in English grammar and usage.

The case is Roxbury Entertainment v. Penthouse Media Group, Inc. (C.D. Cal. Nov. 9):

It is well established that films are entitled to First Amendment protections. ... [A] Lanham Act [false or misleading designation of origin] claim asserted against the creator of an expressive work can succeed only if the “public interest in avoiding consumer confusion outweighs the public interest in free expression.” 

The [applicable Rogers v. Grimaldi] test has two prongs. The first prong requires that the defendant’s use of plaintiff’s trademark be relevant to the underlying work: “the level of relevance must merely be above zero.” If the first prong is satisfied, the Lanham Act claim is still precluded unless the use explicitly misleads consumers about the source or content of the work. 

Because Defendants’ movie is an expressive work, the Rogers test provides a complete defense to all of Plaintiff’s claims. With respect to the first prong, Defendants’ use of “Route 66″ is relevant to the underlying work. See Rock Star, 547 F.3d at 1100 (“[T]he level of relevance must merely be above zero.”). Defendants have introduced evidence demonstrating at least some relationship between the mental imagery associated with the term “Route 66,” e.g., road trips, cross-country travel, and the content of Defendants’ movie. Plaintiff’s argument that the association is tenuous does not controvert Defendants’ showing.

The second prong of Rogers requires the Court to evaluate whether Defendants’ use of “Route 66″ explicitly misleads consumers as to the source or content of the work. Mere use, without more, is insufficient to make the use explicitly misleading. As the Ninth Circuit has explained, the relevant inquiry is whether consumers would be misled about the source or sponsorship of Defendants’ movie.

This prong of the test points directly at the purpose of trademark law, namely to “avoid confusion in the marketplace by allowing a trademark owner to prevent others from duping consumers into buying a product they mistakenly believe is sponsored by the trademark owner.” The relevant question, therefore, is [“]whether the [product] would confuse [consumers].... In answering that question, we keep in mind ... that the mere use of trademark alone cannot suffice to make such use explicitly misleading.[“] Here, there is nothing to indicate that there is any risk of Defendants’ use of the mark “duping” consumers into thinking they are buying a product sponsored by, or in any way affiliated with, Plaintiff or the 1960s television series in which it owns rights.

Accordingly, summary judgment is GRANTED in favor of Defendants on all of Plaintiff’s claims because Defendants’ use of “Route 66″ in or as the title of their adult film is protected by the First Amendment.

alleged here seems to us to move [plaintiff’s] allegations into the realm of claims ‘flimsier than ‘doubtful or questionable ’ — ... ‘essentially fictitious,” not realistically distinguishable from allegations of ‘little green men’ of the sort that Justice Souter recognized in Iqbal as properly dismissed on the pleadings.” From Tooley v. Napolitano, decided yesterday by the D.C. Circuit.

From U.S. v. Skoien, decided today:

A grand jury indicted Steven Skoien for possessing a firearm after having been convicted of a misdemeanor crime of domestic violence in violation of 18 U.S.C. § 922(g)(9).... Skoien pleaded guilty but reserved his right to appeal [on Second Amendment grounds] the district court’s denial of his motion to dismiss the indictment....

The government has approached this case as though all it had to do to defend the constitutionality of § 922(g)(9) is invoke D.C. v. Heller’s language about certain “presumptively lawful” gun regulations — notably, felon-dispossession laws. Not so. Heller held that the Second Amendment secures an individual natural right to possess firearms for self-defense; the opinion’s reference to exceptions cannot be read to relieve the government of its burden of justifying laws that restrict Second Amendment rights. Although Heller did not settle on a standard of review, it plainly ruled out the deferential rationalbasis test; this leaves either strict scrutiny or some form of “intermediate” review. On the facts of this case, we hold that intermediate scrutiny applies. In its usual formulation, this standard of review requires the government to establish that the challenged statute serves an important governmental interest and the means it employs are substantially related to the achievement of that interest.

Skoien was convicted in state court of misdemeanor domestic battery and was placed on probation. About a year later his probation agent found a hunting shotgun in a truck parked outside his home. Skoien admitted he had gone deer hunting that morning and used the shotgun to kill a deer. He argued below and maintains here that prosecuting him under § 922(g)(9) for possessing the shotgun violates his Second Amendment right to bear arms for hunting. He has not, however, asserted a right to possess the gun for self-defense.

As such, the government’s application of § 922(g)(9) in this case requires less rigorous justification than strict scrutiny because the core right of self-defense identified in Heller is not implicated. Applying intermediate scrutiny, we ask whether the government has established that the statute is substantially related to an important governmental interest. No one questions the importance of the government’s interest in protecting against domestic-violence gun injury and death. The dispute here is about the fit between this important objective and § 922(g)(9)’s blanket ban on firearms possession by persons who have been convicted of a domestic-violence misdemeanor. Under intermediate scrutiny, the government need not establish a close fit between the statute’s means and its end, but it must at least establish a reasonable fit. The government has done almost nothing to discharge this burden. Instead, it has premised its argument almost entirely on Heller’s reference to the presumptive validity of felon-dispossession laws and reasoned by analogy that § 922(g)(9) therefore passes constitutional muster. That’s not enough. Accordingly, we vacate Skoien’s conviction and remand to the district court for further proceedings consistent with this opinion.

More thoughts on this, I hope, later today. Thanks to Miguel Larios for the pointer.

The decision is Ankeny v. Governor, handed down last Thursday. The opinion is pretty detailed, and is the only substantive opinion I know of in a case challenging President Obama’s eligibility (since the other cases, including the ones that assert that he wasn’t born within the U.S., have been rejected on procedural grounds, such as ones related to standing). The court’s reasoning strikes me as quite persuasive.

A commenter, commenting on my “Thanks to Attorney.org for its kind words about our blog,” asks:

Unless one is British, would not the proper response be “Thanks to Attorney.org for its kind words about our blog, which it labeled its Blog of the Year”?

Or did I miss a revolution with respect to it (its) and they (their)?

I’m not sure there was a revolution, in the sense of a change in practice. But my sense is that current practice (whether or not it departs from past practice) is generally to treat organizations as a “they” rather than an “it” in thanks, perhaps because thanks naturally flow to humans rather than to entities. A few quick searches for “thanks to x for their” and “... for its” (with x being, for instance, Google, U2, and Exxon) suggest that “for their” is considerably more common, except, oddly enough, when x was UCLA (why is that?).

Unless I’m mistaken, this is a special case of what is called notional agreement. Alternatively, one can see it as an instance of ellipsis, in which “Thanks to x” is understood to mean “Thanks to the people at x.” But in any case, my sense is that treating the thanked entity as a plural group of people rather than as a singular organization, and thus using “their” instead of “its,” is indeed standard usage, though the opposite approach is standard, too (though apparently somewhat rarer).

I’m very pleased to see that Google Scholar now allows searches of a very broad range of caselaw, plus many law review articles. This should make law much more accessible to people who don’t have Lexis and Westlaw (which is also good for us privileged free Lexis and Westlaw users, when we want to link to old cases that had earlier been unavailable).

Still, I’m assuming that this is just (in keeping with Google Scholar’s beta status) an early phase of the project, with much more still to come; and I’m a bit surprised that some pretty obvious features were omitted. For instance, as best I can tell one can’t easily search only court opinions (federal and from all states); the advanced mode let one select “all legal opinions and journals,” or “only US federal court opinions,” or “only court opinions from the following states.” Searching all federal and state cases in one search is impossible; searching all state cases seems to require checking 50 boxes.

Likewise, the search feature yields mysterious results; a search for “volokh” in all federal cases yields lots of cases that never mention “volokh,” nor anything that seems similar to volokh. And Google’s famous metadata glitches make date searching iffy, since some very new articles end up having old dates. Check out, for instance, the prescient 1761 source on computer file-sharing yielded by this query.

But again, I assume there are many more improvements to come in the coming years, and perhaps even one day support for Lexis– or Westlaw-like queries, with good proximity searching, segment searching, and more. And even for now, searching for (and linking to) caselaw is much easier today, at least to those without Lexis and Westlaw, then it was before the new Google features.

The case is NM v. Secretary (Nov. 13); an excerpt (paragraph break added):

We do not think this is an issue as to whether or not an individual in these circumstances is reasonably likely to be discovered on return. The plain fact on the evidence before us is that a genuine apostate, and here we are dealing specifically with conversion from Islam to Christianity, simply would not be able to openly express his change of faith without running a real risk of persecution. The individual would have to keep his faith completely secret; he would have to live a lie; he may be forced to forego contact with others of his faith because of the danger and, significantly, would be constantly looking over his shoulder to avoid discovery in fear of the consequences. In the event it would matter little whether such an individual had family support or not; if discovered the evidence does show that there would be inadequate level of protection available from the Afghan authorities against those who would seek to punish for that conversion.

In our view an apostate could not reasonably be expected to tolerate living in this way in Afghanistan in order to reduce the risk of discovery, and it would be persecutory to expect such an individual to modify his behaviour to that end. It may well be that in some societies solitary and or private worship of another faith may be viable because for example although the background evidence reveals a general intolerance in society toward that belief it does not reach a level where there would be a real risk of ill– treatment on discovery. This is not the case for Afghan converts; there is no evidence that they would be able to conduct themselves in this way. In reaching this conclusion we have borne in mind the Tribunal’s guidance in SZ and JM (Christians – FS Confirmed) (CG) [2008] UKAIT 00082 and HJ (Homosexuality: reasonably tolerating living discreetly) Iran [2008] UKAIT 00044, the latter was approved by the Court of Appeal in XY (Iran) v SSHD [2008] EWCA Civ 911. 

For more on a case dealing with a similar question in the U.S., see this post, though in that earlier case there were questions about the applicant’s sincerity that do not appear to be present in this case.

That’s the title of an article in Current Biology by Birgit Mampe, Angela D. Friederici, Anne Christophe and Kathleen Wermke. The abstract (paragraph break added):

Human fetuses are able to memorize auditory stimuli from the external world by the last trimester of pregnancy, with a particular sensitivity to melody contour in both music and language. Newborns prefer their mother’s voice over other voices and perceive the emotional content of messages conveyed via intonation contours in maternal speech (“motherese”). Their perceptual preference for the surrounding language and their ability to distinguish between prosodically different languages and pitch changes are based on prosodic information, primarily melody. Adult-like processing of pitch intervals allows newborns to appreciate musical melodies and emotional and linguistic prosody.

Although prenatal exposure to native-language prosody influences newborns’ perception, the surrounding language affects sound production apparently much later. Here, we analyzed the crying patterns of 30 French and 30 German newborns with respect to their melody and intensity contours. The French group preferentially produced cries with a rising melody contour, whereas the German group preferentially produced falling contours. The data show an influence of the surrounding speech prosody on newborns’ cry melody, possibly via vocal learning based on biological predispositions.

Thanks to my friend Prof. Haym Hirsh for the pointer.

My cobloggers have blogged about this case, so I thought I’d point to today’s opinion reversing Maye’s conviction. I haven’t yet read the opinion, but the conclusion reads:

Finding that the trial court abused its discretion in not allowing Maye to exercise the constitutional right to be tried in the county where the offense occurred, the judgment of the trial court is reversed, and this case remanded for a new trial.

Thanks to InstaPundit for the pointer.

The opinion is City of Cleveland v. State (Nov. 12), and it rests on (1) state constitutional “home rule” principles, and (2) separation of powers. 

I can’t opine confidently about the first item, which rests on Ohio case law that I’m not familiar with. The analysis seems unsound, since it seems to suggest that comprehensive state deregulatory laws are unconstitutional intrusions on local authority even when comprehensive state regulatory laws are constitutional. But even if I’m right that this isn’t a sensible rule, I’m not sure whether the problem is unsound precedents or unsound interpretation of the precedents. 

On the second item, the analysis seems still dicier, since the court doesn’t really cite any precedents but appears to be coming up with the principle — an unsound principle, in my view — itself: The conclusion is that the law “violates the separation of powers by usurping judicial discretion in the award of attorney’s fees and costs,” and “invites unwarranted litigation and attempts to coerce municipalities into repealing or refusing to enforce longstanding local firearm regulations using the significant burden of financial litigation penalties.” That can’t be right, I think; it is a proper part of the lawmaker’s business, it seems to me, to decide the remedies available in lawsuits, and whether the remedies should be discretionary or mandatory, even when the consequence is “unwarranted litigation” and the pressure to give in to plaintiffs. Still, it’s possible that there’s something about some uncited Ohio separation of powers law that I’m missing here; I know that many states have separation of powers rules that differ from the federal rules.

But what most surprises me about the decision isn’t the substance, but the fact that only one judge signed on to any written opinion — the opinion is labeled as the work of Judge Colleen Conway Cooney, but the other two panel members, Judges Melody J. Stewart and Ann Dyke are labeled as “concur[ring] in judgment only.” 

I realize that some appellate courts decide many cases with no written opinion at all, and that judges (including Supreme Court Justices) sometimes concur in the judgment without an opinion. I also realize that if the judges disagree on the rationale but agree on the result, there might not be a majority opinion, and the three judges might write three separate opinions, each agreeing with the others only in the judgment.

But I’ve never seen a decision holding a state statute unconstitutional in which the majority of the deciding judges didn’t even bother to give any explanation for why they thought the statute is unconstitutional. Is this normal procedure in Ohio? Or is there some other sensible explanation for the situation? Or am I just misunderstanding what happened here?

I should note that a quick check of other recent Ohio Court of Appeals opinions suggests that “concurs in judgment only” is indeed different from “concurs,” and that usually there is an opinion that’s concurred in by two or three judges.

From an SEC filing:

Tri-Deck has also filed an answer and counterclaim in which Tri-Deck is asserting, among other items, damages for tortoise interference of its contractual relationships with others.

See also this Accepted Uses Policy, and Appellant’s Brief in Aviation Leasing Group v. Hyatt Corp., 2002 WL 32148015 (Cal. Ct. App.) (and, yes, the error is in the original document, not just the Westlaw transcription).

UPDATE: Commenter Law Student points to this courtoon.

for their kind words about our blog, which they labeled their “Blog of the Year.”

When you want to say “constituting a tort,” say “tortious,” as in “tortious interference with contract,” and not “tortuous” (unless you’re trying for a pun). The dictionary definition (I quote the Random House here) reports that “tortuous” means “twisting, winding, or crooked,” “not direct or straightforward,” or “deceitfully indirect or morally crooked.” Much tortious behavior may also be tortuous, but the conventional label communicating simply “constituting a tort” is “tortious.”

And some quick Westlaw searches reveal that the dictionary definitions are indeed consistent with legal idiom; “tortious interference,” for instance, appears about 2200 times in American cases from 2008, but “tortuous interference” only about 70 times. (Quickly eyeballing the latter set of cases suggests that they generally do use the term to mean “tortious interference,” and not simply as a reference to interference that happens to be twisting or winding or deceitfully indirect or morally crooked, independently of whether it constitutes a tort.) 

I suspect that “tortuous” to mean constituting a tort is rare enough that it would indeed be properly labeled an error, which is to say a departure from standard usage (see Horace). But even if using “tortuous” in this sense isn’t an error, it’s not idiomatic, and is thus likely to be distracting or annoying to many readers. It’s wiser, I think, to use “tortious” instead.

Senator Xenophon, and not in Greece, either.

UPDATE: If you meet the Senator, you should tell him, “Xenophon? Sounds foreign.”

The New York Times reports:

Wolfgang Werlé and Manfred Lauber became infamous for killing a German actor in 1990. Now they are suing to force Wikipedia to forget them.... German courts allow the suppression of a criminal’s name in news accounts once he has paid his debt to society ....

Now [the lawyer for murderers Werlé and Lauber –EV], in suits in German courts, is demanding that the Wikimedia Foundation, the American organization that runs Wikipedia, do the same with the English-language version of the article....

Not so long ago, the law in some American states — including, most prominently, California, where I live — would actually have been on the side of suppressing the criminals’ names, maybe, sometimes, depending on how a judge or jury would apply a mushy “newsworthiness” standard. Fortunately, some Supreme Court decisions from the 1970s and 1980s recognized a nearly unlimited right to report truthful information from public records, and a 2004 California Supreme Court decision definitively held that the old California cases were no longer good law.

To explain why I think protecting such speech is an excellent decision — and why I’m strongly opposed to some “privacy” and “paid his debt to society” rhetoric in such cases — I thought I’d reprint an excerpt of my Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People From Speaking About You, 52 Stanford L. Rev. 1049 (2000):

[In Briscoe, Reader’s Digest was held liable for revealing that Briscoe had eleven years earlier been convicted of armed robbery (a robbery that involved his fighting “a gun battle with the local police”). The court acknowledged that the speech, while not related to any particular political controversy, was newsworthy; the public is properly concerned with crime, how it happens, how it’s fought, and how it can be avoided. Moreover, revealing the identity of someone “currently charged with the commission of a crime” is itself newsworthy, because “it may legitimately put others on notice that the named individual is suspected of having committed a crime,” thus presumably warning them that they may want to be cautious in their dealings with him.

But revealing Briscoe’s identity eleven years after his crime, the court said, served no “public purpose” and was not “of legitimate public interest”; there was no “reason whatsoever” for it. The plaintiff was “rehabilitated” and had “paid his debt to society.”) “[W]e, as right-thinking members of society, should permit him to continue in the path of rectitude rather than throw him back into a life of shame or crime” by revealing his past. “Ideally, [Briscoe’s] neighbors should recognize his present worth and forget his past life of shame. But men are not so divine as to forgive the past trespasses of others, and plaintiff therefore endeavored to reveal as little as possible of his past life.” And to assist Briscoe in what the court apparently thought was a worthy effort at concealment, the law may bar people from saying things that would interfere with Briscoe’s plans.

Judges are of course entitled to have their own views about which things “right-thinking members of society” should “recognize” and which they should forget; but it seems to me that under the First Amendment members of society have a constitutional right to think things through in their own ways. And some people do take a view that differs from that of the Briscoe judges: While criminals can change their character, this view asserts, they often don’t. Someone who was willing to fight a gun battle with the police eleven years ago may be more willing than the average person to do something bad today, even if he has led a blameless life since then (something that no court can assure us of, since it may be that he has continued acting violently on occasion, but just hasn’t yet been caught).

Under this ideology, it’s perfectly proper to keep this possibility in mind in one’s dealings with the supposedly “reformed” felon. While the government may want to give him a second chance by releasing him from prison, restoring his right to vote and possess firearms, and even erasing its publicly accessible records related to the conviction, his friends, acquaintances, and business associates are entitled to adopt a different attitude. Most presumably wouldn’t treat him as a total pariah, but they might use extra caution in dealing with him, especially when it comes to trusting their business welfare or even their physical safety (or that of their children) to his care. And, as Richard Epstein has pointed out, they might use extra caution in dealing with him precisely because he has for the last eleven years hidden this history and denied them the chance to judge him for themselves based on the whole truth about his past. Those who think such concealment is wrong will see it as direct evidence of present bad character (since the concealment was continuing) and not just of past bad character. . . .

[W]hich viewpoint about our neighbors’ past crimes is “right-thinking” and which is “wrong-thinking” is the subject of a longstanding moral debate. Surely it is not up to the government to conclude that the latter view is so wrong, that Briscoe’s conviction was so “[il]legitimate” a subject for consideration, that the government can suppress speech that undermines its highly controversial policy of forgive-and-forget. I can certainly see why all of us might want to suppress “information about [our] remote and forgotten past[s]” in order “to change . . . others’ definitions of [ourselves].” But in a free speech regime, others’ definitions of me should primarily be molded by their own judgments, rather than by my using legal coercion to keep them in the dark.

So the California Supreme Court’s 2004 decision (Gates v. Discovery Communications, Inc.), and the Supreme Court decisions on which it’s based, are a victory for free speech. And to the extent that they are a defeat for “privacy” under such circumstances, they are a defeat for a form of privacy that the law ought not recognize — a putative right to stop people from telling the truth about what you’ve done.

In response to my earlier remark that “I suspect that sex between an adult woman and a 17-year-old boy is much less likely to be emotionally or physically damaging than sex between an adult man and a 17-year-old girl,” some commenters asked why I thought this. To give one example, from Guest101:

Why? Not trying to be overly PC here, but I really don’t share the intuition that it would make a difference (assuming of course that no pregnancy resulted). Indeed, if the common perception that girls mature faster than boys is correct, wouldn’t one expect the opposite to be true?

I am pretty confident that that sex is more likely to be physically harmful for girls than for boys: Obviously, only girls can get pregnant (something that isn’t strictly a physical harm, but that is often harmful when unintended, and harmful because of the physical consequences of the sex). Also, unless I’m mistaken, females are more likely to get HIV from males than vice versa; females are more likely to suffer directly from the effects of HPV, such as death, illness, or infertility caused by cervical cancer; and females are more likely to become infertile as a result of various sexually transmitted diseases than are males.

I’m less confident (hence the “I suspect”) about the emotional matter, but my sense is that at least in our society today females are still more likely to feel used and degraded as a result of a sexual relationship that has not gone as they had hoped, and in particular that involved less emotional commitment from the other person than they had hoped. Perhaps this is something that is innate; I can see why it might be, though I don’t know if there is any serious evidence of that. Still, whether this stems from nature or nurture, my sense is that this is indeed the case today in America.

But perhaps I’m wrong; again, note the “I suspect.” I certainly haven’t done much research on the subject. (If I had been making the assertion in an academic article on the subject, and certainly if I were in a position to actually sentence someone based on this subject, I would have of course felt obligated to do more such research.) So let me ask you folks this: Is there some serious research on the subject that does shed light on the question, and that either confirms or controverts my intuition?

This is a separate question from the issue whether it is morally proper, and whether it should be constitutionally permissible, to take such sex differences — if they exist — into account at sentencing (a matter I also noted in my original post).

AP reports:

A Las Vegas strip club has agreed to stop an advertising promotion that involved hauling bikini-clad exotic dancers around in a truck with clear plastic sides....

Clark County Commissioner Steve Sisolak said ... “It’s clearly a distraction .... Somebody’s going to turn their head to look at some girl flipping upside-down and spinning on a pole, and take their eyes off the road and could swerve and pop up the sidewalk and plow into a bunch of tourists that are walking along.” ...

Regulations prohibit advertising vehicles that use animation or flashing lights, and Sisolak said he would try to prevent live entertainers from being used, too.

Meanwhile, he’s happy the club owners decided to park the truck....

Thanks to my student Molly Odell for the pointer.

I don’t know enough about the context to opine confidently on the subject, but I thought I’d pass along a link to this BBC News story in case other readers can tell us more about the matter:

The UN has been criticised for stifling debate about net censorship after it disrupted a meeting of free-speech advocates in Egypt.

UN security demanded the removal of a poster promoting a book by the OpenNet Initiative (ONI) during a session at the Internet Governance Forum in Egypt.

The poster mentioned internet censorship and China’s Great Firewall....

The UN said they had received complaints about the poster from “delegates” and that it had not been “pre-approved for posting outside the allocated room”.

Part of the banner read: “internet censorship and surveillance are increasing in democratic countries as well as authoritarian states.

“The first generation of controls, typified by China’s ‘Great Firewall’, are being replaced by more sophisticated techniques that go beyond mere denial of information.” ...

Thanks to BNA’s Internet Law News for the pointer.

So reports the Tennesseean; the sentence is apparently at the maximum of the legally allowed range, and on its own strikes me as very high. Partly this is because I suspect that sex between an adult woman and a 17-year-old boy is much less likely to be emotionally or physically damaging than sex between an adult man and a 17-year-old girl. [UPDATE: If you disagree with my suspicion, or have further thoughts about it, please post it in the comments to this other post, which is specifically aimed at dealing with that question.] But even if the judge was ignoring that because of sex equality principles, 12 years is pretty high even for noncoerced sex between an adult male teacher and a 17-year-old female teacher’s aide.

But there are some possible aggravating circumstances: A Sept. 29, 2009 story Tennesseean reports that she was on trial for having sex with three students, and that she testified that she was raped by one of them, and that the claims by the other two were fabricated. The jury verdict suggests that the jury didn’t believe her rape story. Perhaps the judge thought likewise, and increased her sentence for perjury, especially since the perjury was especially likely to be damaging to the boy whom she accused in her testimony. (Such judicial decisions to increase the sentence because the judge thinks the witness perjured herself are generally permitted with no need for a separate perjury trial.)

Also, though she was acquitted of the charges involving the other boys (Tennesseean, Sept. 30, 2009), perhaps the judge concluded that the evidence showed she was likely guilty, even though not beyond a reasonable doubt. That too is a generally permissible basis for a judge’s enhancing a sentence for a crime of which the defendant was convicted. 

So perhaps the 12-year sentence reflects the judge’s judgment that the defendant had had sex with three 17-year-old boys, one of whom was her teacher’s aide, and that she had also lied on the stand by falsely accusing one of rape. I’m not positive that 12 years is a suitable sentence for that. And if the judge said, as the article paraphrases, that it “didn’t matter if the children involved were 7 or 17, they were entitled to protection at school” as to the sentencing decision — as opposed to the decision that she is legally guilty in either case — that seems a mistake: Surely it should matter for sentencing purposes whether an adult has sex with a 17-year-old or a 7-year-old. Still, the 12-year sentence is much more plausible if considered in conjunction with the apparent perjury, the apparent false accusation of rape, and perhaps the evidence (if credited by the judge) that a similar crime had been committed as to two other 17-year-olds.

Thanks to Elie Mystal (Above The Law) for the pointer, though he takes a different view of the matter than I do. Of course, all this is based just on news accounts and inferences from those accounts — it may well be that there was other evidence introduced at trial that made the judge’s decision more plausible, or less plausible.

From the Indianapolis Star, discussing this blog post (my backup version is here):

Some have called for [Purdue University professor] Bert Chapman to resign or be fired for his Oct. 27 posting, which laid out an argument that the cost for AIDS research and treatment should factor into the national debate over the acceptance of gays and lesbians.

“The most concrete way to protect the university’s reputation against academic dishonesty and mediocrity is for him to resign,” said Purdue senior Kevin Casimer, who is organizing a petition campaign against the professor.

“However, if Purdue administrators and faculty make a unified statement that (Chapman’s writings) are unprofessional and detrimental to Purdue’s reputation and not reflective of the university, the same effect might be made.”

Purdue officials say they have no plans to discipline Chapman, a library science professor who serves as the university’s government information and political science librarian.

“There are many things on the Internet that would be offensive to a lot of people but protected by the First Amendment,” said Purdue spokeswoman Jeanne Norberg. “The best response is to speak up, which is exactly what our students and some faculty are doing.” ...

Note that Purdue is a public university, so that it indeed likely constitutionally barred from firing or otherwise disciplining Prof. Chapman for his speech. Private universities (even ones that get substantial government funding) are not bound by the First Amendment, but only by professional academic freedom principles and by contractual obligations under its tenure contracts (and other employment contracts). For more on this story, see this Inside Higher Ed column by Scott Jaschik.

From the Connecticut Post, apparently discussing this column (my backup version is here):

... The Fairfield Mirror ...[, an] independent student publication[,] faces harassment charges before the school’s Student Conduct Board....

The controversy erupted over a satirical column in the Sept. 30 edition of The Mirror that poked fun at female students who agree to one-night stands. The “He Said” column described a female’s “walk of shame” leaving a male’s dorm, and used words like “pounding” and “hood rat” to talk guys through the morning after consensual sex....

The student editors [of the newspaper agreed, in response to complaints and a threat of being deprived of school funding,] to make changes to ensure editorial content in the paper has no divisive, offensive language that could result in emotional or physical harm to anyone....

If anyone can point me to a copy of the new Fairfield newspaper policy, I’d love to see it; if it is as quoted, this sounds like an appallingly broad policy for a newspaper to agree to, or for any university to demand. The one reference I could see to “divisive, offensive” in the Mirror archives, here, is an assurance only as to the “Coffee Break” section — still troubling, but more limited in scope. On the other hand, it said nothing about “emotional or physical harm,” so perhaps some other policy is out there.

Note that Fairfield University is a private Jesuit university, and therefore not bound by the First Amendment. Nonetheless, it is apparently trying to apply general “sexual harassment” principles, presumably on the theory that the newspaper column created a “hostile, abusive, or offensive educational environment” for the complainants and for reasonable readers based on the readers’ sex. And this could equally be applied under many university speech codes, including public university speech codes. What’s happening to the Fairfield newspaper is an indicator of what might equally happen at public universities as well, so long as those universities believe (as I’ve heard many people argue) that “sexual harassment”-based speech codes are constitutional.

Jeff Quinton on the OnQ Social Media Consulting blog has a report, with links to journalist tweets on the subject. Compare this federal case barring Twitter reporting of a trial, though that one is under federal rules that generally ban broadcasting of trials.

I’m delighted to report that Prof. Nathaniel Persily of Columbia Law School will be guest-blogging this coming week about new work that he, Harvard Government Professor Stephen Ansolabehere, and fellow Columbia Law School professor Jamal Greene have been doing related to public opinion on various constitutional issues.

Last year, Prof. Persily coedited Public Opinion and Constitutional Controversy (published by the Oxford University Press), which presents polling data over the last 50 years on thirteen different constitutional issues and examines public opinion trends following salient court decisions. This past summer, he and Profs. Ansolabahere and Greene conducted a further national public opinion survey on a range of constitutional questions, from traditional ones on issues such as abortion, gun rights, and same sex marriage, to ones on constitutional interpretation, concerning originalism, empathy, and the like. They hope to conduct this national survey every year, and to open it up to questions and cost-sharing with other law schools, emulating the successful Cooperative Congressional Election Survey model that Ansolabehere established for political scientists. 

Prof. Persily’s blog posts will give us a first peek at introducing the results of this first survey; and I hope they will also pique interest in his larger project.

Apparently the Lord God hates them all, according to the Phelpsians (though apparently largely derivatively of God’s hatred of gays). For the addition of us Jews, see this article; for the others, just Google a bit.

The overlap with this list is purely coincidental (I think). Note also the faint echo of this joke.

Thanks to Religion Clause for the pointer. (Warning: The author of that blog is apparently hated by God for at least two reasons, as is the author of this post.)

An interesting story from the Pleasanton Weekly:

Abdul Walid Hamid pled not guilty Thursday morning to charges of battery, grand theft, exhibition of a deadly weapon and a possible hate crime.

Police arrested the 22-year-old Hayward man Nov. 4 after he reportedly robbed a person and scared others at Stoneridge Shopping Center....

According to reports, Hamid was yelling “Allah is power” and “Islam is great” while holding a pen in a fist over his head and witnesses said he had been shouting anti-Christian comments.

Lt. Mike Elerick of the Pleasanton Police Department said the man was not provoked and didn’t threaten violence, but he committed robbery when he grabbed and broke a crucifix off a person’s neck.

Hamid’s family members, who declined to give their names, say it was all a misunderstanding. Outside the courtroom, they said Hamid was provoked when the customer with the necklace reportedly called him a derogatory name. They said Hamid put his hand on the customer’s shoulder, asking the person not to use that word. When the customer pulled away, the family said Hamid’s hand came into contact with the necklace and it accidentally broke....

I had earlier covered a similar case involving a different combination of religions, though also somewhat less serious conduct, so it seemed to me interesting to note this case as well. A few thoughts about the charges:

1. I oppose hate crime enhancements in this case as I do in other cases. (I think such enhancements are a bad idea, though generally constitutional.) Nonetheless, the facts as described would indeed qualify as a hate crime under California law, since the act was apparently “committed, in whole or in part, because of [the religion] of the victim,” or at least the victim’s “[a]ssociation with a ... group with [such a] perceived characteristic[].” One could argue, I suppose, that the accused didn’t care about the religion of the victim, but only about the religiosity of the symbol that he grabbed; but I would think that when a person is attacked because she is wearing a symbol of a particular religion, that would be treated by the law as tantamount to an attack based on the victim’s religion.

2. Would the accused’s displaying a pen in a fist over one’s head constitute brandishing a deadly weapon? The applicable legal rule seems to be this (paragraph break and emphasis added):

There are, first, those instrumentalities which are weapons in the strict sense of the word, and, second, those instrumentalities which are not weapons in the strict sense of the word, but which may be used as such. The instrumentalities falling in the first class, such as guns, dirks and blackjacks, which are weapons in the strict sense of the word and are ‘dangerous or deadly’ or others in the ordinary use for which they are designed, may be said as a matter of law to be ‘dangerous or deadly weapons.’ This is true as the ordinary use for which they are designed establishes their character as such. 

The instrumentalities falling into the second class, such as ordinary razors, pocket-knives, hatpins, canes, hammers, hatchets and other sharp or heavy objects, which are not weapons in the strict sense of the word and are not ‘dangerous or deadly’ to others in the ordinary use for which they are designed, may not be said as a matter of law to be ‘dangerous or deadly weapons.’ When it appears, however, that an instrumentality other than one falling within the first class is capable of being used in a ‘dangerous or deadly’ manner, and it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require, we believe that its character as a ‘dangerous or deadly weapon’ may be thus established, at least for the purposes of that occasion.

This definition has been used to conclude that a screwdriver could, under the right circumstances, constitute a deadly weapon, People v. Simons, 42 Cal. App. 4th 1100 (1996), as could a pit bull, People v. Henderson, 76 Cal. App. 4th 453 (1999). A nonprecedential case, In re John A., 2003 WL 2008173 (Cal. Ct. App.), likewise held that a brandished pen could under the right circumstances constitute a deadly weapon, and, though it’s not a binding precedent, it’s probably a fair predictor of how other courts would rule. The key factual question, I take it, would be whether “it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require.”

3. Battery and grand theft seem to be eminently suitable charges here. (California law defines grand theft to include any theft “[w]hen the property is taken from the person of another.”)

4. UPDATE: A reader asked why this conduct wouldn’t also be robbery, “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” I thought so, too, but apparently under California case law, “something more is required than just that quantum of force which is necessary to accomplish the mere seizing of the property”; “the force that is required to make the offense a robbery is such force as is actually sufficient to overcome the victim’s resistance.” The “from the person of another” branch of grand theft is supposed to cover precisely those thefts form the person of another that involve lesser amounts of force. I’m not positive whether ripping off a chain falls on the sufficient force side, but I suspect the prosecutor concluded that it didn’t (or at least that the matter wasn’t clear), and that grand theft from the person of another was a more suitable charge.

The case is Plummer v. United States, decided today.

Several years ago, before D.C. v. Heller, Plummer was convicted of carrying a pistol without a license and of possessing an unregistered firearm. (He was acquitted of the greater offense of carrying a pistol without a license outside one’s home, so the jury essentially found — perhaps inconsistently with the evidence — that he was only carrying the pistol inside his own home.) But both offenses have as an element that the gun be unlicensed or unregistered, and at the time D.C. law did not allow people to get licenses or registrations for newly owned handguns.

The D.C. Court of Appeals concluded:

In light of the handgun registration and licensing scheme in effect at the time of the incident in this case, Mr. Plummer could not have registered his handgun, but registration was a prerequisite to obtaining a license, despite the Second Amendment right to keep a handgun in his home for defensive purposes.... [W]e conclude that Mr. Plummer preserved and had standing to raise the Second Amendment issue as a defense to the criminal charges against him by moving to dismiss the indictment, even though he did not attempt to obtain a registration certificate and license for his handgun prior to his arrest. See Chicago v. Atchison, Topeka & Santa Fe Ry. Co., 357 U.S. 77, 89 (1958) (where the statute “is completely invalid insofar as it applies to [the company], that company was not obligated to apply for a certificate of convenience and necessity and submit to the administrative procedures incident thereto before bringing this action”)....

[But] whether Mr. Plummer could have successfully obtained a registration certificate prior to the imposition of charges in this case is a question we cannot resolve on this record. D.C. Code § 7–2502.03, formerly codified at D.C. Code § 6–2313 (1995 Repl.) contains qualifications for registration which could have been used to determine whether Mr. Plummer would have been disqualified from obtaining a registration certificate. Mr. Plummer has not challenged those qualifications; they include age, criminal history, mental capacity, and vision. Because it resolved the Second Amendment issue in accordance with then existing precedent in this jurisdiction, the trial court did not have an opportunity to decide the disqualification issue which involves a mixed question of fact and law.

Accordingly, for the foregoing reasons, we are constrained to remand this case to the trial court with instructions to hold a hearing to determine whether Mr. Plummer would have satisfied the statutory requirements in D.C. Code § 7–2502.03.

A reader asks whether the ban on soldiers’ carrying weapons for self-defense on military bases would violate the Second Amendment. One could equally ask whether bans on carrying on military bases by non-soldiers — civilian employees, soldiers’ friends and family members, and such — would be unconstitutional.

I think the answer to both questions is “no.” The government has very broad authority, and rightly so, over the military and over military bases. Military members, for instance, have very limited Free Speech Clause rights, as do outsiders who want to speak on military bases. Naturally, such analogies go only so far, and one can certainly point to possible distinctions between Free Speech Clause rights and Second Amendment rights here. But my sense is that courts will conclude that the government has nearly unlimited powers over private gun possession by its soldiers (whether on– or off-base) and on its military bases (whether by soldiers or others), and that this is likely the correct conclusion as a matter of constitutional law. (I think banning gun carrying by soldiers on-base is generally bad policy, but here I’m speaking only about the constitutional question.)

For my thoughts on the broader question of gun possession on government property (such as public housing), see pp. 87–91 of my Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443 (2009). But that doesn’t deal with the special extra powers that the government has with regard to members of the military, or military bases.

From the Institute for Justice, a law firm for which I have the highest regard:

Subject: Staff Attorney Opening at the Institute for Justice 

Tired of working on cases you don’t believe in? Longing to do something meaningful with your law degree? The Institute for Justice, the nation’s leading libertarian public interest law firm, is seeking a staff attorney to join its merry band of litigators in its Arlington, Va. headquarters. IJ litigates cutting-edge constitutional cases in the areas of private property rights, economic liberty, school choice, and free speech in both state and federal courts nationwide. We’ve litigated cases before the U.S. Supreme Court including the Kelo eminent domain case, the Swedenburg wine direct shipping case, and the Zelman school choice case. We seek attorneys with 0–4 years of litigation experience, excellent communication skills, an entrepreneurial spirit, solid academic records, a passion for freedom, and a good sense of humor. Clerkship preferred. We offer a competitive salary, full health, dental, and life insurance benefits, and a pension plan as well as a collegial, positive work environment and the opportunity to gain real litigation experience with meaningful responsibility in cases that will have immediate real-world impact. If you love liberty and the law and fighting for our nation’s founding principles, this is the place for you.

Send cover letter, resume and writing sample, in confidence, to:

Human Resource Department
Institute for Justice
901 North Glebe Road, Suite 900
Arlington, VA 22203
Email (preferred): employment@ij.org
Fax: (703) 682‑9321

No phone calls, please.

Disclosure: I have in the past gotten a modest fee from IJ for some consulting I did for them.

An amusing story from Claire Berlinski (among other things, the author of a recent book on Margaret Thatcher).

Thanks to InstaPundit for the pointer.

Steve Landsburg (The Big Questions) has the scoop on this, and also on Chilled the Fresh and other noted authors. Thanks to Mark Liberman (Language Log) for the pointer.

As I mentioned before, I’m litigating a pro bono free speech / cyberspace law case before the Nebraska Supreme Court. My client, Darren Drahota, was convicted of two counts of breach of the peace for sending two rude messages to William Avery, who had earlier asked him to stop sending such messages. Avery was Drahota’s University of Nebraska professor and a candidate for the Nebraska Legislature. (Avery was elected and is now a state legislator.) We argued that such speech did not constitute breach of the peace, and was in any event constitutionally protected under the First Amendment; for more details, see here. The Nebraska Supreme Court granted our petition for further review, and agreed to hear the case; we filed the opening brief Oct. 20, and the state’s brief was due yesterday.

Today, we learned that the state has apparently elected not to file a brief. The local prosecutors had of course prosecuted the case, and the Nebraska Attorney General’s office had briefed the case before the Nebraska Court of Appeals. But at the Nebraska Supreme Court stage, no brief is apparently forthcoming. (The Nebraska Attorney General’s office does make such a decision every so often.)

Naturally, the state supreme court will still have to consider the case, since there is a Nebraska Court of Appeals opinion on the books, and the court needs to decide what to do with it. But the state’s decision not to defend the opinion, or the result it reached, strikes me as heartening.