Archive | Popular Culture

Brown v. Buhman isn’t so complicated

To me, today’s decision of the United States District Court for the District of Utah in Brown v. Buhman is much clearer and carefully-reasoned that Orin finds it to be. There may be plenty of blogging on the case, and Eugene’s analysis next week, after he’s had a chance to analyze it, will provide the perspective of the guy who actually did write the textbook on the First Amendment. I have merely taught the First Amendment, using his textbook (and taught the 14th Amendment using Randy’s textbook).

I’m no fan of the collected works of Edward Said, but I thought the Court’s use of Said entirely defensible. As the Court details, 19th-century hostility to polygamy was based, in part, on polygamy’s association with non-white races. As the U.S. Supreme Court wrote in Reynolds v. United States, “Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.” 98 U.S. 145, 164 (1879). Thus, Said’s theories of “Orientalism” and the “other” are useful tools for explaining the situation. The historical analysis is necessary to the case, because part of the Opinion requires an analysis of the 1894 “Irrevocable Ordinance” in the Utah Constitution outlawing polygamy. That constitutional provision was part of the price that Utah paid for admission to the Union.

Utah’s anti-bigamy ordinance has a normal provision, and an unusual provision: “A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.” Utah Code Ann. § 76-7-101(1) (2013).

Judge Waddoups upholds the first part, about marrying a second person, as […]

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Evolving Christian Attitudes Towards Personal and National Self-Defense

Issue number 5 of this year’s Connecticut Law Review is an excellent symposium on firearms law, policy, and culture. The lead article is from Nicholas Johnson, of Fordham: Firearms Policy and the Black Community: An Assessment of the Modern OrthodoxyJohnson (who is my co-author on the Second Amendment textbook Firearms Law and the Second Amendment) details the long and honorable history of Black Americans’ use of arms for lawful self-defense, especially against white racists. Johnson observes that in the late 1960s, Black political leadership abruptly shifted from the community’s traditional support for armed self-defense into being quite hostile to gun ownership.

The Johnson article is a short version of his forthcoming (Jan. 14, 2014) book Negroes and the Gun: The Black Tradition of Arms by Nicholas Johnson (Jan 14, 2014). I very highly recommend the book. It goes far beyond the Connecticut article. The subject of race control and gun control has been a subject of increasing scholarly attention ever since Robert J. Cottrol and Raymond T. Diamond’s 1991 Georgetown LJ article, The Second Amendment: Toward an Afro-Americanist Reconsideration. Having followed the subject carefully for the past two decades, I am amazed by how much original research that Johnson brought to the book, and by the rigorous analysis he provided for the most difficult questions.

In the Connecticut symposium, response essays are offered from leading “pro-gun” scholars (Cottrol & Diamond, Don Kates & Alice Marie Beard) and from leading “anti-gun” scholars (Michael DeLeeuw, David Kairys, Andrew McClurg [my co-author on another gun textbook], and William Merkel).

My own contribution to the symposium is an article titled Evolving Christian Attitudes Towards Personal and National Self-Defense. (SSRN link here; Conn. L. Rev. link here.) My article observes that the Black political leaderships’ sharp turn against self-defense […]

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Colorado Inside-Out 1973 Time Machine

This Friday, July 6, at 8 p.m. Mountain Time, is Colorado Inside-Out’s annual Time Machine episode, on Colorado Public Television, channel 12. These episodes have won three regional Emmy Awards. This year’s episode takes us to 1973, with discussions of Equal Rights Amendment ratification, political violence, the energy crisis, and Watergate.

The characters are, from left to right: KHOW radio host Charlie Martin (Dominic Dezutti), folksinger Judy Collins (Patty Calhoun), Colorado State Rep. Gerald Kopel (me), an obscure actress with a couple Broadway cast appearances (Dani Newsum), and Rocky Mountain News police reporter Al Nakkula (Kevin Flynn). If you don’t live in Colorado, you can watch it on the cpt12.org website, starting sometime next week.

Also on the cpt12.org website, by Friday, will be a bonus segment, set in the year 2025. There we discuss the challenges facing President Chelsea Clinton, as she faces a hostile Congress dominated by the fusionist Green Tea Party.

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Ice-T, Volokh, and Kopel: Together at last in a feature film

The film is Assaulted: Civil Rights under Fire. It opened Friday in a limited theatrical release. Assaulted tells the modern and historic story of the Second Amendment, with a particular focus on civil rights. The events include Reconstruction, the Deacons for Defense, the Battle of Athens, the post-Katrina gun confiscations, and much more. The narrator is Ice-T. On-screen talking heads include Eugene Volokh, Alan Gura, Adam Winkler, Gary Kleck, Dan Gross (Brady Campaign), Bobbie Ross, and me.

The production values of the film are very high; there is even a recreation of the 1946 Battle of Athens, Tennessee.

I thought it was a very good film, although as with any documentary, there were a few parts with which I did not entirely agree. (And I certainly don’t agree with everything that Ice-T has ever said.) I should point out one correction regarding me: the film identifies me as having a Ph.D., which is incorrect; I have a J.D.

Assaulted is currently showing in 16 theaters around the nation; if you would like it to be screened in your town, the website provides a form to request that. Congratulations to Executive Producer Kris Koenig for creating the first documentary about the Second Amendment to make it the screens of ordinary movie theaters. […]

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Batman, Appropriations, and “Augmentation”

My co-author James has made a few posts already this week, and I’d like to thank Professor Volokh for the opportunity to participate here. I’m going to chip in with a post about Batman based on the last few issues of Detective Comics vol. 1, # 871-881. Number 881 is actually the very last issue before the “New 52″ renumbering/revamp/reboot DC Comics did at the end of 2011. The issues in question are collected in trade paperback form. The legal issue we’ll be looking at has to do with government appropriations law. Specifically: is it legal for Bruce Wayne/Batman to donate a privately-funded forensics lab to the Gotham City Police Department?

The background is that, in the aftermath of his return after the events of Final Crisis, Batman decided to start up franchises around the world. This is reflected in Batman, Incorporated, a title which survived the New 52 revamp and continues in its monthly format. But realizing that Gotham City might feel somewhat slighted if Batman simply expanded his activities without giving Gotham any special attention, Bruce Wayne decided to give the G.C.P.D. a fully-equipped, state-of-the-art forensics lab. But because of the somewhat fraught relationship between Batman and the Department, G.C.P.D. does not make routine use of the facilities and only seems to do so when they’re dealing with a super criminal. Regardless, the question for our purposes is whether this kind of arrangement is legally permissible.

I. Federal Appropriations

If the G.C.P.D. were a federal agency, the answer would be “Definitely not.” The Antideficiency Act (31 U.S.C. § 1341) explicitly prohibits an officer or employee of the United States from “mak[ing] or authoriz[ing] an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation”. In other […]

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The Adventure of the Fruit of the Poisonous Tree

(I’ll be honest: this post isn’t really about the fruit of the poisonous tree so much as it’s about Sherlock’s possible status as a state actor and thus whether or not the restrictions of the Fourth Amendment apply to him. The poisonous tree bit just makes for a snappier title and is at least somewhat related to the main topic.)

In many ways Sherlock Holmes is the Ur-superhero, prefiguring Batman. They are both detectives possessing no supernatural abilities, only a keen intellect, physical training, a faithful assistant, and a relentless drive to solve or prevent crime. In the case of the Sherlock Holmes of Elementary, they even share a certain degree of wealth — though Sherlock doesn’t flaunt it, he does use his wealth to solve problems on a few occasions. They also share a strong connection with the police.

It is that connection with the police that is so often a troubling feature of Elementary. Often Sherlock will make a point of his police affiliation in order to gain access to a building or get a person of interest to talk. But at other times he will claim that, since he is not a police officer, he does not need a warrant to perform a search (searches that often include breaking and entering). Which is closer to the truth? Or can he have it both ways?

I. The Fourth Amendment and the State Action Requirement

Like most of the Constitution, the Fourth Amendment restricts the powers of the federal and state governments, not private individuals. In every state except Texas, if a non-state actor independently performs an illegal search or seizure, any evidence obtained is still admissible. In every state, if a government agent does so, any evidence obtained — and any evidence derived from that […]

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The Adventure of the Commandeered Snow Plow

Ordinarily at Law and the Multiverse we stick to more fantastical topics (“superheroes, supervillains, and the law”), so when we were given the opportunity to write some guest posts for the Conspiracy, we realized this would be an ideal occasion to discuss something more down to earth — not to mention more well-known than some of the things we write about. And as it happens over the past several months we’ve received several great questions from readers about the CBS show Elementary.

The first question comes from Jeb, who wrote in about the episode “Snow Angels“, in which Sherlock attempts to commandeer a city snow plow for transportation during a blizzard. When the driver, Pam, refuses, Sherlock invokes his authority as being affiliated with the New York City Police Department. Unsurprisingly, Pam balks at that as well, and Sherlock ultimately resorts to a bribe. Jeb asks:

  • Would a regular policeman have the legal authority to commandeer the snow plow?
  • Is it plausible that Sherlock, as a consulting detective, has the authority to commandeer the plow?
  • Once the bribe is offered and accepted, does Pam have any legal defense or is this straight up bribery?

I. Commandeering Vehicles

We’re all familiar with the trope: a police officer finds himself or herself in need of a vehicle and so announces to the driver that they are commandeering it for police use. But what is the legal basis for this, particularly in New York? In this case, note that Sherlock isn’t seeking merely to commandeer the vehicle but also Pam’s services.

One basis for this might be N.Y. Penal Law § 195.10, which makes it a misdemeanor to refuse to aid a police officer when commanded to reasonably aid the officer in effecting an arrest or to prevent […]

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The Bourne Implausibility: Movie Inspires Blog Post, Which Inspires Video, Which Inspires Blog Post

Three months ago, under the heading “The Bourne Implausibility,” I offered up the following (wry?) observation:

I just caught the last few minutes of The Bourne Ultimatum. At the end (spoiler alert), Bourne successfully exposes everything, and we catch a glimpse of MSNBC, reporting on a secret CIA assassination program “which in several cases may have even targeted U.S. citizens.”

In the movie, it appears that MSNBC believes this to be some sort of scandal.

It has recently come to my attention that someone named “Badger Pundit” has posted a YouTube video inspired by this blog post. Since this is, to my knowledge, the first time that a blog post of mine has inspired a video, it seems only fitting to come full circle and link to the video, here. […]

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The Bourne Implausibility

I just caught the last few minutes of The Bourne Ultimatum. At the end (spoiler alert), Bourne successfully exposes everything, and we catch a glimpse of MSNBC, reporting on a secret CIA assassination program “which in several cases may have even targeted U.S. citizens.”

In the movie, it appears that MSNBC believes this to be some sort of scandal. […]

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Whale Wars Update: Ninth Circuit Calls Sea Shepherd Actions “Piracy”

Here is the opening of Judge Kozinski’s opinion, reversing a lower court ruling and issuing a preliminary injunction in an Alien Tort Statute suit against the Sea Shepherd’s attempts to interfere with Japanese whaling vessels on the high seas:

You don’t need a peg leg or an eye patch. When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be.

Is this right? Paging our very own Eugene Kontorovich, a leading authority on piracy law!  Over at Opinio Juris, Julian Ku and Kevin Jon Heller discuss the opinion.  Myself, I plan to re-watch South Park. […]

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White House Says We Won’t Build the Death Star

The Obama White House knew, of course, that creating a web-based system for ordinary citizens to call on the government to do something, and promising a response if 25,000 people or more sign an online petition within 30 days, would inevitably produce some silliness. There’s a reason we’re not a direct democracy, no matter how dysfunctional Congress has become.  There have been some serious matters raised, such as MPAA Chris Dodd’s (shocking, shocking) insinuations that the Obama campaign owed taxpayer goodies to Hollywood.  And anything genuinely offensive can simply be ignored.  We live in a knowing and ironic age, and what might once have seemed beneath the dignity of the White House can be an opportunity for some light-hearted national and, dare one say it, decently unpartisan fun.

Hence the official White House reaction to the petition calling upon the Obama administration to “secure resources and funding, and begin construction of a Death Star by 2016,” which garnered some 35,000 signatures.  As reported by Entertainment Weekly  (the only truly canonical outlets for this kind of news would have to be EW or Wired, Hollywood or Silicon Valley), here is the official administration response, from Paul Shawcross, Chief of the Science and Space Branch of OMB (we must assume this went through the interagency clearance process and perhaps even constitutes the opinio juris of the United States for purposes of international, nay interstellar, law):

“The Administration shares your desire for job creation and a strong national defense,” begins Shawcross, “but a Death Star isn’t on the horizon.” He cites a Lehigh University study that calculated that a Death Star would cost a deficit-exploding $852,000,000,000,000,000 (that’s $852 quadrillion), notes that ”the Administration does not support blowing up planets,” and rightly points out that it would be foolhardy to build a

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The Knockoff Economy: Copying and Creativity in Cuisine

Yesterday we introduced some of the big themes of The Knockoff Economy, and briefly explained why the fashion industry remains so creative despite having its central product—clothing designs—freely copied by any firm that thinks it can turn it a profit by aping an original design.  In the book we look at several other examples of creative fields in which copying is common. One of the most interesting and fun is the culinary world.

In this post, we thought we’d present a brief excerpt from the chapter on food to give a flavor (so to speak) of the book.  In this excerpt, we discuss the incredibly creative culinary scene that now exists, and how copyright applies (or doesn’t) to cuisine:

“The apotheosis of this trend toward extreme culinary innovation is what is often termed the “modernist cuisine” movement. Practitioners, such as Ferran Adria of the recently closed El Bulli restaurant in Spain and Homaro Cantu of Moto in Chicago, use complex and highly inventive processes to create flavored foams, liquid “olives,” edible inks, and various other savory special effects. Many of these dishes push the envelope of good taste; a few are bizarre and arguably inedible. But they are unequivocally novel, and people pay dearly to experience them.

Even outside this rarified world, however, creativity in cuisine is prized in a way that contrasts sharply with the past. Chefs frequently seek to charge jaded palates through novel combinations of flavors, produce, and technique. The Wall Street Journal, for example, noted in 2006 “a big shift in high-end restaurant culture. . . . The past decade has seen the focus shift to innovation” and away from the apprentice-driven reproduction of classic dishes that anchored cuisine (especially French cuisine) for many decades…

This tremendous output of creativity in contemporary kitchens has

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Emmy nomination for 1951 Colorado Inside Out

Every year the political roundtable show Colorado Inside Out does a time machine episode. Last year’s 1951 episode has just been nominated for a regional Emmy Award, in the news/interview program category. Our topics for the episode were the firing of Gen. Douglas MacArthur, the Korean War, duck and cover training, and the new federal government center in Denver. Characters were the famous singer and actress Ethel Merman, who had recently moved to Denver (played by Westword publisher Patty Calhoun), newspaperman Al Nakula (played by former Rocky Mountain News journalist Kevin Flynn), sociology professor Lois Waddell (played by Dani Newsum), and southern Colorado newspaper editor Cecil Koplowitz (played by me, evoking my father’s first journalism job, in Walsenberg).

We  are getting ready to tape a new episode, which will be set in 1912. Patty Calhoun will portray Denver socialite and social climber Molly Brown. I’m busy reading about the Balkan War which began in 1912. The episode will premiere on Friday, July 6. […]

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Mercedes-Benz: The car for people who admire mass-murdering racist totalitarian thugs

Mercedes-Benz’s latest marketing ploy is to associate itself with Che Guevera. Over at the Huffington Post, Michael Gonzalez (Heritage Foundation) supplies the details.

It’s not surprising that a corporation which is currently pro-Che was pro-Hitler, far more so than many other German businesses during the Third Reich. As recounted in Cecil Adams’ “The Straight Dope”:

Daimler-Benz . . . avidly supported Nazism and in return received arms contracts and tax breaks that enabled it to become one of the world’s leading industrial concerns. (Between 1932 and 1940 production grew by 830 percent.) During the war the company used thousands of slaves and forced laborers including Jews, foreigners, and POWs. According to historian Bernard Bellon (Mercedes in Peace and War, 1990), at least eight Jews were murdered by DB managers or SS men at a plant in occupied Poland.

UPDATE: Regarding Eugene’s post, immediately above. My own view would be that a corporation is a collection of individuals (and, I agree with him, therefore entitled to free speech and other constitutional rights); in the same sense, a human body is a collection of cells. Over time, all of the individuals in a corporation may change; likewise, the collection of cells that constitute “David Kopel” is today very different from the collection that constituted “David Kopel” 45 years ago. Yet the corporate body, like the human body, has a continuing existence as the same entity. (That’s one of the benefits of incorporation.) Corporations sometimes have cultures or other enduring traits that distinguish them even while their individual members may be replaced. It would be accurate to say that Yale Law School is a corporation that places far higher value of scholarly prestige than on teaching ability, and this was true not only today, but also 40 years ago, even […]

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The Atlas Shrugged Movie

I’m sure many people have been discouraged from seeing Atlas Shrugged Part I because of its terrible reviews.

I saw the movie with my wife yesterday at the Arlington Cinema & Drafthouse (where it is showing once a day through Thursday). I thought I was dragging her to a disaster I was only going to see because of my interest in libertarianism but, much to my surprise, she loved it. Note that my wife has never read Atlas Shrugged, is generally apolitical (with some vague libertarian tendencies), and doesn’t know Ayn Rand from Rand McNally. She’s also typically a pretty tough movie critic. Yet, she insisted that we see the movie again.

My take was somewhat less enthusiastic. I think the movie overall was okay, hampered largely by its decision to set the movie in the near future. I also thought the acting was much better than the reviews would have it–especially Taylor Schilling as Dagny Taggart. […]

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