The Volokh Conspiracy

One of the many interesting issues raised by the decision to try Khalid Sheikh Mohammed and other terrorist suspects in New York is whether transferring them to New York gives them any additional rights that they could assert to try to stop the prosecution against them. On Wednesday, the seven GOP Senators on the Judiciary Committee (including my former boss, Senator Cornyn) sent a letter asking the Administration if the transfer could somehow change the detainees’ immigration status. And others may be wondering if the transfer could create constitutional rights, such as Fourth Amendment, Fifth Amendment, or Due Process rights. The question is, does the transfer from one place to another itself create any rights?

The Fourth Amendment question has an easy answer: The detainees would not acquire any Fourth Amendment rights because their presence in the United States is involuntary. See United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). As for whether they picked up any other rights in the transfer, it seems kind of hard to answer because we still don’t know what rights they had while at Gitmo. With habeas jurisdiction established, courts were just beginning to get to the question of what rights the detainees actually had; without knowing that, it’s not clear how much the transfer could add. 

More broadly, I tend to think that the rights question won’t matter so much in the end. The Obama Administration presumably agreed to transfer these guys because they were sure they would be convicted either way. I take that to be the gist of Obama’s response to the idea that it is offensive for KSM to get lots of rights in a criminal trial: “I don’t think it will be offensive at all when he’s convicted and when the death penalty is applied to him.” 

(coauthored with Stephen Ansolabehere and crossposted)

Upon the initiative of my colleague Jamal Greene who has been writing about the popularity of originalism, our July survey included several questions concerning judicial methodology. As cautious as we might be generally about measuring opinion on constitutional questions, our concerns about question wording, issue complexity, and non-salience are heightened in this context. Nevertheless, recognizing those limitations, we sought to examine attitudes on several questions concerning interpretive methodology that other polling firms and scholars have asked, as well as some new ones, such as the appropriateness of empathy in Supreme Court decisionmaking.

We began with the following question that has been asked by the Quinnipiac poll for the last six years:

Which comes closer to your point of view?
1) In making decisions, the Supreme Court should only consider the original intentions of the authors of the Constitution.
2) In making decisions, the Supreme Court should consider changing times and current realities in applying the principles of the Constitution.

To be sure, the question framing is unfair to the originalist position, presents a false dichotomy, and has a host of other problems. Nevertheless, the results have been remarkably consistent, the split shows that there is not lopsided support for either option even given the phrasing, and very few people refuse to express an opinion on the question. On average, 42% identify with the “original intentions” option, 51% identify with the “current realities” option, and only 8 percent “don’t know.” (Since 2003, the share supporting the “original intentions” option has ranged from 39% to 44%. Our survey from July found 40% supporting that option.)

Our survey decided to delve further and asked a battery of questions developed by Jim Gibson at Wash. U., and added a question about “empathy” as well, given its salience to the Sotomayor nomination.

The survey asked: “How important would you say it is for a good Supreme Court judge to…..”

The numbers following each response correspond to the share who say Very important, Somewhat important, Not very important and Not important at all

Strictly follow the law no matter what people in the country may want? 39 42 14 4
Feel empathy for the people involved in a case? 17 41 26 14
Protect people without power from people and groups with power? 52 34 8 5
Respect the will of the majority of people in the U.S.? 34 40 17 9
Stay entirely independent of the President and Congress? 57 31 8 3
Follow his or her conscience or sense of morality? 31 43 15 9
Respect existing Supreme Court decisions by changing the law as little as possible? 30 47 16 5
Uphold the values of those who wrote our constitution two hundred years ago? 53 37 7 2

Apologies again for the my inability to figure out how to insert a table.  As seen in this battery, which does not force respondents to choose among them, every option finds majority support deeming that criterion to be “very” or “somewhat important.” The response patterns range from 90 percent who consider it very (53%) or somewhat (37%) important to “uphold the values of those who wrote our constitution two hundred years ago,” to 58 percent who consider it very (17%) or somewhat (41%) important for a judge “to feel empathy for the people involved in a case.” The only options that a majority considers very important are “stay entirely independent of the President and Congress” (57%), which is no surprise given the relatively low ratings the political branches, rather than the courts, tend to receive from the mass public; “uphold the values of those who wrote our constitution” (53%); and “protect people without power from people and groups with power” (52%), which surprised me a bit given the patterns on the other options.

We are just beginning to delve into the more interesting and important questions as to who identifies with which option – that is, what demographic characteristics and responses to other questions in the survey are associated with attitudes toward interpretive methodology. Here is one finding that seems particularly robust: even when controlling for all the usual demographic characteristics and a range of measures for political conservatism, moral traditionalism, libertarianism, religiosity etc., attitudes toward Roe v. Wade and attitudes toward federal recognition of same sex marriages where it is legal are powerful predictors of the choice of “original intentions” in the Quinnipiac question.

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.

according to Bloomberg.  Not terribly surprising for the “ground zero of the housing bubble,” and launchplace of Condoflip.com.

No Social Security or Medicare tax for a year. Raise the retirement age by one year starting in 2014. Pure fiscal stimulus, no additional long-term debt.

I am pleased to announce that the Justice Department will be moving to dismiss its appeal in the Lori Drew case. The motion apparently will be filed today or tomorrow, and it will bring the Drew case to a close. 

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.

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.

It seems pretty clear that the public opinion trends concerning freedom of expression are pointing in a more libertarian direction. We can see that in responses to questions regarding flag burning, hate speech, and indecent speech. The State of the First Amendment (SOFA) Survey has been asking questions related to these issues for a decade, and the results from the survey Stephen Ansolabehere and I conducted in July (with some questions on these topics added by my colleague Jamal Greene) seem consistent with responses on those surveys.  [Please forgive some of the alignment problems in the tables below; novice blogger that I am, I cannot figure out how to make the columns line up.]

Our survey did not include a flag burning question but the issue is covered in Public Opinion and Constitutional Controversy. At the time of Texas v. Johnson (1989), between 64 and 78 percent of the population supported a constitutional amendment prohibiting flag burning, according to various polls. Most recent polls show a population either split on the issue or with a majority opposing the amendment. The 2009 SOFA survey, for example, found that 60 percent oppose an amendment.

Our survey included the same hate speech questions that the SOFA surveys have included for the past decade. Below are the questions with the results from the 2008 and  2000 SOFA survey for comparison:

“In general, do you agree or disagree that people should be allowed to say things in public that might be offensive to racial groups?”

2009      SOFA 2008       SOFA 2000

Strongly agree                          20%                 24%                 15%
Mildly agree                               28%                 19%                  17%
Mildly disagree                         23%                 12%                  15%
Strongly disagree                     28%                  42% 52%

“In general, do you agree or disagree that people should be allowed to say things in public that might be offensive to religious groups?

2009     SOFA 2008      SOFA 2000

Strongly agree                      25%                   32%                22%
Mildly agree                           29%                   23%                 24%
Mildly disagree                     21%                    12%                 15%
Strongly disagree                 23%                   30%                 38%

Our results are close to recent SOFA surveys in terms of total “agree” versus “disagree”, but their sample seems to show greater numbers at the extremes. The trends seems pretty clear from all available surveys on offensive speech of this character, though. A narrow majority approves allowing offensive speech against religious groups but opposes allowing such speech against racial groups. The support for allowing speech of either class has gone up considerably over the past decade.

The same could be said regarding allowing offensive speech in other contexts, such as indecency and pornography. Since 1997 the SOFA survey asked about agreement or disagreement with the statement: “Musicians should be allowed to sing songs with lyrics that others may find offensive.”

1997     2008

Strongly agree                                              23%      42%
Mildly agree                                                   28%      23%
Mildly disagree                                             16%         9%

However, our survey found a relatively even split on a different question, which may have more to do with people’s attitudes toward television stations than free speech more generally:

“Do you think that the government ought to be able to fine a television network or station if it broadcasts a live interview or live performance where a person uses certain foul language or dirty words?” Yes 46%  No 53%

For what it is worth, a 2005 Time poll found that only 28% thought that the government should fine CBS for Janet Jackson’s nudity during the Super Bowl halftime show.  The General Social Survey also has also shown for some time that most Americans would not favor laws prohibiting  sale of pornography to adults, with a slight shift in a more libertarian direction in the last decade.

The GSS asks: “Which of these statements comes closest to your feelings about pornography laws? There should be laws against the distribution of pornography whatever the age. There should be laws against the distribution of pornography to persons under 18. There should be no laws forbidding the distribution of pornography.”

In 1998, 38% said laws against whatever the age, 57% said laws against for persons under 18, and 4% said no laws.  In 2008, 32% said laws against whatever the age, 64% said laws against for persons under 18, and 3% said no laws.

The answer is not “the rule of law.”  According to the WSJ, Holder said:

The 9/11 attacks were both an act of war and a violation of our federal criminal law, and they could have been prosecuted in either federal courts or military commissions.

So the U.S. government has the option to try suspected members of Al Qaeda in civilian court or in military court.  The “rule of law,” then, does not compel traditional civilian-court protections.  However, the question remains unanswered.  To say that one has an option is not to say why one exercised that option as one did.

Then what is the answer?  It is surely this: the Obama administration has decided to offer a two-tiered system of justice.  We might call them the “high-quality” (civilian) tier and “low-quality” (military) tier.  The high-quality approach offers greater accuracy; the low-quality approach offers less accuracy.  The Obama administration will use the high-quality system against people when it has a strong case, and the low-quality system against people when it has a weak case.

This approach makes sense.  Endless detention without trial is no longer a politically viable option.  The government will make a judgment as to whether a suspect is dangerous or not.  If the case is good, the high-quality system will be used.  If the case is bad, the low-quality system will be used.  In this way, the government can ensure that people it thinks are dangerous will be locked up.

This system is superior to the two possible one-tier systems.  A pure low-quality system (military commissions only) suffers from credibility problems.  People will not believe that all the people who are convicted are guilty.  A pure high-quality system (civilian courts only) would result in too many acquittals.  People who the government believes are dangerous will be back on the streets.  The two-tiered system allows for credible convictions when credible convictions are possible, and (non-credible) convictions when credible convictions are not possible.  The two-tiered system produces higher overall credibility without sacrificing the incapacitation of dangerous (or supposedly dangerous) people.

The main criticisms of Holder’s approach are that KSM and others will take over proceedings and use them for propaganda purposes, that secrecy will be compromised, and that the approach signals insufficient seriousness about the terrorist threat.  The first two concerns are actually irrelevant.  The DOJ will decide on a case by case basis, and if those concerns in any particular case are serious, it will opt for military commissions.  The last concern is harder to evaluate, but it boils down to the claim that a blunderbuss system that results in outcomes that people distrust is better, on symbolic grounds, than a surgical system that produces the same pattern of convictions but with higher overall credibility.  Why would the more intelligent approach signal lack of seriousness about terrorism?

I had a feeling my post predicting the votes on the Privileges and Immunity argument in McDonald v. City of Chicago might draw a disapproving response from Randy, and I see it did. Based on past experience, I gather Randy’s questions directed to me are rhetorical questions designed to defend Randy’s view of the Constitution, not ones asking for my response. But I did want to open a comment thread on the issue in case our commenters wanted to weigh in.

(Oh, and I should be clear that I think McDonald will win on the Due Process argument, perhaps by 7 or 8 votes; I just don’t think more than one Justice is on board for the P or I stuff, especially given that it’s not necessary to even reach the issue to decide this case.)

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).

Below, my colleague Orin offers his predictions as to whether the Supreme Court will restore the “lost” Privileges or Immunities Clause to constitutional law. He may well be correct in predicting but a single vote for that proposition, but I remember when many predicted Angel Raich would get 0–1 votes for her Commerce Clause challenge to the Controlled Substances Act. Instead, in addition to Justice Thomas’s vote, she also received the support of Chief Justice Rehnquist and Justice O’Connor–in a “marijuana case” no less. True, her challenge did fail, as widely predicted, but she definitely beat the spread.

But note that, by Orin’s count, only one Justice is willing to follow the text of the Constitution. According to him, the others will decide the case based on stare decisis–i.e. their own ancient decisions (Scalia), the potentially revolutionary implications of reviving the actual text of the Constitution (Roberts & Alito, the latter of whom gave a speech just last week on the importance of Justices following the actual text as it appears to the naked eye), his personal “style” (Kennedy), and undesirable results (Breyer, Ginsburg, Stevens & Sotomayor). How sad it is that one can implicitly criticize a brief to the Supreme Court of the United States for relying on the text of the Constitution. Although Alan Gura’s brief does stress both original public meaning and original intent, under the relevant precedent Orin thinks the Court will or should (?) follow, the alternative is not that the Privileges or Immunities has a modern meaning but has no meaning whatsoever!

I wonder how Orin would have predicted the grant of cert, which stated the question presented as follows:

Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.

When choosing between the two pending cases in the Seventh Circuit, why would four Justices grant cert on the McDonald case in which the challenge was focused on the Privileges or Immunities Clause and deny cert on NRA case, which confined its argument to the Due Process Clause? Why would they have rejected the City of Chicago’s proposal which limited the question presented to Due Process?

Faced with this background and the actual question presented, I wonder how would Orin have briefed the case. Would he have offered any of the analysis in his post? Would he have told the Court just to ignore the Privileges or Immunities Clause? Or might he not have assumed as an experienced litigator that the Justices could write a Due Process Clause “incorporation” opinion in their sleep–heck, their clerks could write that opinion in their sleep–and then devoted the bulk of his brief to describing the meaning of the Privileges or Immunities Clause in context? 

Ultimately, Orin’s analysis is based in what he thinks will be the Justices’ dislike for the interpretation of the Privileges or Immunities Clause described in the brief. The conservatives will hate the references to “natural rights” while the liberals will hate the references to “property.” Fair enough. But notice that the brief does not offer Alan Gura’s theory of the Privileges or Immunities Clause. All the phrases to which Orin objects are taken from quotes from the historical sources. Was Gura supposed to conceal these sources from the Court or faithfully report them? Orin may think this case is a hoot, but for the parties and the Court it is serious business.

To see where the references to “natural” and “property” originate consider the rights protected from state discrimination by the Civil Rights Act of 1866, which the Privileges or Immunities Clause was intended, in part, to constitutionalize:

to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property

Or consider this portion of Bushrod Washington’s opinion in Corfield v. Coryell identifying “privileges and immunities” to which Art. IV, sec 2 refers, a quote repeatedly offered in Congress to help identify “privileges or immunities”:

What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.

Washington merely borrowed the canonical formulation of natural rights expressly affirmed in numerous state constitutions at the time of the founding and leading up to the Civil War (each of which became or was admitted as a free state):

Massachusetts: “All men are born free and equal, and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.” New Hampshire: “All men have certain natural, essential, and inherent rights; among which are—the enjoying and defending life and liberty—acquiring, possessing and protecting property—and in a word, of seeking and obtaining happiness.” New York: “We hold these Truths to be self-evident, that all Men are created equal; that they are endowed by their Creator with certain unalienable Rights; that among these are Life, Liberty, and the Pursuit of Happiness.” Pennsylvania: “That all men are born equally free and independent, and have certain natural, inherent and unalienable rights, amongst which are, the enjoying and defending of life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.” Vermont: “That all Men are born equally free and independent, and have certain natural, inherent and unalienable Rights, amongst which are the enjoying and defending Life and Liberty; acquiring, possessing and protecting Property, and pursuing and obtaining Happiness and Safety.” Ohio: “That all men are born equally free and independent and have certain natural, inherent and unalienable rights; among which are the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety. . . .” Indiana: (1816): “That the general, great and essential principles of liberty and free government may be recognized and unalterably established; we declare that all men are born equally free and independent, and have certain natural, inherent, and unalienable rights, among which are the enjoying and defending life and liberty, and of acquiring, possessing and protecting property and pursing and obtaining happiness and safety.” Illinois (1818): “That all men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, and of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.” Iowa (1846): “All men are by nature free and independent, and have certain unalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursing and obtaining safety and happiness.” Wisconsin (1848): “All men are born equally free and independent, and have certain inherent rights, among these are life, liberty and the pursuit of happiness. . . .”

This is scary stuff indeed. 

Of course, all that is before the Court is the protection of the right to keep and bear arms. In this case, the Court need not decide how or even whether the other privileges or immunities of citizens should be judicially protected. But the Court now has rich doctrinal resources by which it can protect both the rights enumerated in the Constitution and unenumerated fundamental rights that are as “deeply rooted in our nation’s tradition and history” as are these rights. As the Supreme Court, they may not be as afraid to transfer these constitutional doctrines over to the correct clause as Orin predicts. Of course, that is not likely to happen unless the parties or amici inform the Court of the meaning of the now-lost Privileges or Immunities Clause. The sort of “legal realist” analysis offered by Orin in his post would simply be of no assistance to the Court in reaching its decision. Nor would it help much in oral argument. But who knows? As a mere prediction, it could turn out right, in which case Orin can say he told us so.

For those who are interested, Ed Warren Whelan has some comments on Joan Biskupic’s new book on Justice Scalia.  Part I here and Part II here.

Ed’s conclusion:

My overall take on American Original is decidedly mixed.  On the positive side:  The book is well written, much more so than I expected from my occasional encounters with Biskupic’s reporting.  It is also in many places more evenhanded than I expected.  And I found the first four chapters particularly interesting.

I’ll flesh out the negative side in my posts to come, but here’s an overview:  Consistent with her reductionist depiction of judging as politics, Biskupic does not engage well with Scalia’s ideas about judging.  In particular, I doubt that any reader will come away from the book understanding what Scalia’s original-meaning methodology is, much less his stated reasons for believing that it’s the correct interpretive methodology.  Far from grappling with Scalia’s jurisprudential ideas, Biskupic resorts to flawed and simplistic accounts.  Worse, she misrepresents Scalia’s positions and statements on a variety of matters—always to his detriment.  In sum, although she may well have, as she says (p. 415), “worked hard to be both fair to him and true to the readers of this book,” she has fallen well short of those goals.

Ed’s review reminds me again of why I so admired Jan Crawford Greenburg’s book Supreme Conflict–I was impressed by Greenburg’s effort to really understand conservative judicial philosophy and their effort to distinguish law from policy and politics.  Some may criticize them as failing to live up to this purported goal, but I think that Greenburg’s sense of what animates the debates within the conservative legal movement is correct and that she does describe those debates fairly, even if she doesn’t agree with them (which, to her credit as a journalist, I had no idea after reading the book whether she was actually sympathetic or hostile to conservative legal theories).

One small nugget I took away from the (absolutely terrific) Stanford Law School robotics panel last week was a much better appreciation of how robotics will interact with advanced societies aging — elder-care, health care for the old and infirm, and so on.  Japan leads the way.

Paul Saffo (Stanford professor, futurist, and technology journalist, and very smart guy) remarked that the last ten years had seen an important technological shift, crucial to robotics, in the development of cheap sensor devices.  Sensor devices that could harness the computational power of the chip and make it possible to interface with the real world and, combined with improvements in elements of motion and locomotion, gives the world genuine robots.  It is movement, sensing, and computational power in combination that makes it possible for robots to do things, and do things for us.

That leads to the age of robotics, and — depending in part on what happens to R&D budgets in health care — the care of the elderly is one natural area of application, as well as a source of revenue to fund the industry.  More, faster please, as Glenn Reynolds might say.  Saffo also remarked that in a certain way, old people coming to depend on robots to help and do things for them as the fulfilment of “I have always depended on the kindness of strangers” — robotic strangers, in this case.

I added, and think it more important in setting out future technology trends here than one might initially figure, that a driver of robotic care for the elderly will be that the elderly themselves prefer robotic strangers caring for them, rather than human strangers.  Particularly in all the intimate, intrusive, personal things like bathing and toiletting — I at least would vastly prefer to interact with a machine rather than a home care person.  Robots in that sense help me avoid having to depend upon the kindness of strangers.

This is outside of my usual area of robotic remit — robots and the laws and ethics of war.  But I am rapidly moving to backfill into these other areas as it becomes clear that these questions of technology, but also of law, are interrelated and often versions of the same thing.  The robotic decision whether to fire a weapon or not, if technology ever comes to that point, is importantly interconnected with the question an eldercare robot might have to ask regarding whether to call 911.

(There are several topics raised by the Stanford discussion on robotics and I’ll try to get to several of them over the next few posts.  But I wanted to thank Ryan Calo and all the folks who put the discussion together — it was a great set of discussions for me and I hope for everyone who attended.  I realized, sitting and listening, that there are not that many places in the US where you could hold that kind of discussion, with an audience including engineers and technologists and scientists sitting in the office who actually work in the field, not just in academic departments, but in commercial firms and ventures, trying to make it real.)

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.

One of the most interesting articles I have read on the health care cost issue was this one in the New Yorker that I read over the summer.

Overall, I thought it a pretty interesting insight into the issue.  But that’s not what I’m concerned about here.  What I thought was interesting about it was what an example it provides about the difficulty that people often have in understanding how markets work.  The author, Atul Gawande, is a doctor, not an economist.  At the end of the article he turns to proposals for reform.  And he has this discussion with a doctor:

The third class of health-cost proposals, I explained, would push people to use medical savings accounts and hold high-deductible insurance policies: “They’d have more of their own money on the line, and that’d drive them to bargain with you and other surgeons, right?”

He gave me a quizzical look. We tried to imagine the scenario. A cardiologist tells an elderly woman that she needs bypass surgery and has Dr. Dyke see her. They discuss the blockages in her heart, the operation, the risks. And now they’re supposed to haggle over the price as if he were selling a rug in a souk? “I’ll do three vessels for thirty thousand, but if you take four I’ll throw in an extra night in the I.C.U.”—that sort of thing? Dyke shook his head. “Who comes up with this stuff?” he asked. “Any plan that relies on the sheep to negotiate with the wolves is doomed to failure.”

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.

(coauthored with Stephen Ansolabehere and crossposted)

As part of our national survey of attitudes toward courts and the Constitution performed by Knowledge Networks this past July, we included several items related to election law and voting rights. We wanted to assess public opinion on some contemporary controversies, such as photo ID laws and election-day registration, while also examining classic controversies, such as literacy tests, poll taxes and one person, one vote.

The survey included (among others) the following questions regarding voting rights:

“Below are a list of voting procedures that are or have been used in the United States.
We’d like to know whether you would approve of each of the following in your state.

Require that all people show that they can read in order to vote
55% approve; 44% disapprove

Require that all people show photo identification when they vote
84% approve, 14% disapprove

Require that all voters pay a $5 fee
3% approve; 95% disapprove

Allow people to register on Election Day if they can prove their residency and citizenship
62% approve; 37% disapprove”

On the classic controversies: our poll shows majority support (55%) for literacy tests. This might seem surprising, but this figure is consistent with results from two polls conducted by CNN in June 2006 and October 2007, which asked “Do you think people who cannot read or write English should be permitted to vote, or not?” One concern about those earlier polls was that using the word English might have primed respondents to think about this issue in the context of the contemporaneous debate over immigration, but our poll, which gets the same results, simply says “Require that all people show that they can read in order to vote.”

The same cannot be said for poll taxes, which seem to be almost universally opposed. Only 3 percent support paying a fee in order to vote. Perhaps if the survey had said the fee would be used to pay for elections or public schools (as classic poll taxes did) the figure might be higher, since it seems reasonable to assume that people are generally against abstract fees unconnected to any purpose.

With respect to contemporary controversies, our survey asked about photo ID requirements and Election Day registration. As with most surveys, we found overwhelming support (84%) for photo ID requirements. To be sure, the question did not limit itself to “government issued photo ID,” as many of the challenged laws do, but surveys on photo ID generally find substantial support. Unlike some other surveys that ask about Election Day registration (EDR), we added the qualification “if they can prove their residency and citizenship” and 62 percent of respondents supported EDR when so phrased. Adding that qualification might alter the share supporting EDR (as was our unfounded suspicion with the CNN literacy test questions) by capturing some respondents who focus, in particular, on the citizenship requirement and think the question is asking about raising the barriers to voting rather than lowering them.

It has been a while since surveys have asked about one-person one-vote, and redistricting is a topic most respondents might have difficulty understanding. Recognizing these challenges, we sought to gauge general acceptance of one-person one-vote today. In 1966, a Harris Poll asked: “Another decision of the U.S. (United States) Supreme Court was to... rule all Congressional Districts had to have an equal number of people in them so each person’s vote would count equally. Do you personally think that decision of the U.S. Supreme Court was right or wrong?” 76% said “right” and 24% said “wrong”. In 1969, a Gallup Poll asked: “The U.S. Supreme Court has required states to change their legislative districts so that each member of the lower house and each member of the upper house represents the same number of people. Some people would like to return to the earlier method of electing members of the upper house according to counties or other units regardless of population. Would you favor continuing the present equal districting plan or returning to the earlier plan? 52% said continue present plan; 23% said earlier plan; and 25% had no opinion.

Our survey asked:
“Do you think all legislative districts in your state should have the same number of people per district or is it okay for some to have more people than others?”
Districts should have equal populations – 32%
It’s okay for district populations to differ somewhat – 53%
It’s okay for some districts to have many more people than other districts. – 12%

“Currently all state legislative districts have equal numbers of people. An alternative is to have districts with equal numbers of people in one house of the state legislature but give each county one representative in the other chamber, even though counties have different numbers of people.”
Which way do you think is better?
It is better to have districts with equal populations in both chambers. 54%
It is better to have one seat for each county in one chamber and equal population districts in the other chamber. 40%

The results suggest majority support for something like the current rule of rough population equality for state legislative districts (as opposed to the strict equality rule for congressional districts), but with a substantial share supporting the “federal model” allowing for county representation in one house of a legislature.

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.

Today the Petitioners in McDonald v. City of Chicago, the case on whether the Second Amendment applies to the states, filed their merits brief.   You can read it here.  It’s a truly remarkable brief.  It devotes 55 pages to arguing that the Supreme Court should overturn The Slaughterhouse Cases (1873) and embark on a new era of a newly rejuvenated Privileges or Immunities Clause.  It then gives a mere seven pages, at the very end of the brief, to applying existing doctrine and arguing that the Second Amendment is incorporated and applies to the states under the Due Process clause.   It’s certainly an attention-getting way to brief the case. It’s not just arguing for a win: It’s arguing for a revolution.

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.

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.

First of all, let me take this opportunity to thank Eugene for allowing me to guest blog this week about the survey research I have been conducting with Steve Ansolabehere. We hope to conduct a similar survey annually and are seeking to share the costs and content with interested law professors, along the lines of the Cooperative Congressional Election Survey, in which 30 universities now participate. Interested law professors should contact me if they would like their institution to participate in future versions of this survey.

About two thirds of the survey we conducted in July covers questions that have been asked before, such as the abortion, same-sex marriage and gun rights questions mentioned in my earlier post. This allows us to assess change over time, even if, as many recognize, each question has problems with its wording or framing (e.g., what do respondents mean when they say Roe v. Wade should not be overturned, when few people know what Roe actually said and many of those same respondents would support banning abortions under certain circumstances where Roe and Casey would protect abortion rights?). These concerns are discussed at length in Public Opinion and Constitutional Controversy.

Take for example, the death penalty question that we (and other surveys) asked: “Should the government be allowed to apply the death penalty in any of the following cases:

An adult convicted of murder (77% say yes)
A mentally retarded person convicted of murder (19% say yes)
Someone under 18 convicted of murder (42% say yes)
A person convicted of raping a child (67% say yes)
A person convicted of treason against the US (61% say yes)”

When a survey offers the respondent the option of death penalty or life without parole, aggregate support for the death penalty for an adult convicted of murder drops by about 15 to 20 percentage points. (Incidentally, we see a similar phenomenon with respect to same-sex marriage when a civil union option is provided in the question: the share of the respondents supporting same-sex marriage goes down by ten percentage points or so and the share supporting no legal recognition is about ten points lower than is the anti-marriage response in a two-option question. See here.) However, when pressed, even those who chose life without parole would allow executions in certain circumstances – 1/5 of those preferring life without parole nevertheless opted for the death penalty for Timothy McVeigh, for example, in a CBS poll that pressed the question in 2001. As compared to other recent surveys, ours seems to be at the high end of support for the death penalty. Although substantial majorities historically and today support the death penalty, most observers noticed the trend reversing slightly beginning in the mid 1990s. See here.

As long as I am on the topic of morbid survey items sensitive to question wording, our survey asked the following familiar question concerning the “right to die”: “When a person has a disease that cannot be cured and is living in severe pain, do you think doctors should or should not be allowed by law to assist the patient to commit suicide if the patient requests it? 57 percent said “doctors should be allowed,” and 42 percent said “doctors should not be allowed.” As Joshua Green and Matthew Jarvis explore in their chapter in our book, the response patterns to euthanasia questions will often differ based on framing. Framing that refers to “severe pain” and “physicians” will often lead to higher support for ending the patient’s life, while including the word “suicide” will dramatically lower support. Larger majorities, unsurprisingly, support a terminally ill patient’s right to refuse life-prolonging medical treatment than would support active euthanasia or physician-assisted suicide. With all these caveats, it seems pretty clear that support for euthanasia is substantially greater today than it was thirty years ago, but it is difficult to discern any consistent pattern over the last decade. Several polls show growing support while others suggest support has reached a plateau or slightly reversed.

In addition to these often asked questions, we included some original ones on our survey as well, specifically to test how different frames might affect response patterns. For example, we asked the following question about torture: “Do you think the U.S. military should be allowed to torture those who may have been involved with acts of terror?” 36% said “yes” and 62% said “no.” This rate of response is consistent with other surveys with more qualified wording, such as the Gallup question: “Would you be willing or not willing to have the U.S. government do each of the following to combat terrorism? How about torture known terrorists if they know details about future terrorist attacks in the United States? 39% said yes in 2005; 45% said yes in October 2001. See here. Despite the absence of words and warnings like “known terrorist” or “future attacks”, the response patterns appear similar in our survey.

That division in the population was reversed for the other terrorism-related question we asked: “Should non-citizens suspected of terrorism and detained in U.S. military prisons be allowed to challenge their detentions in the U.S. civilian court system?” 38% said “yes” and 60% said “no.” Given the recent announcement of the impending trial of Khalid Sheikh Mohammed I suspect we will soon see similar polls, and it will be interesting to see whether the salience of the issue shifts opinion one way or the other.