The Volokh Conspiracy

A quibble about an item from the Pi Day site, which I’ve seen quoted in a few places:

Pi is an irrational and transcendental number meaning it will continue infinitely without repeating.

That pi is an irrational number does mean it will continue infinitely without repeating. For all rational numbers, and only rational numbers, the decimal representation of the number will at some point start repeating and keep repeating, e.g., 3.1415926926926926926.... (If you’re wondering about a number such as 2.5, it’s actually 2.50000000...., or for that matter 2.49999999....)

But that pi is a transcendental number doesn’t quite “mean[] it will continue infinitely without repeating.” It’s true that all transcendental numbers are irrational, and therefore will indeed continue infinitely without repeating. But not all irrational numbers are transcendental, so a number’s being transcendental means something more than that it continues infinitely. 

An irrational number (say, the square root of 2) is merely a number that can’t be represented as a ratio of two integers. But a transcendental number is a number that can’t be represented as a solution of any polynomial with integer coefficients: Square root of 2 is thus irrational but not transcendental, because it is a solution of the polynomial x^2–2=0. Pi is indeed transcendental, as is its soulmate e; but it would have been more precise to say,

Pi is an irrational number, meaning it will continue infinitely without repeating, and is also transcendental [possibly followed by a definition].

UPDATE: The same quibble applies to the CNN story, which says “Mathematicians know that pi is irrational — it cannot be represented as one number divided by another — and transcendental, meaning it is not algebraic. That means, theoretically, that its digits will continue on indefinitely without ending in repetition — in other words, the digits won’t suddenly continue infinitely as 5s after 3 trillion digits ....” The “That means” is precise as to the “irrational” part, but I think it doesn’t adequately capture the meaning of “transcendental, meaning it is not algebraic.”

March 14, Pi Day.  3.141 ... also, of course, the return of daylight savings time.  I regret the lost hour, and the sense of weird jet lag, and it would be great if there were any sun rather than a third day of rain, but still, light in the evening!  Life can go on.  I’m increasingly an Aztec by religious conviction, I’m afraid, and every winter I fear that the Fifth Age of the world has ended and the sun will return no more.  So DST is almost like ... an Aztec ritual!  The kindler, gentler, non-human-sacrificial New Fire Ceremony.

Update:  With the approach of spring, I was temporarily seized with the milk of human kindness (kindler, gentler, non-human-sacrificial ...).  Oh heck, I’m an Aztec.  New Fire Ceremony.  You know where this is going.  We must get with the program.

Today’s L.A. Times print edition carries an article with the headline, “Challenging a judicial norm,” and the subhead, “A justice’s wife may test impartiality standards by starting a ‘tea party’ group.” (The online version has a different headline and a slightly different subhead.) The article is about Virginia Thomas, the wife of Supreme Court Justice Clarence Thomas, who has just founded Liberty Central Inc., a conservative activist group.

Of course, Justice Thomas is not the only judge to have had a spouse in a prominent political role. Ninth Circuit Judge Stephen Reinhardt’s wife, Ramona Ripston, has just stepped down from being head of the Southern California ACLU. Third Circuit Judge Jane Roth’s husband was a U.S. Senator; Third Circuit Judge Marjorie Rendell’s husband is a governor. So I’m not sure that there’s really a judicial norm that judge’s spouses should stay out of politics, whether partisan politics, advocacy group politics, or public interest litigation (itself a form of politics, at least when done effectively).

And while the matter hasn’t to my knowledge arisen as to the U.S. Supreme Court, that might have chiefly been a matter of small numbers and the recency of women’s substantial participation in politics, rather than of any consciously accepted norm. All but three Supreme Court Justices have been men. Until recently, women haven’t been involved either in partisan or ideological politics at nearly the level we see now. And it makes sense that of the few male Justices who have served during an era when men their age have wives who might be interested in politics, only one has had a wife who was indeed interesting in that sort of thing. At the circuit judge level, the numbers are just much greater, as are the numbers of female judges whose husbands are interested in politics.

What we have here is the inevitable result of the growing equality of women, the resulting growing tendency of lawyers to marry lawyers (and lawyers are disproportionately likely to go into politics), and the general tendency of people to marry others like them. It makes sense that many judges these days are women whose husbands are of the profession, social class, and cast of mind that makes them want to go into politics. It makes sense that many male judges have wives who are likewise likely to be interested in politics. And of course since spouses are supposed to help each other (and much such help is entirely legitimate), the success of one may yield more opportunities for the other.

Nor does this strike me as particularly pernicious or dangerous: Judges have plenty of political and ideological predispositions that they bring to the job from their earlier lives, and of course they have judicial philosophies that often make them in sync with particular political groups. That too is inevitable, and the fact that a spouse (or a child) has a high-profile political position doesn’t add much, I think, to those existing predispositions. In particular, I don’t think that the desire to remove any such mild additional influence of the judges justifies limiting the lives of the judge’s spouses and children. Virginia Thomas, like Ramona Ripston, should be free to go where her beliefs and talents take her, without having her spouse’s job cripple those ambitions. 

It’s true, of course, that in some situations a judge might have to recuse himself because of a spouse’s or child’s involvement in a case. Judge Reinhardt, for instance, had always recused himself, if I’m not mistaken, in cases involving the Southern California ACLU. But those should generally be relatively rare situations, and limited to the family member’s actual involvement in a case and not just the family member’s political or ideological sympathy or alliance with a party.

And whatever people might think about the bottom line, I’d just be happy if discussions of this issue as to the Thomases would likewise discuss the Ripston/Reinhardts, the Roths, and the Rendells.

UPDATE: I originally said that Judge Reinhardt recuses himself from ACLU cases; his policy actually appears to be that he recuses himself from cases involving the ACLU of Southern California, so I corrected the post accordingly.

Over at BLT, Tony Mauro has this interesting report of a forthcoming New Yorker interview in which Justice Stevens says he hasn’t made up his mind yet whether to retire at the end of the Term.

For the past year or so one of the more enjoyable and enlightening television programs I’ve stumbled across is Dale Alsop’s “G.K. Chesterton, The Apostle of Common Sense” on EWTN (the Catholic television network).  I note it now because according to what has been showing up on my dvr over the past few weeks it appears that the fifth season has finished running and they are currently running repeats starting with the first season.

For those who love Chesterton, little more needs to be said.  For me, on the other hand, Chesterton is a struggle to read.  Many people are charmed by his elliptical round-about essayish style of writing–he’s one of those guys where you are supposed to “enjoy the journey” as he gets to the point.  My brain, however, is a bit too lawyer/social sciene and doesn’t really work that way.  So I find myself getting impatient at times with Chesterton, although like everyone else I do enjoy his nuggets of style and his overall insights.  Moreover, his body of work is so vast that it is impossible to get to all of it and my sense is that (as one might predict) it is of uneven quality.

For those like me, Alsop’s show really hits the mark.  Each show is thematic in nature and Alsop does the work of wading through all of this and chasing down the works and excerpts that best capture Chesterton’s insights and most elegant turns of phrase.  I’ve found it to be a great introduction to Chesterton that has in fact led me to read (and re-read) Chesterton and to get more out of it.  For those who are interested in a good intro to Chesterton, now is a good time to tune in.  I find the excerpts from Chesterton’s fiction (often dramatized) to be especially fun because those are the works that I’d probably be least likely to read on my own.  I believe that “new” episodes air on Sunday evenings and then repeat on Wednesday mornings, but since I just dvr it I’m not exactly sure of the times (I say “new” because, as I noted, I am prompted to write now because they are actually running very old episodes but they seem to run on the same schedule).

As for Alsop’s somewhat hagiographic approach to Chesterton, I suspect one will find it either charming or off-puting.  I find it to be the former, but others may not.  Enjoy.

I’m pleased to say that Ben Zimmer, a contributor to one of my favorite blogs — Language Log — will be the New York Times Magazine’s new On Language columnist, replacing the late William Safire. The press release:

The New York Times Magazine announced today the appointment of linguist and lexicographer Ben Zimmer as the new “On Language” columnist. Mr. Zimmer succeeds William Safire who was the founding and regular columnist until his death last fall. The column is a fixture in The Times Magazine and features commentary on the many facets — from grammar to usage — of our language. “On Language” will appear bi-weekly beginning March 21....

Mr. Zimmer is the executive producer of VisualThesaurus.com and Vocabulary.com, online destinations for learners and lovers of language. He is the former editor of American dictionaries at Oxford University Press and is a consultant to the Oxford English Dictionary. He was previously a research associate at the University of Pennsylvania’s Institute for Research in Cognitive Science. He is a 1992 graduate of Yale University with a B.A. in linguistics. He studied linguistic anthropology at the University of Chicago and is the recipient of many fellowships including ones from the National Science Foundation, the Fulbright Program and the Ford Foundation. He has taught at UCLA, Kenyon College, and Rutgers University. He was a frequent guest contributor to the “On Language” column, and his work has also appeared in The Boston Globe, Slate and several language blogs. He is on the Executive Council of the American Dialect Society and a member of the Dictionary Society of North America.

From Judge Reinhardt’s 133-page dissent in the pledge-of-allegiance case, Newdow v. Rio Linda Union School District, the first dissent I have ever read that comes with a table of contents:

For many Americans, the current version of the Pledge is the only version they have ever known. Some individuals not familiar with our political history may even be under the impression that its language dates back to the founding fathers.fn4
—
fn4 See, for example, the words of former Governor Sarah Palin of Alaska: “If [the Pledge] was good enough for the founding fathers, its [sic] good enough for me . . . .” Eagle Forum Alaska, 2006 Gubernatorial Candidate Questionnaire, July 31, 2006, http://irregulartimes.com/eagle-forum-2006-gubernatorial-candidate.html.

I’ll bet there’s a Reinhardt clerk out there somewhere who is extremely proud of that passage. If you’re curious how the Reinhardt chambers learned of Sarah Palin’s questionnaire, I suspect it may have something to do with the story making the rounds of liberal blogs back in September 2008, nine months after the oral argument in this case. See, e.g., DailyKos, Huffington Post, Think Progress.

From a speech on health care by Speaker Nancy Pelosi (caught by The Wall Street Journal’s Best of the Web). Here’s the context:

You’ve heard about the controversies within the bill, the process about the bill, one or the other. But I don’t know if you have heard that it is legislation for the future, not just about health care for America, but about a healthier America, where preventive care is not something that you have to pay a deductible for or out of pocket. Prevention, prevention, prevention — it’s about diet, not diabetes. It’s going to be very, very exciting. 

But we have to pass the bill so that you can find out what is in it, away from the fog of the controversy. Furthermore, we believe that health care reform, again I said at the beginning of my remarks, that we sent the three pillars that the President’s economic stabilization and job creation initiatives were education and innovation — innovation begins in the classroom — clean energy and climate, addressing the climate issues in an innovative way to keep us number one and competitive in the world with the new technology, and the third, first among equals I may say, is health care, health insurance reform. Health insurance reform is about jobs. This legislation alone will create 4 million jobs, about 400,000 jobs very soon.

It’s going to be very, very exciting!

in a 60-page opinion (Newdow v. Rio Linda Union School Dist.) by Judge Bea, joined by Judge D.W. Nelson; Judge Reinhardt dissents, in a 133-page opinion.

Thanks to How Appealing for the pointer.

From LaRue v. Matheney (S.D. W. Va. Mar. 4, 2010):

Plaintiff’s original 42 U.S.C. § 1983 complaint in this matter sought reinstatement of certain privileges revoked by MOCC as a result of plaintiff’s refusal to comply with the requirements of the prison’s sex offender treatment program. Plaintiff had previously agreed to participate in MOCC’s Quality of Life program, and had signed an “Individual Therapy Contract” obligating him to participate in treatment sessions and to refrain from certain conduct relating to children and to sexual matters, generally....

[Plaintiff] asserts that he is a “Christian Prurient,” and that “sex and nudity is a big aspect of his faith.” He continues as follows:

Plaintiffs contract with Christy Flores, Mental Health therapist, clearly violates his religious doctrines.

Plaintiff contends that fellow inmates retain pornography in their cells. However, due to the Plaintiffs Religious beliefs, the defendants has imposed sanctions for not abandoning his faith to comport with the traditional Established Christian faith.

Plaintiff is the founder, owner, and President of Christian Prurient Faith Outreach Ministry.

Defendants have Prohibited the Plaintiff from practicing his faith by enforcing a contract that he has advised the Defendants to not enforce numerous times. This complaint seeks to do what the Defendants adamantly refuse to do without Court intervintion [sic].

Plaintiff has since filed in excess of one hundred documents in support of his claims. The majority of these documents set forth extensive quotations to the Bible, and describe in detail the tenets of plaintiff’s self-created “Christian Prurient faith,” of which he is the sole follower. Plaintiff repeatedly asserts that his religious rights are violated by MOCC’s enforcement of the therapy contract through restricting his privileges and his access to pornographic materials....

In the instant case, plaintiff acknowledges that the burden with which he takes issue was imposed upon him because of a contract into which he entered of his own volition — a contract of a type which the Supreme Court has found to be constitutionally valid. Even assuming that plaintiff sincerely holds the beliefs he professes, the hardships of which he complains are relatively insignificant, are typical of prison life, and are of his own making. His claims must therefore be dismissed for failure to state a claim upon which relief may be granted.

In today’s Coyote Publishing, Inc. v. Miller, the Ninth Circuit upheld Nevada’s restrictions on advertising legal prostitution; the opinion is long and has much interesting material, but here’s the heart of the analysis:

Increased advertising of commercial sex throughout the state of Nevada would increase the extent to which sex is presented to the public as a commodity for sale. The advertising restrictions advance the interest in limiting this commodification in two closely related ways. First, they eliminate the public’s exposure — in some areas entirely, and in others in large part — to advertisements that are in themselves an aspect of the commodifying of sex. As the harm protected against occurs in part from the proposal of the transaction, banning or restricting the advertising directly reduces the harm.

Second, the advertising restrictions directly and materially advance Nevada’s interest in limiting commodification by reducing the market demand for, and thus the incidence of, the exchange of sex acts for money, which by definition is commodifying of sex. Nevada might be able to reduce the buying and selling of sex acts to a greater degree by instituting a complete ban on prostitution (although there has been no showing that the actual incidence of acts of prostitution, legal and illegal, in Nevada is greater than it would be under a total ban). But it has chosen to take an approach to reducing demand that will not short-circuit the health and safety gains that come with partial legalization....

Nevada’s choice to pursue its state interests by regulating advertising rather than the alternative means of banning all prostitution directly is a unique one in this country, but not one without a well-developed policy basis: partial legalization and regulation serves Nevada’s competing, substantial interests in preventing the spread of sexually transmitted disease and protecting sex workers from abuse. Cf. 44 Liquormart, 517 U.S. at 530 (“The ready availability of [alternatives] — at least some of which would far more effectively achieve Rhode Island’s only professed goal, at comparatively small additional administrative cost — demonstrates that the fit between ends and means is not narrowly tailored.”) (O’Connor, J., concurring) (emphasis added). The First Amendment does not require that a regulatory regime single-mindedly pursue one objective to the exclusion of all others to survive the intermediate scrutiny applied to commercial speech regulations.

Query: How would courts decide whether it’s constitutional to ban or limit advertising of some newly and reluctantly legalized drugs?

Thanks to How Appealing for the pointer.

Looks like a delicious recipe, blogged by my friend Kristina Johnson (a former chef).

Many children today are greatly to be pitied because too much is done for them and dictated to them and they are deprived of the learning processes. We seem to have dropped into an age of entertaining, a breathless going from one sensation to another, whether it be mechanical toys for the five-year-old or moving-picture plays for the sixteen-year-old. It not only destroys their power to think, but also makes happiness, contentment, and resourcefulness impossible. At seventeen, life is spoken of as “so dull” if there is not “something doing” every waking hour.

That’s a quote passed along by Prof. Mark Liberman (Language Log), from Gail Harrison, Modern Psychology in its Relation to Discipline, 53 Journal of Proceedings and Lectures 658 (1915). Prof. Liberman gives more samples as well.

reports the New Orleans Times-Picayune. I take it from the story that the articles of impeachment were approved without amendment; I quote them below.

Continue reading ‘“Judge Thomas Porteous Impeached by U.S. House of Representatives,”’ »

Earlier today the U.S. House of Representatives unanimously approved the first of four articles of impeachment against federal district court Judge Thomas Porteous of Louisiana, the Times-Picayune reports.

From a job posting at the City College of San Francisco:

RE: INSTRUCTOR – ASTRONOMY (GENERAL) ...

EMPLOYMENT QUALIFICATIONS: (State Minimum Requirements) ...

2. Earned Master’s Degree in Physics, Astronomy, or Astrophysics from an accredited institution; OR THE EQUIVALENT; OR ... Hold a fully-satisfied LIFE California Community College Instructor Credential in Astronomy and Astral Physics ....

And from South Dakota House Concurrent Resolution 1009:

A CONCURRENT RESOLUTION, Calling for balanced teaching of global warming in the public schools of South Dakota....

NOW, THEREFORE, BE IT RESOLVED, by the House of Representatives of the Eighty-fifth Legislature of the State of South Dakota, the Senate concurring therein, that the South Dakota Legislature urges that instruction in the public schools relating to global warming include the following:
(1) That global warming is a scientific theory rather than a proven fact;
(2) That there are a variety of climatological, meteorological, astrological, thermological, cosmological, and ecological dynamics that can effect world weather phenomena and that the significance and interrelativity of these factors is largely speculative; ....

Fortunately, the Senate version and the final version limited itself to “climatological and meteorological dynamics.” The sponsor of the House bill says that “astrological” was a legislative drafter’s error, and the drafter meant to say “astronomical” (presumably referring to the debate about the role of solar variability in climate change) — a plausible explanation, but still pretty embarrassing.

Thanks to commenters zuch and Mike G in Corvallis for the pointers.

Not a combination of words that I had expected to see together — yet, as I learned today, it’s apparently something of a movement. (As one might gather from the second word, the first word isn’t exactly being used in a scientific way.)

A very interesting (but legally unsurprising) decision from a federal district court in United States v. Stacy (S.D. Cal. Mar. 2, 2010):

From June 2009 until September 2009, Defendant operated what he claims was a “medical marijuana collective” called “Movement in Action,” located at 1050 South Santa Fe Avenue, Vista, California. According to Defendant, he took great care to make sure that his cooperative was formed and operated in compliance with California law, specifically the Compassionate Use Act (“CUA”) and the Medical Marijuana Program Act (“MMPA”), Cal. Health & Safety Code §§ 11362.5, et seq. , 11362.7.

In July and August of 2009, Defendant sold marijuana on three separate occasions to an undercover detective from the San Diego Sheriff’s Office. Each time, Defendant charged $60 for an eighth of an ounce of marijuana.

On September 9, 2009, there was a county-wide raid, which resulted in the arrests of Defendant and thirteen other individuals who operated collectives in San Diego. DEA agents executed search warrants at Defendant’s home and business, seizing 96 marijuana plants, marijuana-laced food products, marijuana-related equipment and paraphernalia, business records, and a fully-loaded FEG semi-automatic pistol....

Defendant contends that this prosecution violates his due process rights because Defendant reasonably believed that his collective was lawful based on his research of California law, his consultation with an attorney, statements made by Barack Obama when he was a presidential candidate in addition to statements made by other federal officials, and the Supreme Court’s refusal to hear cases involving medical marijuana. Defendant argues that the Court should dismiss this case as a violation of his due process rights or, in the alternative, permit him to present an entrapment-by-estoppel defense at trial.

Continue reading ‘Federal Marijuana Prosecutions and State Medical Marijuana Laws’ »

An interesting article in the Chronicle of Higher Education (I’m not sure if it is subscriber-only) raises some excellent points about the health-reform legislation that hadn’t really occurred to me previously.  One point that I should have thought of myself but didn’t occur to me is the peculiar incentives created by the mandate to cover preexisting conditions:

I guess one could say that the best thing about the current bill is that it allows individuals and families to opt out of insurance coverage until they need it. Since insurance companies would not be allowed to deny coverage based on preexisting conditions, but individuals and families will be penalized only at the rate of only 2.5 percent of their annual income if they do not have insurance, it makes sense for families earning under around $500,000 per year to forego insurance coverage until they get sick. Clearly insurance coverage costs most middle-class families far more that 2.5 percent of their annual income, so the current bill serves as a disincentive to purchase insurance. Bravo, Mr. President!

I should note that her opening and closing sentences in this passage although seemingly facetious are not entirely so, in that elsewhere in the article she discusses how the current version of health insurance encourages overuse of the medical system, overuse of the most expensive aspects of the medical system particularly, and that this high usage level provides no demonstrable increase in health.

A review of data for people over 65, all of whom have health insurance, shows that when they have access to more care, they endure more medical visits and procedures, which costs more money, but does not necessarily lead to improved outcomes.  The folks at Dartmouth have been studying this for years, and their data shows that having access to more specialists and medical facilities increases Medicare costs, but does not improve outcomes. I’d encourage you to read Shannon Brownlee’s insightful book, Overtreated: Why Too Much Medical Treatment is Making us Sicker and Poorer, to understand how overtreatment is costing us more money, but not improving health-care outcomes.

She also calls for tort reform for the medical malpractice system and reforms to align patient and doctor incentives more closely to making more cost-effective choice treatments.

Josh Wright has an interesting comment on the WSJ’s article the other day on the apparent waning of the influence of behavioral economics in the Obama Administration.  In fact, Josh observes something that I noted about the article as well–the example given of the supposed influence of BE (the divergence of interests between landlords and tenants with respect to energy-saving appliances) actually has nothing to do with BE and in fact is a classic example of standard neoclassical analysis.

Josh also raises the key point behind all of this–what happens if the “nudge” provided by the government doesn’t actually get people to do what regulators want them to do?  Do we just nudge harder?  At what point does a nudge turn into a shove–or when do we just skip nudging and instead shove for people’s own good?

If it is possible to know what people “really” want to do, or what regulators think people should do for their own good, it isn’t clear why we wouldn’t just compel them to do it if they won’t do it themselves (the paternalistic slippery-slope observed by Rizzo and Whitman).

I’ll be part of a lunchtime program tomorrow at the Heritage Foundation in DC on “Protecting Consumers in the Financial Marketplace: Thinking Outside the Boxes.”  Program and registration info is here.  I’m looking forward to hearing New Jersey Congressman Scott Garrett who is also on the program and is very knowledgeable about financial reform issues.

Over at the New York Times Room for Debate Blog, Andrew McCarthy comes close to accusing pro bono lawyers for Guantanamo detainees of treason. In his words, such lawyers, “assist[ed] the enemy . . . against the American people during wartime.” McCarthy writes:

Here is the legal profession’s message for the American people: “We’re just more important than you are.” Members of any other profession or institution would be indicted for coming to the enemy’s aid during wartime. Lawyers not only demand immunity from the ordinary duties of citizenship, but they insist that you admire them, or, at the very least, regard them as above criticism for volunteering their services to those trying to kill Americans.

This is a ludicrous concept, so the profession has to engage in serial deceptions to sell it. Most prominent among these is the assertion that every one, no matter how unpopular, is entitled to counsel. Nonsense.

Only criminal defendants are entitled to counsel, and those who represent them do indeed perform a constitutionally valuable function. It has never been the law, however, that war prisoners are entitled to counsel to challenge their detention as enemy combatants.
. . .
The lawyers chose to offer themselves, gratis, to our enemies for litigation the Constitution does not require. They did so knowing that this litigation would be harmful to the war effort — a fact the Supreme Court emphasized when it denied war prisoners the right to file habeas claims in 1950. The fact that we don’t forbid lawyers from doing this hardly means Americans have to approve of it.

Perhaps the most unworthy deception is the comparison of those who volunteer to represent Guantánamo detainees to John Adams’s representation of British soldiers involved in the Boston Massacre. The United States was not at war at that time, the British soldiers Adams agreed to represent were not non-uniformed terrorists, and those soldiers were defendants in a criminal trial. The proud American legal tradition involves defending the unpopular who are accused of crimes but presumed innocent.

It has nothing to do with assisting the enemy in lawsuits against the American people during wartime.

I find McCarthy’s arguments ridiculous, and I want to explain why.

Consider McCarthy’s basic argument that lawyers who represented detainees “aided the enemy in wartime,” and should normally be guilty of treason. If that’s true, isn’t the federal judiciary, and aren’t the Justices of the Supreme Court, also guilty of treason? In fact, aren’t the judges the kingpins of this treasonous plot to “hurt the war effort”? After all, lawyers only make arguments to judges. It doesn’t actually help detainees to make argument courts reject. It’s up to the judges to rule one way or the other. If the lawyers are aiding the enemy, they’re only minor players: It’s the judges, and especially the Justices, who are the real guilty parties, as they’re the ones that actually help the detainees by ruling in their favor. Does McCarthy think the Justices of the Supreme Court are guilty of aiding the enemy, and that (if we treat them like everybody else) they should be “indicted for coming to the enemy’s aid during wartime”? 

Second, McCarthy’s claims about the right to counsel strike me as just wrong. The Bush Administration had initially taken the view that Yaser Hamdi, detained as an enemy combatant, did not have a right to counsel. The Administration caved when the case got to the Supreme Court, though, and the Supreme Court had this to say about Hamdi’s right to counsel:

Hamdi asks us to hold that the Fourth Circuit also erred by denying him immediate access to counsel upon his detention and by disposing of the case without permitting him to meet with an attorney. Brief for Petitioners 19. Since our grant of certiorari in this case, Hamdi has been appointed counsel, with whom he has met for consultation purposes on several occasions, and with whom he is now being granted unmonitored meetings. He unquestionably has the right to access to counsel in connection with the proceedings on remand. No further consideration of this issue is necessary at this stage of the case.

Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (emphasis added). Hamdi was a U.S. citizen, but lower courts have concluded that Gitmo detainees who are citizens of other countries also have the right to counsel. See, e.g., Al-Joudi v. Bush, 406 F.Supp.2d 13 (D.D.C. 2005) (ordering the government to inform detainee counsel about information relating to Guantanamo detainees in light of the detainees “right to counsel, which requires that counsel be able to communicate with them”). Indeed, in the Al-Joudi case, the judge went out of her way to applaud the pro bono lawyers who were representing the Gitmo detainees:

The Court recognizes that Petitioners’ counsel are providing their services on a pro bono basis. Such pro bono representation, especially in controversial and high profile cases such as these, is in the very finest tradition of the American legal profession.

Given these precedents, McCarthy’s claim that “only criminal defendants” have a right to counsel, and that “it has never been the law” that the Gitmo detainees do not, strikes me as simply incorrect.

I find McCarthy’s dismissal of the Boston Massacre comparison very weak. McCarthy is right that the United States was not formally at war with Britain at that time. Of course, there was no United States yet: the trial of the Boston Massacre occurred in 1770, six years before the Declaration of Independence. But more broadly, my understanding is that there was no right to counsel as we know it today in the Boston courts in the pre-Revolutionary period. At common law, defense lawyers were forbidden: When a right to counsel was recognized, as it was generally recognized in the colonies, it was a right to have a lawyer represent you if you happened to be lucky enough to find one willing to represent you. At the time, many criminal defendants had no counsel at all. This matters because it puts John Adams in a pretty different light, I think. When Adams agreed to represent the English soldiers, he was not fulfilling some sort of obligation: No one had to represent the Englishmen. Adams acted — and was criticized then, but celebrated now, for it — because he agreed to represent the soldiers out of a personal conviction that no person should face a trial without counsel. 

Finally, McCarthy strangely overlooks the basic fact that much of the litigation for the Guantanamo detainees concerns whether they are in fact the enemy. McCarthy presupposes that we all know that all the folks at Gitmo are terrorists, and the only issue is whether we feel like helping them knowing that it hurts America. But like the soldiers at the Boston Massacre, and like other criminal defendants, the Guantanamo detainees are “the accused.”

To be clear, I don’t think the lawyers who represented Guantanamo detainees are some kind of heroes. They’re just lawyers doing what lawyers do, presumably for the same weird mix of reasons that lawyers take on other pro bono cases. But that’s the point: There’s nothing exceptional about their decision to represent detainees. 

Richard Epstein responds to this Paul Krugman column criticizing Republican positions on the estate tax, unemployment benefits, and health care reform. For Krugman, Epstein argues, “it seems, scarcity has become a dirty word.”  (HT: Tom Smith)

It does read, “He [the President] shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient” (emphasis added). So it’s actually unconstitutional for the Justices to show up. Shame on them! They should go back to Article III, where they belong. Or, wait, maybe it’s the President who’s at fault for giving the information to unauthorized persons?

Of course that’s actually a vast overstatement: That the President shall give the Congress information about the state of the union doesn’t mean that he can’t give it to others at the same time. The matter here (such as it is) is of tradition, not of constitutional text. Still, if the Justices want a reason to stay away, the Congress Provision of the State of the Union Clause should serve as an adequate excuse.

Query to readers.  Over at Slate Explainer, Christopher Beam explains that although municipalities and cities and such can go bankrupt under the Federal bankruptcy code, states are not included under Chapter 9.  Right, got it.  He then adds something I don’t doubt is true, but wonder if readers can point me to the relevant legal authority — the ability of the Federal government to take a state into “receivership” — something, he adds, that has never happened.

What is the legal authority for this process of Federal receivership of a state of the United States?:

Say the state can’t make its debt payments, and no one will lend it any more money. In that case, the federal government can step in and put the state into receivership. This would involve the assignment of an accountant to manage the state’s debt, overseen by a judge. It would be a lot like bankruptcy, except instead of following a structured set of steps—informing creditors, appointing creditors’ committees, a 120-day window to file a plan, etc.—a receiver has the authority to force creditors to renegotiate loans in a speedy fashion. However, the accountant in charge would not have the power to make decisions about the state’s budget, such as which programs needed to be cut and which taxes had to be raised. (No state has ever gone into receivership.)

Very troubling, indeed.

Another Dartmouth Alumni Trustee election is upon us.  Voting starts tomorrow.  And even though the Board of Trustees eliminated parity a few years ago, alumni still elect one-third of the non ex-officio trustees.  This year there are two seats open.  Journalist Morton Kondracke is running unopposed for one seat.  Petition candidate Joe Asch ’79 and John Replogle ’88 are contesting the other seat.  I was pleased to sign Joe’s petition to obtain access to the ballot and I will vote for him tomorrow.  I hope you will too.  Joe will make a superb trustee.  His website is here.

The case for voting for Joe Asch is made well by current trustees T.J. Rodgers, Peter Robinson, and Stephen Smith in this letter.  I heartily associate myself with their comments but would like to add some additional words.

I see three characteristics of Joe that make him ideally suited to be an alumni trustee: independence, knowledge, and judgment.  I was classmates with John Replogle but I don’t really know him so my comparisons are based primarily on what I’ve read on his website.

Independence: Based on my experience on the board one personal attribute stands out above all else in serving as a trustee–independence.  The Dartmouth boardroom is an extraordinarily conformity-inducing environment and it takes a strong sense of independence in order to keep from being assimilated into its group-think.  Joe has shown that he is willing to support the board and administration when it is in the right but equally willing to raise questions and speak up when appropriate.  Let me make this clear: if you want a rubber-stamp cheerleader trustee, then Joe Asch is not your candidate.  If you want a trustee who is going to ask hard questions, reach considered judgment, and collect deep reliable information on the effects of Dartmouth policies on actual students and faculty, then Joe is your guy.

Alumni should not forget that the current budget crisis at Dartmouth is not unique–it is actually the second time in a decade that the Trustees have managed Dartmouth into a major financial hole (the first one led to the swim team debacle).  Dartmouth needs trustees who are going to be willing to stand up, if necessary, to prevent this from happening again.  Joe blogs at Dartblog where he offers commentary and facts on Dartmouth.  As can be readily seen from reading there, Joe knows the ins and outs of the College’s budget better than anyone I know (including all but one trustee (T.J. Rodgers) with whom I served).  He had repeatedly pointed out areas of waste and bloat.  He also offers praise where appropriate and criticism where appropriate, including his outspoken support for President Kim’s efforts to bring the College budget back into balance.  He supported the former Dean of the College Tom Crady’s efforts to reform the student services bureaucracy and to make the Dean’s office more responsive to student needs.  He is a friend and supporter of Dartmouth’s coaches and athletic programs.  He has been entrepreneurial in his philanthropy, including funding a well-regarded student writing program.  Joe is also willing to tackle issues such as alcohol enforcement and class over subscription that are important to students and faculty but which can be controversial.  This is exactly the sort of courage, creativity, and intellect that the board needs.

Knowledge: Joe would bring an incredible depth of knowledge, both qualitative and quantitative to the board.  He lives in Hanover and has formed friendships with many students and alumni over the years.  He has audited over 30 classes over the past several years.  He routinely has students and professors over to his home (I was a frequent guest during my stint as a trustee).  He understands Dartmouth mission and has the kind of on-the-ground intelligence that one can gain only through those sorts of interactions with students, faculty, and administrators.  This sort of information, responsibly used, cannot help but benefit the board’s decision-making.

When I went on the board in 2005 I had a number of pre-existing friendships with faculty members that I had developed through my academic career.  I found the information that I obtained through those relationships to be invaluable in understanding what was really happening at Dartmouth (and which didn’t always match the official story).  For example, the petition trustees were raising questions about the financial health of Dartmouth and budgetary priorities for several years at a time when the other members of the board (and the alumni establishment) were telling us that we were wrong.  Subsequent events, of course, have proven us out–especially President Kim’s acknowledgment that there is a long-term unsustainable structural budget deficit.

Joe’s depth of knowledge of Dartmouth’s inner workings, combined with his independence, would make him an incredible asset.  Mr. Replogle is a CEO of a trendy division of the Chlorox Corporation and, from what I can tell, seems to believe that it is micro-managing for trustees who actually talk to students, faculty, and administrators and make up their own minds about what works and what doesn’t.  It reminds me of the comment of Judge Jose Cabranes, who said of trustees at the universities where he has served on the board, “No one will be surprised to learn that business executives (who make up a large part of all university boards), for example, prefer to be the sort of trustees that they would hope to have on their own boards—namely, they prefer ‘team players’ who do not disturb the peace of the executive, who recognize the limits of their own competence (limits that are especially visible in an academic setting), and who recognize the effective limits of their authority.”  I don’t know whether that is Mr. Replogle’s view, but his statements and endorsements on his website are not encouraging that he will be willing to resist the party line when necessary.

Again, if alumni prefer a trustee who is simply a blank slate who will be content just to fly in four times a year and take as their sole source of information the official line of the administration and the board majority, then Joe Asch is not your man.  If you are looking for someone who is going to collect information from a variety of sources, including personal experience, then Joe is the sort of engaged trustee that I think Dartmouth needs.

Judgment: Finally, Joe has excellent judgment in deciding what is right for Dartmouth’s future.  Again, this flows from independence, intellect, and knowledge.

First, Joe supports the continuation of parity between elected and appointed trustees as provided in the 1891 Agreement.  Mr. Replogle has waffled on this issue and now come up with some sort of scheme of appointing young alumni to the board.  The bottom line here is clear: the traditional balance of parity served Dartmouth exceedingly well for over a century.  There is nothing wrong with traditional parity and I’m afraid that Mr. Replogle’s effort to conjure up an alternative seems to be nothing more than a transparent cheap political ploy to straddle the issue by trying to appear to be in favor of parity while at the same being afraid to endorse traditional parity, which would put him at odds with the incumbent board majority.  That sort of political fence-sitting does not bode well for an ability to resist the pressures of the board majority to toe the party line.  Indeed, this political calculation is exactly the opposite of the transparency and accountability that Dartmouth needs more of from its leadership.

Parity makes use of the full wisdom of the alumni and through the petition process promotes the election of independent trustees.  Joe is right on this crucial issue–and as Dartmouth’s financial catastrophe has pointed out, the need for independent trustees of colleges and universities is more important now than ever.

Second, Joe understands that promoting dual excellence in teaching and research among Dartmouth’s faculty is both crucial and attainable.  Because Joe has actually been taking classes and has befriended students and faculty over the years, he knows who are the excellent teachers and he knows who are the leading scholars.  He has the trust of many students, faculty, and coaches.  He has been a relentless advocate for promoting the excellence of Dartmouth’s faculty and prioritizing the investments necessary to bring that about.  He has been critical at the departure of some of Dartmouth’s star faculty members, such as Mike Gazzaniga or Walter Sinnott-Armstrong.  Most striking to me (as a professional academic) is that Joe actually knows who are the stars on the faculty and their areas of scholarly expertise.  I was always stunned at how little the non-petition trustees actually knew about the Dartmouth faculty, the work they were doing, and what they needed to succeed.

Joe, by contrast, by being in their classes and interacting with faculty on an ongoing basis is exceedingly knowledgeable about the unique challenges and opportunities of being the most undergraduate-oriented institution in the Ivy League and how to promote dual excellence in teaching and research.  He understands which departments realize this and what they have done in order to prosper.  And he realizes that maintaining this requires a razor-sharp focus on Dartmouth’s financial and intellectual priorities.

For those three reasons–independence, knowledge, and judgment–I am voting for Joe Asch for trustee.  Alumni really do have a choice here between an establishment CEO-type candidate who seems to define his mission as being a good “team player” (in Judge Cabranes’s words) or an independent, courageous, well-informed candidate who supports traditional parity for alumni-elected trustees.

Note: Do to a technical error with accessing the blog today an earlier version of this post was inadvertently published earlier.

Rise up, beer drinkers of Pennsylvania: The State Police want to confiscate your Pliny the Younger. Thanks to Instapundit for the link.

So reports ABC News:

A photo first posted to the humor Web site FunnyJunk.com and later to the Latino Web site Guanabee.com shows packages of Mattel’s Ballerina Barbie and Ballerina Theresa dolls hanging side by side at an unidentified store. The Theresa dolls, which feature brown skin and dark hair, are marked as being on sale at $3.00. The Barbies to the right of the Theresa dolls, meanwhile, retain their original price of $5.93. The dolls look identical aside from their color....

A Walmart spokeswoman, who could not verify the exact store shown in the photo, said that the price change on the Theresa doll was part of the chain’s efforts to clear shelf space for its new spring inventory....

But critics say Walmart should have been more sensitive in its pricing choice.

“The implication of the lowering of the price is that’s devaluing the black doll,” said Thelma Dye, the executive director of the Northside Center for Child Development, a Harlem, N.Y. organization founded by pioneering psychologists and segregation researchers Kenneth B. Clark and Marnie Phipps Clark.

“While it’s clear that’s not what was intended, sometimes these things have collateral damage,” Dye said.

Other experts agree. Walmart could have decided “that it’s really important that we as a company don’t send a message that we value blackness less than whiteness,” said Lisa Wade, an assistant sociology professor at Occidental College in Los Angeles and the founder of the blog Sociological Images....

Wade said that Walmart could have chosen to keep the dolls at equal prices in an effort not to “reproduce whatever ugly inequalities are out there.” 

Now it’s hard to figure out the precise reason for the price cut (and I assume here, based on the implications from the article, that there was a price cut). Maybe the black doll is indeed selling less well because (as Prof. Wade is paraphrased as conjecturing) “black parents are more likely than white parents to buy their children dolls of a different race.” Or maybe black parents were as likely to buy the black doll as white parents were to buy the white doll, but the store bought more black dolls than proved justified by the demographics of the store’s customers. Or maybe black parents are on average unwilling to pay as much for Barbie dolls as white parents (perhaps because black parents are poorer, or because they aren’t as into Barbie). Or perhaps (as the article suggests) the black Barbie doll is less attractive to blacks than the white Barbie doll is to whites. Or maybe there’s some other reason.

But what puzzled me about the story is that it didn’t discuss the effects of the price cut: (1) It disproportionately saved money for black parents (assuming, as is likely, that black parents are the ones who are more likely to buy black dolls). (2) It also made it more likely that white parents would buy the black doll for their white children, which might have broadened their child’s racial horizons (a symbolic effect on the child, perhaps, but the article is all about symbolic effects).

Conversely, while surely Walmart indeed “could have absorbed whatever loss it might have suffered had it kept Ballerina Theresa’s price the same as that of Ballerina Barbie” (to quote the article’s paraphrase of a source), keeping the prices the same means some loss to black parents as well as to Walmart. And while black parents could surely absorb a $2.93 price difference, too, the question — which the article did not confront — is whether they should have to.

A suboptimal newspaper headline, reported by the Language Log. The post closes with a simple but important bit of applied linguistics: An “extra second or two ... is a long time in sentence processing.”

Wilson v. State, decided March 3 by the Texas Court of Criminal Appeals (the highest Texas court for criminal matters), involved two Texas statutes. The first is a Texas statutory exclusionary rule (Tex. Code Crim. Proc. § 38.23), first enacted in 1925:

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case [unless the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause].

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

The second is Tex. Penal Code § 37.09, which provides,

(a) A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he ... makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding.

(b) This section shall not apply if the record, document, or thing concealed is privileged or is the work product of the parties to the investigation or official proceeding.

Now the facts: Ronald Wilson calls 911 “to report that he had found a man’s body”; a magazine clip is found near the body. The police suspect Wilson might have been the killer, and arrest Wilson on unrelated warrants. Detective Roberts questions Wilson, by getting a copy of a forensic report and then editing it to say, “Examination of Item 1 revealed the Two Latent Prints lifted from the Firearm Magazine belong to those of Ronald Wilson ....” (In fact, no legible fingerprints had been found on the clip.) Wilson then confesses.

The court concludes that the confession should have been thrown out, because Detective Roberts had violated the false document statute: He used a document with knowledge of its falsity and with intent to affect the investigation. Roberts didn’t try to dupe the investigators or officials; he didn’t, for instance, submit the fake document to a judge in order to get a search warrant (which would clearly have been a crime, and which would have invalidated the search warrant). He just duped the suspect with it (and note that lying to a suspect is generally permissible). But this did involve the use of a document to affect the investigation, by affecting the suspect’s willingness to confess.

Seems like a very interesting case to me, for several reasons. First, what’s the history behind the Texas statutory exclusionary rule? I wouldn’t have thought that such a defendant-friendly rule was likely to be legislatively enacted.

Second, as the court reads the statute, it would presumably be a crime for an undercover agent presenting a fake identification card in order to infiltrate a criminal ring (since that would be using a document or thing with knowledge of its falsity to affect the investigation), or engaging in a wide range of similar investigative deceptions. Maybe that’s right under the statute, but it’s certainly a pretty striking result.

Third, and independently of whether Detective Roberts’ conduct was a crime, is there some sort of limitation on the statutory exclusionary rule — like on the federal constitutional exclusionary rule — that limits it to crimes that violate the rights of the defendant? The principal dissent suggests that Texas caselaw has recognized such an exception:

[I]t is a fundamental rule of law that only the person whose primary legal right has been breached may seek redress for an injury. Consequently, [s]tanding consists of some interest peculiar to the person individually and not as a member of the general public.... [T]he right to complain because of an illegal search and seizure is a privilege personal to the wronged or injured party, and is not available to anyone else.

And, the dissent argues, because “Section 37.09 ‘does not shield a person from having his liberty interests infringed, nor were appellant’s privacy or property interests implicated’ by any violation of Section 37.09,” appellant lacks standing to demand the exclusion of evidence gathered in violation of § 37.09. But I don’t know enough about the Texas law of standing under the statutory exclusionary rule to comment on which opinion has it right.

Continue reading ‘An Unusual Exclusionary Rule Case’ »

From Steele v. Steele (Ky. Ct. App. Mar. 5, 2010), quoting the trial court:

Upon being asked by the Court to swear that he would testify truthfully, Mr. Steele declined, stating that his religious beliefs prevented him from swearing. He was then asked to affirm that his testimony would be truthful and he again declined for the same reasons. He was then asked by the Court how he wished to proceed and, in a very uncharacteristic moment, declined to express any opinion on the issue. The Court then asked Mr. Steele to simply state that he would answer counsel’s questions truthfully. Even this Mr. Steele declined to do.

Unsurprisingly, this apparently led to the judge’s not letting Steele testify; and I expect that it rather soured the judge on Steele more broadly. People who affirm rather than swearing are generally accommodated without legal objection, and I suspect without much prejudice against them as a result (though that’s hard to tell). The Constitution itself expressly provides for this particular accommodation, which Quakers (among others) have long sought. But if you say your religion tells you that you can’t swear, or affirm, or even just say that you’ll answer truthfully, Caesar is going to take a dim view of you.

So I’m up in beautiful Montreal, getting ready for a lecture I’m giving this afternoon at the University of Montreal on my Jefferson’s Moose book. When the cab pulled up in front of my hotel yesterday afternoon, this is what greeted me:

Well! I’ll have to remember to thank the lecture series organizers for being so considerate :)
The caption reads “L’imagination est plus importante que le savoir” [“Imagination is more important than knowledge”] — A. Einstein. C’est vrai, et tres, tres Jeffersonienne ... 

It seems someone got the crazy idea that Lindsay the E-Trade baby’s “milkaholic” friend was modeled on Lindsay Lohan — and now Lohan is suing the company for $100 million.  No joke.

Eugene and Jonathan and a host of others have joined in defending the pro bono work that some Justice lawyers did for Guantanamo detainees. To me, though, this seems to be a much harder question than the critics make it out to be.

To start with, some of the arguments in favor of the attorneys don’t hold water. No one had to work for free to make sure the detainees had a right to counsel. Every one of the Guantanamo detainees already had a military defense counsel, paid for by the government. Nor did anyone have to work pro bono to even up a mismatch in power and resources. The military prosecutors are JAGs — and pretty much indistinguishable from the military defense counsel on the other side of the courtroom. It was, by and large, a fair fight.  If you think the weight of government resources (such as they are in deficit-strained times) makes the fight less fair, I would note that, unlike practically all other criminal cases pitting government against defendant, there were government resources on both sides of the detainee fight. Kuwait, for example, reportedly funneled millions of dollars into both legal and public relations help for its detainees.

Of course, I agree completely that it’s not fair to simply conflate the views of lawyer and client. But even so, I would argue that, unlike paying clients,  pro bono work does tell you something about a lawyer’s views.

Here’s why.  As with anything you give away, the demand for pro bono lawyering outstrips the supply. So lawyers have to use other criteria to allocate their pro bono services. If you’ve got a wide choice of pro bono cases, it’s only natural to pick cases that make you feel good about yourself, that enhance your prestige in your social circles, and that help the firm recruit law students. You’ll also favor cases that allow you to demonstrate competence by winning against the odds in a high-profile matter. In short, you’ll take cases that make you and your firm look good.

It seems to me that this is exactly Liz Cheney’s point. These are lawyers who represented avowed enemies of the United States – for free – because they thought it made them look good. If you don’t share that view, she’s saying, maybe you don’t share their other views about how the justice system should handle terrorism cases.

Cutting against this analysis is the argument that lawyers often defend even unpopular and unlikeable clients in order to preserve an important principle.  In that well-worn narrative, lawyers bravely stand against the tide of popular opinion to vindicate a principle, not to help a particular client.  But does that trope really apply to these representations? How do you separate client from principle when the principle at issue is how we should treat a few hundred people held at Guantanamo? For all the grand talk on both sides, it seems to me that’s pretty much what’s at stake in the detainee cases. It’s not like a fourth amendment case, or a municipal employee free-speech case, where the principle you’re defending will affect tens of thousands of unknown litigants in a wide variety of future contexts. The precedents set in these cases will, as a practical matter, apply almost exclusively in a swatch of Cuban scrubland ten miles square.

But put that aside.  I don’t doubt that many of the pro bono lawyers for the detainees saw themselves in exactly that light — they intended to vindicate principles they valued, and not to give comfort to the defendants.  We can still learn a lot about a lawyer who takes a case on that basis.  Almost by definition, issues that split the Supreme Court can be argued either way. But these lawyers felt so strongly about these arguable principles that they sacrificed paying work and instead went to work without charge for people they loathed – just to turn their principles into law. Doesn’t this tell us something about the strength and content of their principles? And isn’t it fair for Liz Cheney to ask whether the rest of the country shares those principles?

No, says the Indiana Court of Appeals in Washington v. State. Correct, I think: The Supreme Court has repeatedly said that the standard for a Terry frisk is whether the officer reasonably suspects the person is “armed and dangerous.” “Armed” alone shouldn’t be enough, although of course in many cases the two will go together.

Thanks to FourthAmendment.com for the link.

On Wednesday March 10th, I will be commenting on the oral argument in McDonald v. Chicago in a speech at Florida International University law school in Miami. The event is open to the public and will be held at noon in room 2002 of the Rafael Diaz-Balart Hall. 

I also have upcoming Federalist Society student chapter sponsored speeches at the University of Virginia (4/1), Richmond (4/2), Columbia (4/22), and Stanford (5/3).

[1:55 pm: Bumped up above the other posts on this case.]

I’m blogging today about the Supreme Court’s decision to hear the funeral picketing case. That’s the one in which the jury entered a $10.9 million verdict (reduced by the trial judge to $5 million) against the Phelpsians for their offensive picketing 1000 feet away from a military funeral, and the Fourth Circuit reversed the verdict. 

Continue reading ‘The Intentional Infliction of Emotional Distress Tort and the Freedom of Speech’ »

I generally don’t like to put up “me too” posts, but I did want to express my agreement with Jonathan Adler’s (and many others’) defense of the Justice Department lawyers who, while in private practice, defended various Guantanamo detainees pro bono. 

As I argued in a similar controversy three years ago, I’m sure that the lawyers believed that their actions may (a) reduce the risk of factual error (continued detention of detainees who aren’t really guilty), (b) reduce the risk of legal and constitutional violations (deprivation of what the lawyer thinks are important due process norms), or (c) reduce the possible indirect harm that such erosion of due process norms can cause to others in the future. And they believed that, when a legal process is available — as the Supreme Court has held that it is — the legal system is benefited by having trained, qualified lawyers involved on both sides of the process, so that courts and other tribunals see an adversarial presentation with the best cases made for both sides. The lawyers’ actions were thus well within the longstanding and honorable American tradition of advocating for constitutional rights, even when one’s clients may well be very bad people.

Here’s standup comic Demetri Martin on his two years at NYU Law School and the “Word of the Day” game.  Good stuff.

Hat tip to TaxProfBlog.