Each program focuses on a particular artist, particular period, and/or particular style, combining some context and discussion with a selection of some of the best recordings. I just finished listening to the January 2007 broadcast on the excellent but obscure tenor saxophonist J.R. Monterose, as well as the August 2009 broadcast on the Claude Thornhill Band. Both were excellent. If you’re interested in learning more about jazz, or you want to hear more about a particular jazz musician or style, the program is well worth checking out.

The work of allocating capital in the capital markets, if not precisely God’s work, is so crucially important to men and women on earth that there is something wrong with these days having to defend it.  The little pieces of paper are vastly more efficient to steering rivers and seas of capital to and among enterprises — little gates and sluices in which small movements on paper can create immense movements in real life — than trying to do it by, what exactly?  Physical occupation of the premises as the sign of ownership?  Holding of hostages as collateral for a loan?  So I am untroubled by Goldman bankers getting rich, provided that their services serve efficient allocation; the problem is rules of a game that reward many wrong things and turn investment banking into a combination of crony capitalism and moral hazard.  Goldman’s current bonus pool is in large part a transfer, via yet more subsidized risk, from taxpayers to the firm; I trust in God and Blankfein that a goodly share of the booty will eventually wend to we shareholders.  But booty it is.

The problem here is not, and never has been, finding yet another little political fix to stick on top of the existing set of mis-allocation rules.  A “political offensiveness” tax, perhaps, under the socialist-sounding name of ‘excess profits’ or the capitalist-sounding name of ‘clawback’?  It’s neither, or both, of course.  The fixes-on-fixes eventually become flow-throughs to politicians like Chris Dodd; they permanently shift capital allocation into political allocation; and above all they don’t efficiently allocate capital.  Unless of course you’re Senator Dodd.  The answer has to lie at creating level playing fields at the base level, so that risk and return correlate for private parties, and they don’t have to apologize to anyone for the risks or the returns or the losses.

This is why Goldman Sachs’s cynical and tone-deaf small business program should serve as a wake up call for what business our capital allocators seem to think they are in.  At $500 million, the amount is paltry — 2.5% of the Goldman compensation pool or that ballpark.  And it does not even go to small business as such.  As the Wall Street Journal reports this morning (Deals and Deal Makers, Mike Specter, C5, November 19, 2009, I’ll post a link later), none of the small businesses emailing and telephoning in desperation for financing will “receive a check from Goldman Sachs.”  Instead:

“Goldman will spend $200 million on education and training programs, while funneling $300 million to so-called community-development financial institutions which largely serve historically disadvantaged communities that have had trouble accessing capital.“

One does not have to be a populist of the right or left to sniff that this is a ham-fisted PR program backed by miniscule funding.  Nor is this simply (as the quite interesting FT feature today on Goldman suggested) an ordinary case of Goldman corporate charity, of which it traditionally has done a great deal.  If it were, it would be much less problematic.

The much more important point is not what charity means — it is what high level business and finance have come to mean, when Goldman Sachs urgently decides that it needs to ”give back“ a sliver of what the taxpayers gave by giving it to ... community organizing.  It’s not corporate charity; it is protection money, clumsily done because unlike, say, Fannie and Freddie, Goldman is not used to doing it.  The message is that the future of the economy lies in crony capitalism and tending to the government relationships that happen, in this administration, to be community development institutions.  Even if the GSEs, Fannie and Freddie, showed what a splendid business model could be had tending to the care and feeding of Congress, its embrace by supposedly non-GSE Goldman Sachs shows us the way.  Apparently it will be a very efficient political capital market indeed.

(PS.  Note to journalists ... might any of the community-development institutions turn out to have ACORN ties?  I have zero idea whether this might be so.  Given the long-standing relationship of ACORN to the banking world via precisely these kinds of institutions, however, one should at least wonder.  And I at least would be curious to know whether Goldman thought vetting for this was a consideration.  Would Goldman consider this a bug or a feature in dealing with the current powers that be?)

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.

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

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

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

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

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

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

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

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.

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?

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.

As I understand the current proposals, the individual mandate would operate as follows: A tax would be imposed on all individuals, and the tax would be offset by a credit for those who purchase or are otherwise covered by qualifying plans.  The constitutional problem would arise if this tax is considered a “direct tax.”  Why?  Because Article I, section 9 provides: “No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.”  “So if mandate is imposed through the tax code, and the provision operates as a “capitation” or “other Direct tax,” it would have to be apportioned.

Do the respective individual mandate provisions constitute direct taxes?  I’m not sure.  “Indirect” or so-called event taxes are not subject to apportionment under Article I, section 9, and income taxes were exempted from the apportionment requirement under the 16th Amendment.  So the question would be whether any tax imposed on those who fail to purchase qualifying health plans would constitute a “direct” tax, or whether they could be properly characterized as indirect or income taxes. From what I understand, the tax in the House bill is, at least for some individuals, based upon income up to a set threshold.  This might be enough to avoid the Article I, section 9 problem.  I have not yet had a chance to look at how the mandate provisions are written in the Senate bill.  I would be curious to read what others think about whether an individual mandate imposed through the tax code could run afoul of Article I, section 9.

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.

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.

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%
Strongly disagree                                         31%      24%

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 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?

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

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

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

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

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

(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.)

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).

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.

First, I would recount the scholarly consensus that SlaughterHouse was incorrectly decided, in that the P or I Clause was meant to provide substantive protection for individual rights beyond the extremely narrow category of rights enumerated in SlaughterHouse.

Second, I would explain why I think it’s important to decide this case on P or I grounds.  My argument would be that in due process incorporation cases, the Court has consistently (and thoughtlessly) determined that the scope of the right against the states is precisely the same as the scope of the right against the Federal government.  This is problematic in the context of the right to bear arms because of the confusion over what the “militia” language in the Second Amendment means.  Heller came out the “right” way, but by a bare 5–4 majority, with much dispute about whether the Second Amendment was meant to protect an individual right to bear arms.  By contrast, it’s entirely clear that the Framers of the Fourteenth Amendment thought that the P or I Clause protected an individual right to bear arms.  In particular, they understood that African Americans and “carpetbaggers” needed weaponry to protect themselves from assaults by armed Southern terrorist groups.

Third, I would try to craft an argument that would appeal to the Court’s four conservatives, by far my most likely votes.  I would conclude that originalism isn’t  nearly enough–as witnessed by Antonin “Mr. Originalism” Scalia’s appalling concurrence in the Raich v. Gonzalez.  Indeed, it’s unlikely that judicial, as opposed to political, ideology, ever persuades more than a Justice or two on a previously settled issue.

So what are the conservatives’ concerns that need to be addressed? (1) Further undermine Roe v. Wade, and certainly don’t create a free-floating liberty interest under P or I that can be abused by liberals; (2) Don’t bring back the dreaded Lochner.

The argument would go like this: (a) the Court should take this opportunity to start to move its individual rights jurisprudence from the Due Process Clause to the P or I Clause; (b) The problem with the D.P. Clause is that it traditionally prohibits “arbitrary” infringements on liberty, but arbitrariness is in the eye of the beholder, as is what is meant by “liberty,” see in both contexts Roe v. Wade; (c) worse yet, cases like Roe fail to give any real weight to the police power, the traditional brake on the D.P. Clause; (d) by contrast, through historical investigation, we can determine with some precision what rights were considered privileges or immunities of citizens.  Abortion, (right to die, etc.) was not one of them!; (e) Justice Field and Justice Bradley were correct in their SlaughterHouse dissents that one p or i of citizenship is the right to pursue an occupation  free from government-sponsored monopoly, a much narrower right than the later Lochner due process right to be free from arbitrary restrictions on liberty of contract, and a right that goes way back in Anglo-American history; (f) the ultimate holding of SlaughterHouse was still correct, because Louisiana had a legitimate police power interest in ensuring that its waterways didn’t carry disease, and the butchers who sued weren’t driven out of the profession, they just had to work in the safe location dictated by the government and pay a license fee to the slaughterhouse owner.

So, by deciding McDonald on P or I grounds, the conservatives can (1) help ensure the survival of the individual right to bear arms, and ground it in a much less controversial historical context, while leaving more room for federal than for state regulation of firearms; (2) start the process of transferring liberty jurisprudence from the D.P. Clause to the P or I Clause, which should help undermine Roe v. Wade and other rights with no historical basis as of 1868; and (3) allow some room for the Court to engage in serious review of a very narrow category of abusive economic regulations, along the lines of the cases brought by the Institute for Justice (requiring hairbraiders to take a two-year cosmetology course, creating a government-imposed cartel in funeral caskets, etc.)

In short, I would appeal not just to originalism, but to the conservatives’ long-term political self-interest, and affinity for the conservative political coalition that put them in power.

And I should add that I do not in any way mean to disparage or criticize any of those who are writing or have written briefs in this case.

UPDATE: Josh Blackman makes a good point in the comments: if the conservatives don’t define (and limit) the scope of the P or I Clause while they have a majority, the liberals may do so in the future, with very unconservative consequences.

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).

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.)

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.

Former President George W. Bush, outlining plans for a new public policy institute, on Thursday said America must fight the temptation to allow the federal government to take control of the private sector, declaring that too much government intervention will squelch economic recovery and expansion....

“As the world recovers, we will face a temptation to replace the risk-and-reward model of the private sector with the blunt instruments of government spending and control. History shows that the greater threat to prosperity is not too little government involvement, but too much,” said Mr. Bush...

Bush’s belated support for free markets follows in Hoover’s footsteps. After leaving office in 1933, Hoover wrote books and articles defending free markets and criticizing the Democrats’ New Deal. Some of his criticisms of FDR were well-taken. Many New Deal policies actually worsened and prolonged the Great Depression by organizing cartels and increasing unemployment. But by coming out as a free market advocate, the post-presidential Hoover actually bolstered the cause of interventionism because he helped cement the incorrect impression that he had pursued free market policies while in office, thereby causing the Depression. Bush’s post-presidential conversion creates a similar risk: it could solidify the already widespread impression that he, like the Hoover of myth, pursued laissez-faire policies which then caused an economic crisis.

What should Bush now do if he genuinely wants to help the free market cause? The best thing would be to take up economist David Henderson’s half-joking suggestion that he “express his regret at nationalizing airport safety, carrying out illegal surveillance of U.S. citizens, raiding medical marijuana clinics, bailing out General Motors, AIG and other companies, and socializing prescription drugs for the elderly [the biggest new government program from the 1960s until the present financial crisis].” Bush could also point out that he advocated an ideology of “compassionate conservatism” that included vastly expanded government, and an “ownership society” that (in his own words) involved “us[ing] the mighty muscle of the federal government” to incentivize dubious mortgages of the kind that helped cause the financial collapse of 2008. The greatest contribution Bush can now make to free market policies is to dispel the impression that he pursued them while in office.

It is probably unrealistic to expect any politician to admit major mistakes or point out that he is now advocating policies vastly different from those he pursued while in office. So the second-best way for post-presidential Bush to support free markets is to say as little about the subject as possible. The more the cause is associated with him, the worse off it will be.

1) Justice Thomas. I suspect Justice Thomas is Gura’s only vote.  Justice Thomas more or less took Gura’s position in his dissent in Saenz v. Roe a decade ago. He’s likely on board today.

2) Justice Scalia. In contrast to Justice Thomas, Justice Scalia  probably won’t agree with the Gura brief in light of stare decisis.  In speeches about originalism and stare decisis, Scalia often uses the 14th Amendment incorporation doctrine as an example of a line of cases that he thinks was wrong but that he won’t overrule because of all the reliance interests built up around it over the years.  If Scalia won’t overturn the 50-year old incorporation doctrine even though he thinks it was wrong, I doubt he’ll want to overturn the 116-year old Slaughterhouse Cases even if the brief convinces him they were incorrect.  That’s particularly true because the Gura brief advocates a version of privileges or immunities that is so vague it would vest tremendous new discretion in judges  (more on that below).  I just don’t think Scalia is going to want to do that.

3) Chief Justice Roberts and Justice Alito.  Chief Justice Roberts and Justice Alito are also sympathetic to originalism, and may harbor the sense that Slaughterhouse and the incorporation cases were both wrong as an original matter.  But I don’t think they’re revolutionaries, and the brief calls for a revolution.

To see this, it helps to realize exactly what life the brief aims to breathe into the Privileges or Immunities clause.  At various points in the brief, the brief lists the following new rights that the Fourteenth Amendment should be read to protect beyond what it already protects under the Due Process and Equal Protection clauses:

a) “a broad array of pre-existent natural rights believed secured by all free governments.” (p.10)

b) “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.” (p.17) (quoting Corfield, 6 F. Cas. at 551.)

c) “The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state . . . [and] the elective franchise” (p.17) (quoting Corfield, 6 F. Cas. at 551.)

d) “Natural rights which are those rights common to all men, and to protect which, not to confer, all good governments are instituted.” (p.24) (quoting Bingham)

e) Rights that “are not and cannot be fully defined in their entire extent and precise nature.” (p.25) (quoting Howard)

f) “The right to contract” (p.25) (quoting Rogers).

g) “The natural, fundamental rights, believed to fall under Article IV, Section 2, and the rights codified in the first eight amendments.” (p.26)

Are Chief Justice Roberts and Justice Alito (and Justice Scalia, for that matter) going to want to give the federal judiciary a new power to strike down legislation because it is inconsistent with “natural rights,” including “the right to obtain happiness and safety,” with some of those natural rights undefinable “in their entire extent and precise nature”? I just can’t see that. From their perspective, the Ninth Circuit already makes up lots of stuff as it is. Do you really wanna give them this loosey-goosey undefinable natural rights stuff and let them run free with it? I don’t think so.

I think Roberts and Alito are particularly unlikely to agree with the Privileges or Immunities argument in light of basic judicial restraint principles. The Due Process argument here is pretty straightforward: Heller itself has enough language to make the case that the 2nd Amendment is incorporated under Due Process. It would be a huge break from any traditional concept of judicial minimalism to decide the case by overturning Slaughterhouse.

4) Justice Kennedy. Justice Kennedy is not an originalist, and he basically likes the Court’s existing Due Process jurisprudence. I think he’s a solid vote for incorporation via Due Process, but I don’t see him wanting to change the law in such a radical and far-reaching way under the P or I clause. It’s just not his style.

5) Justices Stevens, Ginsburg, Breyer, and Sotomayor. I suspect the Justices on the more liberal half will read the Gura brief and conclude it’s just trying to resurrect Lochner. The Gura brief envisions a Privileges or Immunities Clause that would include “the right to contract,” the right “to take, hold and dispose of property, either real or personal,” and the right to “an exemption from higher taxes or impositions than are paid by the other citizens of the state.” That sounds like Lochner, which to them is the very epitome of a wrong turn in constitutional law. Plus, they presumably realize that overturning Slaughterhouse is a major goal of libertarian legal activists like the folks at the Institute for Justice who want to resurrect P or I as a way to attack the modern regulatory state. I don’t expect them to help.

You can find a list of the Society’s past shows here; I was also in the same show the next time they produced it, in April 2007. Also, you can find the libretto of the show here.

In the March 1994 production, I played the character of the Major, which is perhaps the smallest part among the male principals. But hey, at least it was a principal.

Who was in the show with me? In the male chorus, playing one of the Heavy Dragoons, was Alan Gura, who represented Heller in D.C. v. Heller, and who’s counsel of record in McDonald v. Chicago, as you can see from the front page of the brief.

Who else was in the show with me? Why, playing the character of the Duke was none other than David Sigale, also McDonald’s lawyer listed on the front page of the brief.

Who else was in the show with me? This isn’t strictly speaking related to the McDonald case, but the character I married in the show, one “Angela,” was played by Alan Gura’s law partner, Laura Possessky.

Have Gilbert & Sullivan otherwise influenced the McDonald case? Well, p. 7 of the brief (p. 25 of the PDF) says that “The Privileges or Immunities Clause was all but erased from the Constitution in The SlaughterHouse Cases.” And, on the next page, it says that “SlaughterHouse’s illegitimacy has long been all-but-universally understood.”

All but!

Surely, this is an echo of the sextet in Patience (see p. 19 of the libretto, i.e. p. 22 of the PDF, here), which I sang together with one of McDonald’s lawyers and the other lawyer’s law partner: “The pain that is all but a pleasure will change / For the pleasure that’s all but pain, / And never, oh never, this heart will range / From that old, old love again!” And MAIDENS embrace OFFICERS. Awww!

Or (see p. 28 of the libretto / p. 31 of the PDF), says Angela, commenting on the Major and the Duke: “Not supremely, perhaps, but oh, so all-but! (To SAPHIR.) Oh, Saphir, are they not quite too all-but?”

Perhaps Gilbert and Sullivan’s influence on the law now extends further than Iolanthe and Trial by Jury!

In my view, it’s a superb brief. It’s worthy of study by law students and anyone else who wants a great example of legal writing that is passionate and forceful, yet also sober and serious.

In the brief’s short discussion of Due Process, attorney Alan Gura aptly writes: “A ‘law’ depriving one of life, liberty or property ‘must not have exceeded the limits of legislative power marked by natural and customary rights.’” (quoting Frederick Gedicks, An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment, 58 Emory L.J. 585, 644–45 (2009).) This is an important point; “substantive due process” may be ill-named, but it is founded on legitimate, originalist doctrine.

Many folks have been wondering why the Gura brief concentrates so heavily on the bolder theory (Privileges or Immunities) rather than the one that courts have used over the last century (Due Process). Here’s the answer: After Heller, the Second Amendment Foundation (SAF) and the National Rifle Association each filed separate lawsuits against the Chicago handgun ban. The cases were consolidated in the Seventh Circuit; after the panel ruled, SAF and NRA each filed separate petitions for certiorari. The Supreme Court granted cert. in the SAF case, McDonald v. Chicago. A few weeks later, the Court added NRA to the case as a party. So NRA is now a “Respondent in Support of Petitioners.” The suburb of Oak Park, which had been sued by NRA but not by SAF, was also added as a party.

So as a party, NRA filed its brief yesterday. The lead attorneys on the brief are Stephen Poss (attorney of record), Stephen Halbrook, and others. The NRA brief takes the more conservative approach. It mainly argues for incorporation via Due Process, with only a brief discussion of Privileges or Immunities. NRA does not ask for any cases to be over-ruled, since Slaughterhouse, Cruikshank, and Presser are all P or I cases, and predate the Court’s recognition of selective Due Process incorporation.

Because the Question Presented by the Court asked about both P or I and Due Process incorporation, it was appropriate that one party brief focused on the former, and the other party brief on the latter.

Amicus briefs (including one I am writing) in support of Petitioners are due Monday, Nov. 23. The Chicago and Oak Park briefs are due Dec. 30, since the Court granted them a two-week extension. Amicus briefs in support of the Chicago and Oak Park handgun bans are due one week after that.

When the amicus briefs start appearing a few days, I will blog about the most important or interesting ones.

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.”

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.

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.

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.

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

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

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

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

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

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

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.

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.

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.