Archive | May, 2013

Joseph Massad Update

Long-time readers will recall the controversy over tenure for Columbia professor Joseph Massad. Massad’s defenders argued that his tenure was only in doubt because pro-Israel forces were out to get him due to his anti-Israel views. I wrote in response, after Massad received tenure

It’s often alleged, as in the Finkelstein case at DePaul, that someone’s anti-Israel views prevent him from getting tenure, or otherwise succeeding in academia. Putting aside the merit of those claims, Massad’s case involves exactly the opposite scenario. He landed at Columbia to begin with as a disciple of leading Palestinian activist and Columbia professor Edward Said. And given not just the quality of his “scholarship,” but his hostility to the international gay rights and feminist movements (which shouldn’t matter for tenure purposes, but who are we kidding?), and his haranguing of a questioner at a university event based on his (Israeli) nationality, it’s hard to imagine a university like Columbia tenuring him if he wasn’t a leading Israel-basher, and therefore was able to pose as both a “progressive” and a martyr to academic freedom.

The latest news with regard to Massad is that he wrote an essay about the history of Zionism and anti-Semitism that was so offensive, so preposterous, such complete and utter bullshit that Al-Jazeera decided it had made a mistake in publishing it and pulled it from its website (it later reinstated the article after being criticized for pulling the piece without explanation). It would take an entire book to correct the foolishness of this particular piece, but if you have some knowledge of Jewish and Israeli history, it’s worth looking at to see how low standards can go at an elite Ivy League university.

As I wrote previously,

The good news is that if Columbia had denied Massad

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Jonathan Rauch’s New Kindle Book, Denial: My 25 Years Without a Soul

My friend Jonathan Rauch, whose writing as well as analysis I’ve long much admired, has a new short Kindle book out, Denial: My 25 Years Without a Soul (sold for only $1.99). Rauch is a visiting scholar at brookings and the author of the more traditional books, including Kindly Inquisitors: The New Attacks on Free Thought (one of the early books criticizing speech restrictions at universities), Government’s End: Why Washington Stopped Working, and Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America; he is also a former columnist for the National Journal and winner of the National Magazine Award, the 2010 National Headliner Award, and the Premio Napoli alla Stampa Estera. A former leading critic of same-sex marriage, David Blankenhorn, reports that his views on the subject were changed in large part by his conversations with Jonathan Rauch. In any event, I thought I’d post an excerpt from Rauch’s book for those who are interested in the subject, and who might consider reading the whole thing:

I have a peculiar memory which must date to when I was 10 or 11 years old. I am sitting at the piano daydreaming one afternoon, and it occurs to me that I will never get married. Simultaneously with this realization comes the recognition that I have always understood that marriage was unlikely for me, and that today is merely the first time I have said so, to myself, “aloud.” So baldly clear is this realization that I might as well be acknowledging that I will never have eight legs and spin a web.

Even so, the revelation strikes me as peculiar. Almost all of the adults I know are married, and so, for that matter, are most of the grown-ups I

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Turkish Blogger Sentenced to 13 Months in Prison for Criticizing Mohammed

Hurriyet Daily News reported last week:

An Istanbul court has sentenced Turkish-Armenian writer Sevan Nişanyan to 58 weeks in prison for an alleged insult to the Prophet Muhammad in a blog post.

The prosecutor had been seeking one and a half years of jail time for Nişanyan on charges of “insulting the religious beliefs held by a section of the society.” …

Nişanyan was convicted of writing, in reference the controversy over the “Innocence of Muslims” video:

Making fun of an Arab leader who claimed he contacted Allah hundreds of years ago and received political, financial and sexual benefits is not hate speech. It is an almost kindergarten-level test of what is called freedom of expression.

Here, according to a site that appears to be Nişanyan’s own, is a statement that Nişanyan made to the court during the trial:

This person named Muhammed has claimed to have established communication with the Maker of the Universe — God forgive my sins — and to have received a book from Her. This, in my conscience and belief, is blasphemy of the worst kind. Yet I do not bring a legal complaint against this person. For everyone has the right to believe in whatever silliness they wish and to take for truth whatever superstition they choose, so long as they do not violate the rights of others.

In consequence of his claim to have established contact with Deity, this Muhammed, who was a lowly merchant, acquired political dominion over all Arabia and gained the financial means to raise 30-thousand-strong armies. Again as a result of his claim to “Prophethood”, we learn from canonical Islamic sources that he acquired a total of at least eleven wives and two unwed concubines. In other words, it is an incontrovertible historical fact that this person made

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Arab Israeli Legislator Proposes Ban on Insults to Mohammed (and Possibly All Cartoons of Mohammed)

Israel Hayom reports:

Arab MK Ibrahim Sarsur (Ra’am-Ta’al) has reintroduced [together with two other legislators from Arab parties] legislation that would lower the threshold for what is considered a racist offense and would ban the publication of materials that disparage the Prophet Muhammad [as well as Moses, Jesus, and various religious scriptures] through a “cartoon, defamation and insult.”

Israeli law apparently already bans “crudely offensive” actions towards a religion or religionists; the bill would remove “crudely” and give specific examples of what is covered, “such as the drawing of the Prophet Muhammad.” Sarsur is quoted as saying, in the bill’s preamble:

The publication of a cartoon that depicts the Prophet Muhammad is highly insulting towards Muslim believers as Islamic law forbids any attempt to draw the prophet or try to portray the image of the Prophet Muhammad, peace be upon him ….

There has recently been a noticeable increase in the attempts to hurt members of various faiths, whether directly or indirectly, including Muslims [including through slurs and “acts that cast a negative light on Islamic symbols.”]

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Yun-chien Chang on Takings Compensation

How much should the government pay to compensate property owners whose land it has condemned? Legal scholars, jurists, and economists have been debating this issue for centuries. The Supreme Court has interpreted the Fifth Amendment’s value requirement of “just compensation” as requiring “fair market value” compensation – roughly the amount of money that the property could be sold for on the open market. Some critics argue that this standard leads to undercompensation, because many people value their property at higher than the market rate; if you valued your house at the market rate or less, you would probably have sold it already. On the other hand, some economists have argued that even fair market value compensation is too high, because it incentivizes property owners to overinvest in land that is likely to be condemned.

Taiwanese legal scholar Yun-Chien Chang’s new book Private Property and Takings Compensation is an excellent analysis of this longstanding debate. Chang does a first-rate job of assessing a wide range of compensation frameworks put forward by both economists and legal academics. Ultimately, he concludes that fair market value compensation is the least bad available approach, but argues that it should be supplemented with additional “bonus” payments, especially in the case of properties with high “subjective value,” such as homes where the residents have lived for a long time. He also brings to bear a wide range of empirical evidence from US and Taiwanese takings, showing that authorities in both countries tend to undercompensate property owners even relative to the fair market value standard, and that compensation policy is likely influenced by interest group lobbing.

I do have a few reservations about Chang’s analysis. For example, I think he should have included a more extensive discussion of what kinds of characteristics of a property should result in [...]

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If That’s the Case for Holder Lying Under Oath, It’s Not Just Weak — It’s Bordering on Silly

My co-blogger Jonathan Adler points out the story reporting that the House Judiciary Committee is investigating whether Eric Holder lied under oath:

The panel is looking at a statement Holder made during a back-and-forth with Rep. Hank Johnson (D-Ga.) about whether the DOJ could prosecute reporters under the Espionage Act of 1917, an aide close to the matter told The Hill.

“In regard to potential prosecution of the press for the disclosure of material — this is not something I’ve ever been involved in, heard of, or would think would be wise policy,” Holder said during the hearing.

However, NBC News reported the following week that Holder personally approved a search warrant that labeled Fox News chief Washington correspondent James Rosen a co-conspirator in a national security leaks case.

The panel is investigating whether NBC’s report contradicts Holder’s claim that he had not looked into or been involved with a possible prosecution of the press in a leaks case.

In his post below, Jonathan explains why he is unpersuaded that Holder lied. I would make the same point more strongly. If that’s really the case for Holder lying under oath, it’s not just weak. It’s so weak it is bordering on silly.

First, let’s look at what Holder said — not only the one sentence, but the question he was asked and the full answer he gave. During the Q&A part of the hearing, Rep. Hank Johnson (D-GA4) made a meandering statement in which he said (among other things) that federal law was problematic because it appeared to make it a crime for reporters to report national security leaks. Here’s the relevant part of Johnson’s comment:

We have an old law that would allow for prosecution of anyone who published the classified information, isn’t that correct? . . . .

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Did Eric Holder Lie to Congress?

The Hill reports that the House Judiciary Committee is investigating whether Attorney General Eric holder lied to Congress when testifying about the Justice Department’s surveillance of reporters and media organizations.

The panel is looking at a statement Holder made during a back-and-forth with Rep. Hank Johnson (D-Ga.) about whether the DOJ could prosecute reporters under the Espionage Act of 1917, an aide close to the matter told The Hill.

“In regard to potential prosecution of the press for the disclosure of material — this is not something I’ve ever been involved in, heard of, or would think would be wise policy,” Holder said during the hearing.

However, NBC News reported the following week that Holder personally approved a search warrant that labeled Fox News chief Washington correspondent James Rosen a co-conspirator in a national security leaks case.

AtlanticWire has the full exchange that prompted the investigation and additional background here.

Now I’m no fan of the Attorney General, and have been critical of the Administration’s decision to target journalists in its leak investigations, but if this is all there is, I don’t see it.  Did Holder suggest he had less involvement in the Rosen case than he, in fact, had.  Sure.  Did he say anything that was untrue or that would justify charging him with lying under oath?  No.  Based on what I’ve seen reported, it’s not even close.

The core of the claim is that the Attorney General’s testimony conflicts with the fact that he signed a warrant application that attested that there was “probable cause to believe that the reporter has committed or is committing a violation of section 793(d), as an aider and abettor and/or co-conspirator, to which the materials relate.”  But there’s no contradiction between Holder’s statement and his reported actions, let alone a [...]

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Is Murder in a State Without the Death Penalty a Mitigating Factor in a Federal Death Penalty Case?

In 2002, Marvin Gabrion was convicted of first-degree murder in federal court for the 1997 killing of Rachel Timmerman. Gabrion had allegedly raped Timmerman and she was scheduled to testify against him in state court days before she and her infant daughter disappeared. Timmerman was bound, gagged, and tossed into a lake where she drowned. The body of her infant daughter was never found. After his conviction, a jury found the presence of multiple aggravating factors and Gabrion was sentenced to death.

As it happened, Gabrion killed Timmerman in a National Forest. This made all the difference, as it made Gabrion’s crime a federal offense. Whereas federal law provides for the death penalty for particularly heinous crimes, Michigan does not. Thus had Gabrion committed his crimes somewhere else – perhaps just a few-hundred feet away – he could have looked forward to a long life in the state penitentiary. Instead he’s on death row.

Gabrion argued that Michigan’s lack of a death penalty should have been considered as a mitigating factor during the penalty phase of his trial. The district court did not, and prevented Gabrion’s defense from introducing any evidence to that effect. A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit voided his death sentence on this basis (among others). Yesterday, however, the full circuit, sitting en banc, went the other way. In United States v. Gabrion the court rejected Gabrion’s claim that the murder’s location in a non-death penalty state is a mitigating factor under the either Eighth Amendment or the Federal Death Penalty Act. The vote was 12-4.

Judge Kethledge wrote the opinion of the court, joined by nine of his colleagues (Batchelder, Boggs, Gibbons, Rogers, Sutton, Cook, McKeague, Griffin, and Donald). Judge Clay, joined by Judge Cole, concurred in the [...]

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Liberals, Free Speech, and “Gruesome Images” of Aborted Fetuses

The Scott v. Saint John’s Church in the Wilderness case (in which I’m representing petitioners pro bono) has been in the news a bit, including both in the New York Times and in the conservative media, and I’ve seen quite a few comments complaining about how “liberals seek to ban photos of aborted children” or how “liberals” are hypocrites on free speech here or how “liberals” are the opponents of plaintiffs’ free speech rights.

But this strikes me as a vast oversimplification. For instance, when the Colorado Supreme Court refused to consider the speakers’ petition for review, two Justices — the conservative Allison Eid and the liberal Michael Bender — voted to hear the case. To answer one of the commenters at National Review Online, who asked “Where are you liberal first amenders anyway?,” Chief Justice Bender was there with Justice Eid. I’m not sure quite how the other Justices are best categorized, but at least one of the conservatives (Justice Coats) voted not to hear the case; the third Justice who I hear described as conservative, Justice Rice, did not participate. [UPDATE:] And the decisions from other courts stating that the First Amendment protected the public display of aborted fetuses, and that the desire to shield children from the images didn’t justify restricting the images, came mostly from liberal judges — Center for Bio-Ethical Reform, Inc. v. Los Angeles County Sheriff Dept. (9th Cir. 2008), was written by arch-liberal Judge Pregerson and joined by liberal Judges Fletcher and Berzon, and Center for Bio-Ethical Reform v. City of Springboro (6th Cir. 2007), was written by Clinton appointee Judge Clay and joined by Clinton appointee Judge Moore and Reagan appointee Judge Bell (a district court judge sitting by designation).

And as to “liberal first amenders” more broadly, [...]

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Assessing the Case Against Gay Marriage

Northwestern University Law Professor Andrew Koppelman recently posted an excellent article assessing recent arguments against gay marriage put forward by leading anti-gay marriage legal scholars and political philosophers. Here is the abstract:

The case for same-sex marriage has been politically triumphant, and its victory looks inevitable. It nonetheless is curiously incomplete. It has succeeded, not because the most sophisticated opposing arguments have been considered and rejected, but because those arguments have not even been understood. Those arguments rest on complex claims, either about what sustains the stability of heterosexual marriages or about what those marriages essentially are. The most familiar claim, that recognition of same-sex marriage jeopardizes the heterosexual family, demands an account of the transformation of family norms in the past half century. Major social change should not be undertaken without a full awareness of what is at stake.

This essay remedies a major gap in the literature. It critically surveys and evaluates the arguments against same-sex marriage. You may not be persuaded by them. In fact, you shouldn’t be persuaded by them. But you need to know what they are.

Koppelman and I are at odds on a wide range of other political and constitutional issues. But I think he’s mostly on target here. As he explains, arguments against gay marriage that do not reduce to simple anti-gay bigotry can be divided into two categories: Claims that gay marriage (and possibly gay sex) is inherently wrong, and claims that it has negative social consequences, such as undermining heterosexual marriage or harming children. The first category of arguments is largely question-begging and incoherent, for reasons Koppelman outlines well. For example, some advocates claim that marriage (and perhaps sex) are only morally defensible if they take a procreative form, but then somehow try to stretch that concept to include relationships [...]

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The Sixth Circuit Wins One

The U.S. Court of Appeals for the Sixth Circuit has had quite a losing streak in the Supreme Court.  For the past few years, on over twenty straight cases, the Supreme court has reversed the Sixth Circuit decision in every case in which the Court accepted cert.  The lion’s share of these cases concerned grants of habeas petitions to convicted criminals in which the Supreme Court found that the Sixth Circuit had been too quick to grant relief, suggesting at least some of the Sixth Circuit’s judges are out of step with the Supreme Court on habeas questions.

Yesterday, however, the Sixth Circuit’s cold snap ended – more or less – and in a habeas case, no less.  In McQuiggin v. Perkins, the Supreme Court agreed with the Sixth Circuit that the district court was wrong to reject a habeas petitioner’s claim of actual innocence made after the expiration of the one-year statute of limitations established under the Anti-Terrorism and Effective Death Penalty Act (AEDPA).  It wasn’t a resounding victory, as the Court split 5-4 (Kennedy and the liberals in the majority) and Justice Ginsburg’s opinion still found fault with Sixth Circuit’s analysis, vacated the court’s opinion, and left open the possibility that the habeas petitioner’s claim will ultimately fail.  Nonetheless, for the first time in quite awhile, the Supreme Court granted certiorari in a habeas case from the Sixth Circuit and did not rule for the state. [...]

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Penalties for Underperforming Politicians

Law professor Glenn Reynolds (AKA Instapundit) has an interesting column in USA Today advocating that we increase penalties for politicians who do a poor job in office:

As scandals explode across Washington… one thing that I’ve noticed is that the people involved don’t seem to suffer much….

Government officials are happy making and executing plans that affect the lives of millions, but when things go wrong, well … they’re willing to accept the responsibility, but they’re not willing to take the blame. What’s the difference? People who are to blame lose their jobs. People who are “responsible,” do not…

Given the low penalties for failure it faces, our political class is one for whom falling down is usually painless and even — given the surprisingly common tendency of people who have presided over debacles to be given promotions rather than the boot — actually pleasurable….

The problem is that they don’t have, in President Obama’s words, “skin in the game.” When it comes to actual wrongdoing, they’re shielded by doctrines of “absolute immunity” (for the president) and “qualified immunity” (for lesser officials). This means that the president can’t be sued for anything he does as president, while lower-ranking officials can’t be sued so long as they can show that they were acting in a “good faith” belief that they were following the law.

Such defenses aren’t available to the rest of us. And they’re not even the product of legislation passed by Congress after considered judgment — they’re judicially created….

Reynolds proposes that we eliminate judicially created immunity doctrines and impose tougher penalties on failed political leaders:

I’d favor some changes that put accountability back in. First, I’d get rid of judicially created immunities….

I’d also cut all payments to members of Congress whenever they haven’t passed a budget. If

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Noel Canning Recess Appointments Case — Amici Weigh In

NLRB v. Noel Canning, 12-1281, the case seeking Supreme Court review of the validity of President Obama’s 2012 recess appointments to the NLRB, is now on a glide path for a June Conference (setting up a decision whether to hear the case before the Justices go into recess).  Amici are now weighing in on whether, and on what terms, the Court ought to consider the case.

Amicus briefs supporting respondent are unusual at the cert. stage, because they tend to highlight the importance of a case and thus can be counterproductive to respondents trying to avoid Supreme Court review.  But there is nothing untoward about them where, as here, respondent affirmatively seeks cert.

Yesterday, Senate Republican Leader Mitch McConnell and 44 other Republican Senators (i.e., every Republican Senator) filed this brief supporting cert.  (This group participated in briefing and argument before the D.C. Circuit.)  Unsurprisingly, the brief focuses on the Senate’s constitutional role in appointments.  It supports Noel Canning’s effort (discussed here) to have the Court consider the additional question whether the President may make recess appointments even while the Senate is convening every three days in pro forma sessions.  It argues that the President lacks authority to second-guess the Senate’s determination that it remained in session, arguing that the Senate was available throughout to consider nominations by unanimous consent (as demonstrated by its passage of legislation during this time).

The brief also argues that cert. is “appropriate given the Executive’s ongoing defiance of the decision below and its inevitable at tempts to evade that ruling in the future,” noting that the NLRB “has publicly declared, with the Executive’s explicit blessing, that the decision below ‘applies to only one specific case’ and has no bearing on the Board’s ability to act in others.”  McConnell [...]

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Quantum of Proof in University Sexual Assault Investigations

When a university is deciding whether to expel, suspend, or otherwise discipline a student for an alleged sexual assault, how much proof should the university proceeding require? Should the student’s guilt be shown by “clear and convincing evidence”? By a “preponderance of the evidence,” which is what the Department of Education’s Office for Civil Rights has demanded, under its interpretation of Title IX? Beyond a reasonable doubt? I’m inclined to say — contrary to quite a few people whose judgment I generally much respect — that preponderance of the evidence would likely be the right standard, at least for claims of sexual assault and not just offensive words. Let me briefly explain why.

First, let’s think of preponderance of the evidence, clear and convincing evidence, and proof beyond a reasonable doubt as probability thresholds. Preponderance of the evidence means that the university should expel or discipline the accused student if there’s just a bit more than a 50% chance that the student is guilty. Clear and convincing evidence might be seen as requiring a 75% or 80% probability, or thereabouts. Proof beyond a reasonable doubt might be seen as requiring a 95% probability. These are oversimplifications, to be sure, but they are probably the most helpful way of looking at these standards.

And each of these probabilities might correspond to a number n in the statement that “better that n students guilty of sexual assault remain at the university, with no discipline imposed, than one innocent student be expelled or otherwise disciplined.” Proof beyond a reasonable doubt would be something like “better that ten students who have committed sexual assault remain at the university unpunished than one innocent student be expelled.” Proof by clear and convincing evidence would be something like “better that three guilty students (but no more) remain [...]

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