Tuesday, December 7, 2004

This May Just Be A Legend,

but if so, it's a pretty good legend. (Link: CrimLaw)

Iraqi Elections Delayed to Allow Time for Negative Ads:

The Borowitz Report has the scoop.

The Twenty-First Amendment Wine Shipment Case:

Dahlia Lithwick (Slate) has a funny, readable, and interesting report of the oral argument.

Prude fact of the day:

In an appearance before Congress in February, when the controversy over Janet Jackson's Super Bowl moment was at its height, Federal Communications Commission chairman Michael Powell laid some startling statistics on U.S. senators.

The number of indecency complaints had soared dramatically to more than 240,000 in the previous year, Powell said. The figure was up from roughly 14,000 in 2002, and from fewer than 350 in each of the two previous years. There was, Powell said, "a dramatic rise in public concern and outrage about what is being broadcast into their homes."

What Powell did not reveal—apparently because he was unaware—was the source of the complaints. According to a new FCC estimate obtained by Mediaweek, nearly all indecency complaints in 2003—99.8 percent—were filed by the Parents Television Council, an activist group.

This year, the trend has continued, and perhaps intensified.

Through early October, 99.9 percent of indecency complaints—aside from those concerning the Janet Jackson "wardrobe malfunction" during the Super Bowl halftime show broadcast on CBS— were brought by the PTC, according to the FCC analysis dated Oct. 1.

Here is the full story.

Anti-French "Racism" A French intellectual reviews of "Our Oldest Enemy: A History of America's Disastrous Relationship with France," by John Miller and Matt Molesky for the New York Times and (translated from the original French) accuses the authors of "racism":
[t]he whole book is a mad charge (whose only equivalent I know is the fascist French literature of the 30's) against a diabolical nation, the incarnation of evil, bearing in the body and soul of its citizens the stigmata of an ill will the only aim of which throughout the centuries has been the humiliation of America the great.

This manner of trapping the entire culture of a country inside a caricature presented as eternal and characteristic has a name: essentialism. Pushed to such an extreme degree, and culminating in the profound question that ponders if ''the French, in short, will continue to be the French,'' essentialism is another name for a temptation to which it is surprising to see such apparently respectable minds succumb: racism.

The fact is, yes, there is a kind of racism in dragging out as evidence a text by Mark Twain that contains, we are told, ''more than a little truth'' and according to which ''the race consists of human beings and the French.'' Go ahead, these careful readers of ''Tom Sawyer'' urge, ''scratch a Frenchman'' and you will discover ''a savage'' if it's a man, a ''harlot'' if it's a woman — a brutishness, in any case, ''unknown in civilized lands''!

France and America deserve better than this opposition of two apparently antithetical but actually perfectly symmetrical lunacies.
Miller and Molesky respond here.

Note: The link to the NYT review should be working now. Also, here's a link to the introduction to the Miller & Molesky book.

Every election can be unanimous,

if you just focus on the right denominator. My former student Kevan Choset points to this AP item, on the MSNBC site:

Although "Titanic" soared at the box office in 1997, according to a recent survey, it's most memorable line -- "I'm the king of the world!" -- sunk..

British baker Warburtons posed the question "What are your top three cheesiest moments in film?" to 2,000 U.K. moviegoers in celebration of the launch of their new cheese flavored crumpets. . . .

Warburtons reports that surveyed women opted for romantic comedy moments from films such as "Notting Hill" and "Jerry Maguire" while men preferred silly scenes from action flicks like "Top Gun" and "Braveheart." Despite the gender divide, 33 percent of the overall vote unanimously agreed on the "Titanic" yell as the cheesiest moment.

CNN did better; I take it they noticed the error.

Prestopundit on Left2Right:

Commenting on the new blog Left2Right (see below), Prestopundit has an assignment for progressive intellectuals trying to understand the conservative mind: read some Hayek.

If leftist and independent academics want to engage non-leftists, they might consider engaging the ideas that non-leftists take seriously. It's hard to find a conservative who isn't massively influenced by the writings of Friedrich Hayek.

Pretty good advice. At the same time, it's not entirely clear that the goal of Left2Right is to engage conservative or libertarian ideas. Based on the blog's mission statement, my sense is that the goal is to understand why so many people voted for Bush, and to use those insights to help the next Democratic candidate win Ohio and Florida in 2008.

More on Yesterday' s Bushism of the Day:

I e-mailed Jacob Weisberg to ask what he thought was Bushist about yesterday's Bushism of the Day, and he graciously responded:

The White House transcript didn't have "to." Hard to know what he actually said, but I'll switch to the Post version to make it more readable. In any case, that is not the joke. I define Bushisms as things Bush says that are funny for whatever reason, not merely mistakes.

Hmm -- that's not how I had understood the series. Here's the start of the Introduction from Weisberg's Bushisms book:

The question I am most frequently asked about the Bushisms series is, "Do you really think the President of the United States is dumb?"

The short answer is yes.

The long answer is yes and no.

Dipping into this volume may leave the impression that George W. Bush is a simple dimwit. . . . If you don't care to pursue the matter any further, that view will serve. . . .

In reality, however, there's more to it. The assemblage of a presidential term's worth of malapropisms, solecisms, gaffes, spoonerisms, and truisms -- drawn together here from the best of Bushisms old and new -- tends to imply that Bush's lack of fluency in English is tantamount to an absence of intelligence. But as we all know from experience, the inarticulate can be shrewd, the fluent fatuous. In Bush's case, the symptoms indicate a specific malady -- some kind of language-skill deficit akin to dyslexia -- that does not indicate a lack of mental capacity per se. . . .

But perhaps the Bushisms column has a broader mandate than the Bushisms book, or both are meant to be a mix not just of "malapropisms, solecisms, gaffes, spoonerisms, and truisms" -- which are either mistakes (the first four) or vacuousness, which one might think of as a substantive mistake -- but also just things that are "funny for whatever reason."

Still, isn't this line funny largely because it is taken out of context? Would it really be that funny if read with the surrounding lines, as I quote them above, and understanding that it was a response to a question about beef import policy?

And in any event, might it not be better for the Bushisms column to include links to the transcripts, so that readers can see for themselves what the context might be (especially if they assume that most Bushisms are indeed "malapropisms, solecisms, gaffes, spoonerisms, and truisms" rather than just "funny for whatever reason")?

Legal Affairs Debate Club about the Journalist's Privilege:

A very interesting exchange, between columnist Paul McMasters (of the First Amendment Center) and U Chicago lawprof and First Amendment maven Geoffrey Stone.

Bring Out Your Feedback: Are you happy with the Volokh Conspiracy? Annoyed with it? Is there something you want to see more of? Less of? Tell us all about it. Although the VC doesn't normally allow comments, I tend to like them. So I am opening up comments for this post to give you a chance to give us your 2 cents. Anonymous is okay, but any abusive, mean, or rude comments will be deleted. Comment away.

  UPDATE: Sorry for the technical problems. I'm working on them, although I don't know if I'll be able to fix them.

The Wall Street Journal opines on the wine cases today.

Left2Right Blog:

A large and very distinguished group of professors have started a new group blog, Left2Right, with the goal of trying to understand Red America. Hint: It's not all like this. I assume Left2Right will be followed shortly by Right2Left, in which bloggers from Red America try to understand very distinguished professors? Seriously, though, it looks interesting. Thanks to Brian Weatherson for the link.

Monday, December 6, 2004

Bushism of the Day:

In today's Slate:

"I believe that, as quickly as possible, young cows ought to be allowed go across our border." — Ottawa, Nov. 30, 2004

Now this one just puzzles me. Here's the relevant excerpt from the transcript. Bush was apparently responding to a question about the importation of beef from Canada to the U.S. (I can't quote the question, because it isn't included in the transcript, presumably because it's in French):

Look, the prime minister has expressed a great deal of frustration that the issue hadn't been resolved yet. And I can understand his level of frustration. There's a series of regulations that are required by U.S. law, and the latest step has been that the Agriculture Department sent over some proposed regulations to handle this issue to what's called the Office of Management and Budget. It's a part of my office.

I have sent word over that they need to expedite that request as quickly as possible.

I fully understand the cattle business. I understand the pressures placed upon Canadian ranchers. I believe that, as quickly as possible, young cows ought to be allowed to go across our border. I understand the integrated nature of the cattle business, and I hope we can get this issue solved as quickly as possible. . . .

What's "Bushist" about this? Is it that "young cows" sounds odd? Apparently it's a common industry term (see, e.g., "Management of Young Cows for Maximum Reproductive Performance," noted on a USDA site). Is it that it sounds stilted to talk about allowing the cows to go over the border, as if it's the cows' desire? But this is a pretty standard locution — speaking of goods going places, rather than people shipping goods places — and in context I doubt that it sounded at all odd.

Or is it the omission of the "to" before the "go across the border"? The Washington Post transcript quotes Bush as saying "to go across the border," as do the other sources I've checked. [UPDATE: Reader Russell Steinthal points out that Slate has since inserted the "to," though it was omitted when the item originally went up.]

And why does Slate, an online publication that has long tried hard to take advantage of its online format, persist in failing to providing links to sources that it quotes? Wouldn't it be good if readers could see for themselves how the quote looks in context?

[NOTE: I added the "Or is it" paragraph after this post was originally posted.]


Jd2b.com mentions a new anonymous law prof blog, or rather, a fictional anonymous law prof blog, titled, appropriately, Anonymous Law Professor. The genre of anonymous blogs purporting to be by law profs is fairly new; as best I can recall, the only other attempt was the glorious but short-lived Proculian Meditations.


Tomorrow, of course, is oral argument in the wine cases. In thinking of how the cases will come out (and hence what ot look for in oral argument), the test is always to try to figure out how 5 votes line up one way or the other. It seems to me that in trying to put oneself in the shoes of the various justices, it seems like the nondiscrimination position should win. It seems like it lines up like this:

Scalia and Thomas: Traditionally strong proponents of the antidiscrimination prong of the dormant commerce clause, I think that they will strike down this blatant protectionism. Scalia already articulated in Healy his position that discrimination removes a state law of the protection of the 21st Amendment. I also believe that Scalia and Thomas will be willing to do the hard work necessary to dig into the original meaning of the 21st Amendment, and to recognize that the full ratification history reveals the 21st Amendment to be an effort to restore the constitutional balance interrupted by the 18th Amendment, and to withdraw the federal government from the disastrous meddling in local police power affairs as it did under the 18th Amendment's national prohibition regime. I discuss the ratification history of the 21st Amendment in my Wine Wars essays (which are available here) on pages 9-24 Thus, the 21st Amendment restored the local government to its local police power control and the federal government to its role as regulator of interstate commerce, and perpetuated the longstanding limit on the police power that it could not be used to enact discriminatory regulations. Moreover, given the unqualified language of the 21st Amendment, there is no plain language reading that would enable the Court to apply the 21st Amendment to the dormant Commerce Clause, but not the Commerce Clause, Export-Import Clause, 1st Amendment, Equal Protection Clause, and Due Process Clause, as it has already done previously. Once it is recognized that the 21st Amendment contains no exception for these provisions, it becomes impossible to simply apply the plain language.

Breyer: Seems like a clear vote for those challenging the laws. He should understand the policy arguments as articulated in the FTC Report and elsewhere, and will see through the flimsy regulatory arguments advanced by the states.

Kennedy and Souter: Maybe the best predictor of Kennedy and Souter's votes is the pure absurdity of the state's position. Because the state's position essentially boils down to its view that it can do whatever it wants when it comes to alcohol, one suspects that Kennedy and Souter will be discouraged on pragmatic grounds from endorsing such an extreme position. My impression is that Kennedy is responsive to simple pragmatism and common sense, and this case, pragmatism and common sense is contrary to the state's position. After all, it is difficult to see why it is essential for New York to prohibit out-of-state shipment of wine when 190 in-state wineries are already shipping directly to consumers and the Republic has not collapsed. Perhaps Ginsburg falls in this camp as well.

O'Connor, Rehnquist, Stevens: O'Connor seems wedded to her misunderstanding of the legislative history of the 21st Amendment. On the other hand, her announcement of this position in 324 Liquor Corp. appears to have come unprompted by the briefs or parties in the case, so perhaps she will be willing to revisit the legislative history she relies on there. I have discussed in detail the legislative history sources she relies on and why they do not support her position, on pages 24-34 of my initial Wine Wars essay, which can be found here. As I show there, she has removed her legislative history excerpts from their proper historical and legislative context, thereby getting them exactly backward. Rehnquist and Stevens seem to have followed O'Connor on most of these matters.

By my calculation, therefore, it is hard to see how the states get beyond their 3 hard-core supporters, assuming the states actually keep all of them on board. Indeed, given O'Connor's position that the legislative history on the 21st Amendment matters a lot, it seems like an appropriate time for her to reconsider the 21st Amendment in light of the full range of legislative history that she ignored in her earlier opinions in alcohol cases.

The bottom line is that the 21st Amendment was designed to repeal the 18th Amendment and to remove the federal government from meddling in local police power affairs and to protect dry states from the possible repeal or overturn of the Webb-Kenyon Act. There is nothing to indicate that it was designed to give a novel and unnecessary power to the state governments to erect protectionist barriers to interstate commerce or to allow wet states to engage in economic warfare with the products of other wet states. It rectified the Supreme Court's dormant Commerce Clause jurisprudence under the "original package" doctrine which had created a peculiar discrimination in favor of out-of-state alcohol, but certainly did not intend to respond to this by creating a new power of the states to disriminate against out-of-state alcohol.

Finally, note the difficulty of protectionist position in counting to 5 Justices. I can only see three different ways for that position to prevail, none of which are particularly appetizing beyond O'Connor, Rehquist, and Stevens.

First, they could try to apply the plain language, holding that the 21st Amendment gives the states plenary power over alcohol. But given the unqualified language of the 21st Amendment, that position would imply that the state could prohibit only black people from importing wine, or prohibiting only imports of Kosher wine. That does not seem like a position the Supreme Court wants to take. Alternatively, the Supreme Court could interpret the language more narrowly then it is written, and apply it only to the dormant Commerce Clause--but then, of course, it would no longer be a plain language argument.

Second, they could hold that there was no discrimination in this case because of New York's physical presence requirement. But that would seem to be unlimited in principle as well, and would imply that the same regulations would apply with equal force to Amazon.com and LLBean, requiring a physical presence for the sale of any goods. It is hard to see why the 21st Amendment would change the analysis of whether the laws are discriminatory, as opposed to the question of whether the 21st Amendment saves discriminatory laws that would be unconstitutional for any other product.

Third, the court could simply bless these blatantly discriminatory regulatory regimes. But that holding would undermine the bedrock principle of nondiscrimination which was one of the primary purposes for the creation of the Constitution in the first place. This may be the narrowest position, but unless very narrowly drafted, any ruling on these grounds would seem to invite efforts to erect discriminatory regulations to other products. I honestly don't see a very attractive mechanism for this Court to uphold these regulations, especially given the nonexistent policy arguments that have been made to support them, and the overwhelming empirical and policy arguments on the other side.

Posner on Preventive War:

Richard Posner's first post on his new blog is now up, and everybody seems to be linking to it, so I guess I will, too. It's not exactly earth-shattering stuff this week. Posner points out that from a state's perspective, the cost-benefit analysis of a preemptive war may justify a preventive war even when the threat is not imminent. If your enemy is weak today but may be strong next week, and you have reason to reason to believe that a strong enemy will try to attack you, it may be in your interest to attack him now rather than wait to have your butt kicked next week. I don't think anyone can contest this, although I am sure some would contest the premise: should the rules governing preventive war be based solely on what is in the interest of the state doing the attacking? In any event, welcome to the blogosphere, Judge Posner.

Privilege for Me But Not For Thee:

The New York Sun contains an interesting article on the role of blogs in arguments about whether courts should recognize a reporter's privilege. Among other things, it presents an interesting example of how the practical implications of legal rules shape whether judges will adopt them. The lawyers for the media groups want to define a narrow group of "real journalists" who should receive the benefits of the privilege. They want to distinguish journalists from mere bloggers, thinking that, in the words of Floyd Abrams, "If everybody's entitled to the privilege, nobody will get it." (Link: Howard, of course.)

  UPDATE: You can find more on Abrams' position here.
New Supreme Court Government Employee Speech Decision:

Marty Lederman (SCOTUSblog) blogs about it.

Lots of Interesting Posts

up right now at CrimProf Blog.

Audio of Supreme Court Justices Explaining Their Own Opinions: I was listening to NPR this morning, enjoying Nina Totenberg's preview of today's argument in Miller-El v. Dretke, when I was rather startled to hear the voice of Justice Kennedy explaining his own 2003 opinion from an earlier round of the case, Miller-El v. Cockrell. Supreme Court Justices don't go on NPR to explain their prior decisions, so I wondered where Totenberg could have found the audio of AMK explaining his opinion. A minute or so later, a google search confirmed my suspicion: the very cool Oyez.org site that has the audio of Supreme Court oral arguments available on-line also has the Justices' bench statements. You can listen to Justice Kennedy's complete summary of Miller-El v. Cockrell here.

  Bench statements are brief summaries of opinions read by the Justices from the bench the morning that an opinion is released. They tend to be informal, at least compared to written opinions. Bench statements are read in open court to an audience that has no idea what cases (if any) will be released that morning, so they are addressed to generalists. More importantly, bench statements tend to focus on the core of the opinion's argument, making them an interesting resource for students and historians alike who may want to get a better idea of what an opinion means. Plus, it's just kind of cool to hear Supreme Court Justices explain their opinions at the very moment that they are released.

  Oyez doesn't have every bench statement available, at least yet, but there are lots of interesting cases available so far. For example, I had heard a lot about the courtroom atmosphere when Justice Kennedy and Justice Scalia announced the majority and dissenting views in Lawrence v. Texas. You can listen to both here.
Chemerinsky's Changed Tune on Filibusters In yesterday's L.A. Times, law professors Erwin Chemerinsky (Duke) and Michael Gerhardt (William & Mary) argue against Republican proposals to eliminate the availability of filibusters for judicial nominations. This so-called "nuclear option," Chemerinsky and Gerhardt write, would be "a cynical exercise of raw power and not based on constitutional principle or precedent." Elimination of the filibuster "would transform the Senate into a rubber stamp."

That's what Chemerinsky says now. But in 1997 -- when there was a Democratic President who found some of his nominees slowed by a Republican Senate -- Chemerinsky sang a different tune. As Patrick Frey documents here, Chemerinsky co-authored a 1997 law review article taking a quite different stance.
The modern filibuster . . . has little to do with deliberation and even less to do with debate. The modern filibuster is simply a minority veto, and a powerful one at that. It is not part of a long Senate tradition and history alone cannot justify it.
Indeed, in 1997 Chemerinsky appeared to endorse the view that Senate Rule XXII, which purports to require a two-thirds vote to change the filibuster requirement, is unconstitutional.

Related Posts (on one page):

  1. Chemerinsky's Not Alone:
  2. Chemerinsky's Changed Tune on Filibusters
Basketbrawl Update: There will be an arbitration hearing this week to review NBA Commissioner David Stern's suspensions of Indiana Pacers players involved in the Nov. 19 brawl in Detroit. The NBA contends that there is no legal basis for the hearing, however, and has apparently filed suit in federal district court to prevent a negative arbitration ruling. See also here.

Meanwhile, kudos to the Detroit Pistons organization for taking swift action against fans identified as hooligans, barring two season-ticket holders from the arena indefinitely. Local prosecutors are also getting ready to bring charges. One of those who may be in trouble is Piston center Ben Wallace's brother.

Taxes that Aren't Paid by Taxpayers? A story in today's New York Times about the federal Superfund progra observes: "Since 1995, when Congress did not renew a special tax on polluters, the cleanup money has come entirely from taxpayers." Huh? The money in Superfund always came from "taxpayers" — that is, it has always come from those paying taxes. One might have thought the Times editors would have caught a line discussing taxes that are not paid by taxpayers.

What the article clearly meant to say is that since the special Superfund tax has expired, the program has been funded out of general revenues (though the program does receive funds through cleanup cost recovery as well). Either way, "taxpayers" are footing the bill. The question is whether the cleanup money will come from taxpayers generally, or those who are assessed a special tax on chemical feedstocks. But these latter folks are "taxpayers" too — as they are paying taxes.

The Times also errs in calling it a "tax on polluters." The Superfund tax was nothing of the kind. It was a tax on chemical feedstocks, not on pollution — and it taxed polluters and non-polluters alike. A company's tax liability was a function of the volume of taxed substances it used, not the amount of pollution it caused. Thus, a company that used high volumes of taxed substances, but had an exemplary environmental record would pay more than a company that (mis)used far less material and caused more environmental harm. Thus, despite its billing, the Superfund tax was never a "polluter pays" program.

Update: The tax experts at Roth & Company note that the other part of the "Superfund tax" that expired was an across the board tax on corporate Alternative Minimum Tax income in excess of $2 million. As they observe, "Banks, insurance companies and (horrors!) accounting firms were subject to the same 'superfund tax' as lead refiners and cyanide makers." Note the implications: To some environmentalists (and, apparently, some at the Times) a tax on corporate profits is a tax on "polluters."
Artists and the Internet:

A very interesting report from the Pew Internet & American Life Project.

Justice Delayed: Today's New York Times contains a troubling article about Judge George Daniels of the Southern District of New York, who the Times reports is the "unchallenged king of delayed decisions." (Link: Howard) Acccording to the Times, Judge Daniels "had 289 motions in civil cases pending for more than six months, by far the highest total of any federal judge in the nation."
For some plaintiffs, the waits have seemed like forever.
  There was the woman in Queens who had to fend off creditors while she waited more than three years for the judge to decide that she was entitled to her late ex-husband's pension benefits. And there was the prisoner with H.I.V. who filed a petition challenging his state court conviction. By the time Judge Daniels got around to issuing an order - three years later - the prisoner had died.
  . . .
  Court records and interviews show that in at least eight cases, including Mrs. Adams's, people were so frustrated by Judge Daniels's slow pace that they went over his head. They filed petitions with the United States Court of Appeals for the Second Circuit asking that it order Judge Daniels to rule or perhaps transfer their cases to another judge.
  Typically, shortly after the petitions were filed in the higher court, Judge Daniels did rule.
  Who is Judge Daniels? You can check out his bio here.

  UPDATE: A VC reader writes in to note a possible explanation for the delay. When a new federal trial judge takes the bench, it is common for other active judges (and semi-retired judges) to dump complicated and difficult cases that they don't want on the new judge's docket. New judges get the usual run of new cases, plus a backlog of old cases that no one else wanted. I don't know the details of whether this happened in Judge Daniels' case, but the newbie backlog may explain some of the delay.

Sunday, December 5, 2004

That's A Great Picture of You:

When you tell someone that a photograph of them is particularly great, aren't you really saying that actually they don't look that good?

News Reports and Objectivity: Daniel Okrent reprints a telling comment about how newspapers report the news, attributed to veteran New York Times editor Lester Markel:
  The reporter, the most objective reporter, collects fifty facts. Out of the fifty he selects twelve to include in his story (there is such a thing as space limitation). Thus he discards thirty-eight. This is Judgment Number One.
  Then the reporter or editor decides which of the facts shall be the first paragraph of the story, thus emphasizing one fact above the other eleven. This is Judgment Number Two.
  Then the editor decides whether the story shall be placed on Page One or Page Twelve; on Page One it will command many times the attention it would on Page Twelve. This is Judgment Number Three.
  This so-called factual presentation is thus subjected to three judgments, all of them most humanly and most ungodly made.
Fallujah in Pictures: The Washington Post has a story today about the blog Fallujah in Pictures. According to the Post, the blog's reproduction of photographs from Iraq seen widely in the Muslim world but not reprinted in U.S. papers demonstrates "how the might of the U.S. military can be matched by a single blogger working part time."
  In the version of the Web site that was up last week, the first image on the site showed a malnourished Iraqi baby, wide-eyed and screaming in pain, under the sarcastic headline, "another grateful Iraqi civilian."
  Many of the photographs are far more graphic than are usually carried in newspapers, showing headless bodies, bloodied troops, wounded women, and bandaged babies missing limbs. One added recently shows a U.S. soldier with part of his face blown away by a bomb.
  The blog also amounts to a critique of the U.S. news media. Another section of the site, under the headline, "Also not in today's news," shows a photograph of a Marine propped against a concrete wall, grimacing as he is treated for a shrapnel wound in his upper right leg.

Saturday, December 4, 2004

Steve Martin

sets the record straight.

Freedom of the press = Freedom to publish.--

I finally got around to reading Eugene's NY Times op-ed and the odd response to it by Terence Blacker in the Independent (see Eugene's post on this).

I am not an expert on the First Amendment (as Eugene is). But I found the Independent's argument unpersuasive and questionable in a way that suggests why people need to look beyond mainstream sources such as the Independent to figure out the merits and scope of any First Amendment prvilege.

Terence Blacker in the Independent:

It was unsurprising to read in The New York Times this week an article by a man with a successful weblog in which he argued that we are all journalists now, that privilege under the law should apply to the humblest blogger as it does to someone working for the national media.

What some people seem to forget is that "the press" is only a metaphor for journalism. By giving freedom of the press as well as freedom of speech, the probable "intent" of the framers of the First Amendment and their probable "public meaning" was to recognize the freedom to publish without prior restraint and with broad (though not absolute) protection against later suit or punishment. If I'm right, then the "press" phrase of the First Amendment doesn't give more rights to journalists than to any other profession or sort of people who publish. It provides protection for whoever uses a publishing press, not a protection for a profession, like journalism. (To the extent that any states deviate from this basic First Amendment approach by privileging journalists only, they are acting unwisely in my opinion and contrary to the idea of the First Amendment.)

If we can now publish online for marginal costs that approach zero, then we all share in that freedom of the press (i.e., the freedom to publish). It is the technology that leads to egalitarianism, not the first amendment theory, which in my opinion has always protected publishers, at least non-obscene ones.

Scott Burgess also has some comments.

Take Winston Churchill, perhaps the greatest public figure of the 20th century. A Winston Churchill, writing extensively in his bathtub (as he often did), should receive no more protection from the First Amendment than political or academic bloggers writing in their pajamas or in their bathrooms, as recent critics of blogs have pejoratively asserted.

Of course, Eugene and I are not Churchills, but then neither is Mr. Blacker.

Related Posts (on one page):

  1. Freedom of the press = Freedom to publish.--
  2. Volokh the Crazed Egalitarian:
  3. My Thoughts on a Journalist's Privilege,
Bubble Wrap:

Are you stressed out? This site may provide the relief you need. (Don't miss the manic mode.)

Using Evidence Obtained by Torture at Gitmo?: Over at Crooked Timber, Kieran is looking for an explanation of statements by Justice Department official Brian Boyle at a recent court hearing about the use of evidence obtained by torture. The press accounts I have seen suggest that the military is fine with using evidence obtained by torture against the Guantanamo detainees. Kieran suggests that this is "the latest effort by legal officials of the U.S. Government to get Americans to agree that the use of torture by the military is no big deal."

  I have some very tentative thoughts that might provide a bit of context. Not justification, mind you, but context. I make these points with some important caveats: I am no expert in the law surrounding torture, international law, or military law, and I haven't been following this case closely. If someone with more knowledge in this area sees an error, I would be delighted to post a correction. Still, my hope is that I can explain the picture a bit better than press reports have done.

  First, the law. No one actually knows what kind of U.S. constitutional rights the detainees at Guantanamo have, or, to the extent that there may be other sources of rights for them such as the Geneva Convention, whether those rights are binding in federal court. We know from the Supreme Court's decision last summer in Rasul v. Bush that the federal courts have jurisdiction to consider the question, but we just don't know what the answer is. Why is that? It's because there are surprisingly few opinions on the constitutional rights of non-citizen detainees outside the United States as a general matter, and those opinions that shed any light at all on the issue here — cases that plausibly might include United States v. Verdugo-Urquidez, Reid v. Covert, and Johnson v. Eisentrager — are generally too splintered, unsatisfying, factually different, and (in some cases) too dated to tell us a lot. No one really knows how the courts (and the Court) are going to answer these questions. If you take the Holmesian view that law consists of "prophecies of what the courts will do in fact", right now this area of law is a big question mark.

  Faced with that uncertainty, the Bush Administration has taken a minimalist approach. Although I haven't followed the latest Gitmo cases closely, my general impression is that they're not inclined to say that a detainee has a particular right unless a court affirmatively rules that this is so. This will strike some as a brave defense of an unpopular but correct constitutional position; others as a conventional lawyerly tactic; others as misguided and unreasonable; and still others as an egregious violation of human rights. Whatever your view both on the merits and on the tactics, this seems to be the pattern of the Administration's litigation positions.

  Boyle's comments follow from that position. As best I can tell from news reports — and I have to be extra cautious here, because the news reports I have seen don't provide a lot of details — the Guantanamo detainees in the case before Judge Leon have alleged that they have a constitutional right to be released because the evidence needed to justify detaining them was obtained by torture. Boyle responded with the minimalist position that as a matter of law, the detainees do not have the constitutional rights needed to trigger the remedy of release. He seemed to be saying that the constitutional minimum was reliability of the evidence, not the specific procedures that were used to obtain the evidence. Because on Boyle's view the detainees don't have those rights, the violations of those asserted rights cannot provide a remedy even assuming that the detainees have been tortured.

  What to make of this? I think the point is not that the U.S. government is trying to persuade people that torture by the military is "no big deal." Rather, the point is that — for better or worse — the Administration is taking a controversial litigation position about constitutional law and waiting for the courts to tell them that they're wrong. (Something that the courts have been doing pretty consistently, I might add.)

Friday, December 3, 2004

Blogging Break and Holiday Presents:

No more blogging for me for several weeks. I need to first finish planning and then actually go on my honeymoon. So Happy Hanukah, Merry Christmas, and Happy New Year to all Volokh Conspiracy readers.

And speaking of Hanukah and Christmas, don't forget that your friendly neighborhood Volokh Conspirators would be most grateful if you would consider purchasing our books as holiday presents for the bibliophiles in your life. (For that matter, your local library could also be the beneficiary of your good will.)

Link to: Barnett, Restoring the Lost Constitution: The Presumption of Liberty

Link to: Bernstein, You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Law

Link to: Cowen, Creative Destruction : How Globalization Is Changing the World's Cultures

Link to: Volokh, Academic Legal Writing: Law Review Articles, Student Notes, and Seminar Papers (a must-get for the law student on your list)

Volokh the Crazed Egalitarian:

The Daily Ablution quotes and critiques a column in The Independent (London) that criticizes various things, including bloggers. Referring to my New York Times article yesterday, the Independent column says:

The blurring between the expertise and experience of the professional and the enthusiasm of the amateur has become part of the culture. . . . The acme of amateur achievement is the weblog -- thoughts, opinions and news items broadcast by an individual and with a potential audience of millions. . . .

More and more Americans, it is now being said, will gather news and views from their favourite blogger, no matter how mad, ill-informed and right-wing, rather than from a newspaper or the news on television. . . .

It was unsurprising to read in The New York Times this week an article by a man with a successful weblog in which he argued that we are all journalists now, that privilege under the law should apply to the humblest blogger as it does to someone working for the national media.

The approach has a sort of crazed egalitarianism to it, but it also suggests that more than just knowledge flows from professionals and their institutions in the age of the Pro-Am. The checks and balances and disciplines that keep intolerance in check may also go. If that is what the new amateurism brings, you can start the revolution without me.

Me, a crazed egalitarian! Cool. But is it really that crazy to think that people who aren't "professional" journalists might actually be one of "[t]he checks and balances" that help keep professionals themselves -- and professionals' own occasional zones of intolerance, whether towards guns or towards President Bush or for that matter towards amateurs -- in check?

See the Ablution post for more, plus a link to the Independent article itself.

Thursday, December 2, 2004

De Long Wait for a Correction:

Brad DeLong has not only failed to apologize for writing a bogus, inaccurate post about me and this website, he hasn't even corrected the original post, even though his own readers corrected him in his comments section, and I forwarded him via email the correction I posted on this blog. So much for (at least certain) bloggers being more responsible about corrections than the MSM.

More (or Less?) than meets the eye to the Palestinian Violinist Story:

Meryl Yourish sends this link, which casts considerable doubt on the original story, especially given that the "eyewitness" didn't understand Arabic, the language in which the conversation between the soldier and the violinist took place.

UPDATE: Various readers have written in to tell me that it's standard practice at airports throughout the world to ask people carrying on instruments to play the instrument to show that it's real and not hiding a bomb. This led to problems for one reader who was bringing a cello to her daughter...

Related Posts (on one page):

  1. More (or Less?) than meets the eye to the Palestinian Violinist Story:
  2. Power Corrupts...:
Tribe blog update:

I am hearing from some readers that contrary to my previous report, the supposed new Tribe blog is in fact a fraud and not by Tribe. A credible source confirms that Tribe knows nothing about the blog. My apologies to Tribe and to VC readers.

"What We Won in Fallouja":

Max Boot writes about this in the L.A. Times.

As Cool As It Must Be

to get your first U.S. Supreme Court argument, I'm not sure that you want press coverage like this. (Link: SCOTUSBlog)

Does Dale Forbid the Solomon Amendment? Following my earlier post asking questions about the Third Circuit's Solomon Amendment ruling, several well-informed readers wrote in to say that my concerns were valid, but that the real problem was the Supreme Court's decision in Boy Scouts of America v. Dale. Under Dale, they argued, the First Amendment gives groups a right to say when complying with a neutral law is inconsistent with their speech; and under Dale, courts have little power to scrutinize whether that is in fact true. So, in Dale the Supreme Court deferred to the Boy Scout's claims that admitting an openly gay scoutmaster would interfere with their message; the First Amendment gave them a right to kick him out. In the case of the groups challenging the Solomon Amendment, the courts must defer to the law schools' claims that allowing military recruiting would interfere with their message of tolerance. According to the reasoning of Dale, the law schools have a constitutional right to kick out military recruiters.

  Whether this argument is persuasive depends largely on how we evaluate two kind of claims, and in particular how much we defer to two claims made by organizations alleging free association violations. The first issue is deference to an organizations's alleged First Amendment message; the second is deference to an organization's claims that complying with a particular law will interfere with that First Amendment message. The first kind of deference is relatively uncontroversial, I suspect. Under Dale, courts cannot too easily second-guess an organization's claim that it stands for a particular message. Courts cannot be too eager to unmask the Boy Scouts as an organization that isn't really committed to exluding gay scoutmasters; similarly, they can't easily dismiss the law schools' claims that they are committed to non-discrimination. Courts have to take these claims at face value so long as they have some plausible support.

  The trickier and more interesting question is how much deference a court must give to an organization's claim that complying with the law would interfere with its message. Defenders of the Third Circuit's decision can point to this line from Dale:
As we give deference to an association's assertions regarding the nature of its expression, we must also give deference to an association's view of what would impair its expression.
The question is, how much deference? Here is how the Supreme Court analyzed the issue in Dale:
[The fact that we must give deference] is not to say that an expressive association can erect a shield against antidiscrimination laws simply by asserting that mere acceptance of a member from a particular group would impair its message. But here Dale, by his own admission, is one of a group of gay Scouts who have "become leaders in their community and are open and honest about their sexual orientation." App. 11. Dale was the copresident of a gay and lesbian organization at college and remains a gay rights activist. Dale's presence in the Boy Scouts would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.
I read this passage in Dale to say that a Court must give some deference to an association's view of what would impair its expression, but that the deference cannot be total: ultimately, the question of whether the association's view receives constitutional backing is something for the court to decide, not the organization.

  How does this apply to the Solomon Amendment case? My own sense is that forcing a law school to allow military recruiters on campus one or two days a year is quite different from forcing a group that sees homosexuality as bad to keep a gay rights activist as a scoutmaster. Why the difference? In the Boy Scouts case, it seems plausible that membership was the message. Most groups are run by their members; the members determine the group's message. If a group can't control its members, then it may be unable to control its message. Imagine if people opposed to gay rights decided to join gay rights organizations en masse and coopt them from the inside, electing their own as leaders. If this were to happen, the inability to exclude those hostile to gay rights would make it difficult for a pro-gay rights organization to exist. Granted, I'm not sure something like this was a realistic fear in Dale; it seems quite unlikely that the Boy Scouts were about to be overrun by gay rights activists. Still, regulating membership does seem to have a pretty direct connection to regulating expression. If a court wants to defer to a group's sense of when it needs to exclude to maintain its message, Dale seems at least a reasonable (although not obviously correct) case in which to do it.

  There doesn't seem to be a similar connection in the Solomon Amendment case. Allowing military recruiters on campus for a few days a year doesn't seem to make it any harder for the law schools to express their opposition to the military's hiring practices. If anything, the presence of military organizations on campus a few days a year for recruiting creates an opportunity for law schools to make their hostility to the military policies crystal clear. The visit would seem to create a catalyst for expression, not put the brakes on it.

  As best I can tell, the law schools' argument for why it couldn't express its message if it allowed military recruiters on campus was as follows:
[J]ust as "Dale's presence in the Boy Scouts would, at the very least, force the organization to send a message, both to youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior," Dale, 530 U.S. at 653, the presence of military recruiters "would, at the very least, force the law schools to send a message," both to students and the legal community, that the law schools "accept" employment discrimination "as a legitimate form of behavior."
If I'm not mistaken, there is a subtle switch going on here. In Dale, "accepting" something as "legitimate" referred to expressing the viewpoint that it was good. It related directly to the Boy Scouts' speech, and its expression of views relating to homosexuality. As used in the Solomon Amendment case, however, "accepting" something as "legitimate" seems to mean only "recognizing that it is existing law." Or perhaps it means "recognizing that it is a legally binding rule not worth suffering the consequences that would follow from violating it." Either way, the acceptance does not seem to relate to speech. Compliance with a law does not imply personal approval of it. Being forced to allow military recruiters on campus won't lead anyone to think that law schools actually approve of military hiring practices. Given this, accepting the law school's claim at face value would seem to allow the law schools to "erect a shield against [complying with the law] simply by asserting that . . . [compliance] would impair its message," which Dale prohibits.

  In conclusion, the Solomon Amendment case does seem trickier than when I first looked into it. To the extent it's relevant — it's not, but some will think it is — I still disagree with the military's ban on service for gays and lesbians. At the same time, I continue to be rather puzzled by the Third Circuit's ruling; it seems to reflect a misapplication of Dale. Finally, thanks to VC readers Joe Landau and others for writing in with comments on my initial post.
Another legal titan enters the blogosphere:

Can you guess who? If nothing else, the opening message shows a great sense of humor.

Update: This "blog" appears to be fraudulent, and not sponsored by Tribe himself. My apologies to Tribe and VC readers.

You Can't Say That! Blurbs:

My publisher, the Cato Institute, has collected a nice group of blurbs about You Can't Say That!, mostly from reviews:

"Bernstein superbly navigates the rough waters of the statutory and case law that attempt to curb discriminatory practices by both public and private organizations. . . . Bernstein carefully leads readers through specific problem areas such as the threat to free expression in the workplace and to artistic freedom, the censoring of campus speech, interference with freedom of association, and diluting the autonomy of religious organizations. . . . A solid effort that deserves a wide readership. Highly recommended." —Choice

"David Bernstein is to be congratulated on so clearly, vividly, analytically, and accurately showing the seriousness of these new threats to free speech and civil liberties in the U.S. The Cato Institute also deserves credit for publishing the book since in Bernstein's words `authors who take politically incorrect positions . . . face a particularly difficult time finding publishers among leading trade presses.' Cato at least is still the land of the free and the home of the brave." —Economic Affairs

"Bernstein undertakes the task of showing, through argument and the compelling use of examples, that antidiscrimination laws, if they are not limited in scope, or if overzealously enforced, are a source of much greater social harm than the discrimination they are intended to prevent. Mr. Bernstein is equal to the task. His book is both well-researched and well-written. It will be as valuable to the serious scholar as it will be interesting and informative to the intelligent lay reader." —Law and Politics Book Review

"It's fashionable in some circles to say that political correctness is a myth, but it's not—and Bernstein offers proof, along with explanations of the harm that it's doing." —Glenn Reynolds, Instapundit.com

"[Bernstein's] book is several cuts above the ordinary entry in the PC wars, combining legal analysis with an easy-to-read style and merciful brevity." —Walter Olson, author of The Excuse Factory and editor of Overlawyered.com

"This excellent book demonstrates that, in case after case, `activists' for one cause or another have shown a willingness to trample on the rights of others." —National Review

"Bernstein shows that the use of antidiscrimination laws in ways that interfere with someone else's civil liberties is not isolated to a single part of the political spectrum. It is not only Democrats who are guilty of the abuse, but Republicans as well." —Accuracy in Academia

"You Can't Say That! does an excellent and methodical job of cataloguing the insanity of anti-discrimination run amok." —Washington Times

"If you're looking to start an argument, take this book to an ACLU meeting." —New York Post

"After reading Bernstein's account, one begins to wonder whether any private group can exclusively assemble without being targeted for discriminatory activity." —Campus

"An important study of the infringements on First Amendment freedoms by antidiscrimination laws." —Chronicles

"You Can't Say That! is a strong contribution to First Amendment scholarship and a reminder of why traditional rights remain as important as ever." —TownHall.com

"This is a persuasive, well-researched, thoughtful, and cutting-edge study. It deserves serious consideration by all friends of liberty, regardless of their political, ideological, or religious persuasions." —Engage

"[Bernstein] takes on a current issue, arguing forcefully that constitutional liberties are in danger." —Liberty

The Supreme Court's Refusal to Consider the Massachusetts Same-Sex Marriage Decision:

Reason Express writes:

It is difficult to tell exactly what message the U.S. Supreme Court sent by rejecting, without comment, a conservative challenge to the Massachusetts same-sex marriage experiment. Does the court want a better, clearer case to address the issue? Do the justices really want the states to hash it out amongst themselves? Do they need more action on the issue from Congress? Or is the Court simply stalling for time until a new chief justice is appointed?

There is little doubt that Chief Justice William Rehnquist is gravely ill with cancer, so the last theory may be the easiest one to swallow, at least at first. But the complaint itself was rather odd, essentially asking the Supreme Court to "save" Massachusetts residents from the Massachusetts high court.

With a possible state referendum on gay marriage a key topic for debate among Massachusetts state legislators, the Court may have concluded that Massachusetts was well on its way to saving itself.

There's actually no difficulty at all here. The U.S. Supreme Court has long made clear that it has no business second-guessing that decision, even if the Justices think the state court's interpretation of the state's own constitution or statutes is flat wrong.

The Court is only entitled to review state court rulings if a federal right is involved. (For instance, if the lower court decision rejected a claimed federal right to have the state recognize same-sex marriages, then the Court would have jurisdiction, though it probably wouldn't agree to hear the case unless there were a disagreement on this federal question among lower courts.) The only federal claim in this case is that the Massachusetts' decision so far departs from the proper interpretation of the state constitution that it violates the Guarantee Clause, which says "The United States shall guarantee to every State in this Union a Republican Form of Government." But, first, the Supreme Court has long taken the view that Guarantee Clause issues are nonjusticiable, which is to say not subject to review by the courts. And, second, even if the Court might want to reverse that position, it's highly unlikely to do it in order to start correcting state judges' misinterpretations of state law.

The Reason Express item is right in part -- the Justices think that if anyone is to correct the Massachusetts Supreme Judicial Court's decision, it's the Massachusetts voters. But whether the voters ultimately do decide to correct it or not is irrelevant. Longstanding and well-settled law makes clear that the Court needs to stay out of this.

The case could be as clear as possible; Congress could be unable to act; the Chief Justice could be in the best of health; but the Court still wouldn't reconsider a decision such as the Massachusetts one. And that's because, yes, the states are entitled to decide this particular question on their own, at least without the Supreme Court second-guessing them on how their own constitutions need to be interpreted. Lyle Denniston (in Slate) also has a good piece about this.

My Thoughts on a Journalist's Privilege,

with talk of Plame and blogs and more, are in this morning's New York Times, squeezed into 840 words.

Wednesday, December 1, 2004

Disability Law Blog:

The number and diversity of lawprof blogs continues to grow. The latest welcome addition is Disability Law, by lawprof Sam Bagenstos. (Link: Howard)

Judge Gettleman:

While the Question Presented series over at Underneath Their Robes promises lots of fluff, the latest installment is an exception. Judge Gettleman seems like a genuinely cool guy.

My Exchange With Ramesh Ponnuru in The Corner In the Corner on NRO, Ramesh Ponnuru responds to Jonathan Adler's column by asking:
Why should the analysis of whether criminalizing the medicinal use of marijuana is a legitimate federal power turn on whether a state government has taken a view of the matter? If I follow your argument correctly, the federal government doesn't have the power to prohibit medical marijuana--and it doesn't have that power in Alabama, which also prohibits it, any more than it has it in California, which does not. If the federal law were an exercise of a legitimate power, on the other hand, a state could hardly nullify it within its borders. So the federal prohibition either is or isn't within the federal government's constitutional powers. Aren't the state laws irrelevant to the question?
This is a good question, and one that took me some time to understand. For my answer, click here.
Pronouncing the Capital Letters: A couple of readers asked what I could possibly mean by saying that Supreme Court groupies pronounce the capital letter in "the Court." Of course, it's a bit of a joke, since naturally you can't literally pronounce the capital letter. I had thought it was a familiar joke, but I guess it's not, so here's a little explanation of what might be the truth behind the joke: Imagine people saying (1) "imagine the perspective of the creator" or (2) "imagine the perspective of the Creator." The second person might say it a little differently, maybe with slightly different facial expressions or intonations -- or, more figuratively still, the speaker and the listener might just have a common assumption that leads the listener to think of Creator rather than just creator. Hence the notion of figuratively pronouncing the capital letters.

Going through a draft of my Child Custody and Speech Restrictions paper -- it's the one I should be working on now instead of blogging this -- I realized what it was missing: Verve. "Energy and enthusiasm in the expression of ideas . . . . Vitality; liveliness."

My writing was the usual lawyerese, flabby and clausy. The substance was getting there (though it still needs a lot of work), but it was missing vigor, concreteness, punch. So I've been doing Vervification Edits as part of my substantive editing passes. Let's see if I can put some zip in. If only the verve could flow off my fingers in the first place, rather than having to be laboriously added.

Value of the Mainstream Media: It's blogosphere-hip to question the value of the mainstream media, but it seems to me that this isn't the kind of value that most people expect CNN to deliver:
PR Meets Psy-Ops in War on Terror

  On the evening of Oct. 14, a young Marine spokesman near Fallouja appeared on CNN and made a dramatic announcement.
  "Troops crossed the line of departure," 1st Lt. Lyle Gilbert declared, using a common military expression signaling the start of a major campaign. "It's going to be a long night." CNN, which had been alerted to expect a major news development, reported that the long-awaited offensive to retake the Iraqi city of Fallouja had begun.
  In fact, the Fallouja offensive would not kick off for another three weeks. Gilbert's carefully worded announcement was an elaborate psychological operation — or "psy-op" — intended to dupe insurgents in Fallouja and allow U.S. commanders to see how guerrillas would react if they believed U.S. troops were entering the city, according to several Pentagon officials.
  . . .
  Officials at the Pentagon and other U.S. national security agencies said the CNN incident was not an isolated feint — the type used throughout history by armies to deceive their enemies — but part of a broad effort underway within the Bush administration to use information to its advantage in the war on terrorism.
Link: Drudge.
Adler on Importance to Federalism of Raich v. Ashcroft: The press correctly reported the fact that the questions directed towards me were pretty intense. Only one Justice from the "Federalist Five" evinced any awareness of the implications to the Court's so-called "Federalism Revolution" of reversing the Ninth Circuit's decision. This was Justice O'Connor in her tough questions to Paul Clement. (Interestingly, she asked me no questions that I recall. The full transcript of the entire hearing will be very interesting to read.) This does not mean that the other "federalist" Justices are unaware of the consequences, or that they will not appreciate them when decision time comes. But I truly believe that there is no way to rule for the government without essentially limiting Lopez and Morrison to their facts. There will never be another successful Commerce Clause challenge to a federal statute in the Courts of Appeals if the Supreme Court accepts EITHER of the government's two theories: (1) that the activity here is really economic so that Lopez/Morrison does not apply or (2) an exception for regulations of noneconomic activities as part of a broader regulatory scheme that could be undercut unless they are reached applies to this state identified and policed class of activities.

Professor Jonathan Adler has a nice explanation of the serious constitutional issues at stake in a column today on National Review Online entitled High Court High Anxiety: The Supreme Court's medical-marijuana case could send federalism up in smoke. Here is his conclusion:
Despite its apparent importance to drug warriors, Ashcroft v. Raich is not about medical marijuana or drug prohibition. Nor is it about the wisdom, or lack thereof, of allowing chronically ill individuals to smoke weed for medicinal purposes. Rather, it concerns the limits of federal power under the Constitution. Federalism does not play favorites. It limits the scope of federal power to pursue liberal and conservative ends alike. If a majority of the Court remembers this lesson, Angel Raich will get to keep her medicine. More important, the nation will keep the constitutional limits on federal power.
Off now to teach my last Contracts class of the semester.

PS: If you click on the picture I posted yesterday here, it opens on a larger format so you can actually see what Nina Totenberg looks like.
Free Culture:

For those of you who may be interested, a copy of my review (in Reason magazine) of Larry Lessig's most recent book ("Free Culture") is posted here.

Yale Outsmarts Harvard:

Michael Froomkin has the scoop.

Tuesday, November 30, 2004


"SCOTUS" is what some people call the Supreme Court Of The United States. (Some use POTUS for the President as well.) We see evidence of that in the name of SCOTUSBlog, a first-rate blog written by Supreme Court litigators, though in my experience the term "SCOTUS" is actually fairly rare among clerks and Supreme Court lawyers (who usually call it "the Court," pronouncing the capital C).

For some reason, I was just reminded today of the fact that (1) in 2001, while looking for the Supreme Court site, I foolishly went to scotus.com, rather than supremecourtus.gov, and (2) the Internet Wayback Machine can largely reproduce the mildly amusing item I found there, though unfortunately the photos (nude, but they would have been work-safe) are missing.

Third Circuit mass recusal:

Howard Bashman (How Appealing) notes, apropos a Solomon Amendment case, that "In the Third Circuit, however, rehearing en banc is not available if a majority of the judges in regular active service is recused from hearing a case. A notice enclosed with the copy of yesterday's Third Circuit ruling that the court sent to me by mail indicates that a majority of the Third Circuit's active judges is recused from the case." Therefore, while I predicted that the case would go to the U.S. Supreme Court if the Third Circuit doesn't rehear it en banc, it sounds like I need to get rid of that "if" clause. Howard agrees:

Often the U.S. Supreme Court will refrain from hearing cases that involve the grant or denial of a preliminary injunction, because that relief will be superseded once the trial court issues its final adjudication. In this instance, however, that usual reluctance may not exist, because yesterday's Third Circuit ruling leaves little doubt how the case must be resolved on the merits in the district court.

What's more, because the case holds unconstitutional the application of a federal statute, the U.S. Supreme Court is especially likely to review it. Just as the Court tends to want to review "splits," which is to say solid differences of opinion, among lower courts, so it tends to want to review splits between the legislative and executive branches on the one hand and the lower courts on the other.

By the way, if anyone has any well-informed thoughts about why so many Third Circuit judges recused themselves, please let me know.

UPDATE: Several people suggested that some of the judges may be on the Boards of Trustees (or, in some schools, Boards of Visitors) of some of the private schools involved in the litigation, or might possibly teach at those schools at adjunct professors. But at this point this is just speculation; I've seen no concrete evidence. I suppose it's also possible that some might have children at those schools; I take it that's why Justice Thomas recused himself from the Virginia Military Institute case -- I doubt that recusal would be strictly required in such a situation, but maybe some judges are erring on the side of caution there.

Merriam-Webster names "blog" as Word of the Year:

Here is the story.

The Folly of the International Court--Israel as Exemplar:

Details here.

Donor nations, including the U.S. [a reader points out that the official U.S. rationale is that it won't fund projects in the West Bank if the Palestinian Authority objects], are denying funds to Israel to build roads for Palestinians in the West Bank on the ground that the ICJ has declared Israel's fence and related West Bank policies to be illegal under international law. The post linked to above goes into detail on the relevant legal issues, but I'll point out another interesting fact: for all the Palestinians' complaints about the checkpoints, they (or at least their leaders, who lobbied strongly against the funding) would rather have the checkpoints than have Israel build a road system that would allow them to travel much more freely throughout the West Bank without creating a terrorism hazard for Israelis.

Power Corrupts...:

A friend sent me a link, which I can't find right now, to a story about Israeli soldiers forcing an Arab man at a West Bank checkpoint to play his violin. Given the history of terrorists hiding bombs in ambulances and other seemingly innocent locations, it's not surprising that the soldiers wanted to check on the violin, just as in the U.S. the TSA makes you turn on your laptop. Still, the soldiers apparently took gratuitous pleasure in this exercise of power, even ordering the man to "play something sad."

Unfortunately, there are many stories of abusive behavior at the checkpoints. Put a bunch of 19 year old men in a position where they have absolute power over other people, and some will inevitably abuse that power. The Israeli military can and should, however, do a better job of training and supervising its soldiers.

But let's also recall, as media stories on the issue never do, that the checkpoints only exist in their current form because of the need to prevent suicide bombing murders. Before the Palestinians began engaging in this "tactic," they could move more or less freely within the West Bank, Gaza, and even Israel. (Not to mention that Israel wouldn't even be occupying the West Bank anymore if Arafat had been willing to strike a deal in 2000.)

My (Israeli) wife notes that when (if) there is eventually a peace deal, the Palestinians will be a lot poorer in the long-term than they would have been had a deal been reached before the "Oslo War" was launched by the Palestinians in 2000. Israelis used to go to the West Bank to get good deal on car repair, food, and other items, and later to gamble in Jericho, and many Palestinians used to go to Israel to work. Few Israelis in the future will be willing to hire Palestinians (Thai or Bulgarian workers present much less risk to life and limb), and even fewer will be willing to shop in towns that were hotbeds of terrorism and mayhem.

UPDATE: In a rather uninformative release, the Israeli army reports that it investigated the violin incident, and concluded that the violinist played his violin voluntarily.

The Solomon Amendment and Catholic Legal Theory:

An interesting debate on the latter subject is ongoing at the Mirror of Justice blog.

Is Al-Qaeda a Paper Tiger?:

Kevin Drum collects some stories suggesting the answer may be "yes." I don't know what to make of these stories myself, but they seem worth passing on.

Another Victim of Arafat

My recent media column in the Rocky Mountain News examined the press's moral bankruptcy in its coverage of the death of the mass-murdering terrorist Yassir Arafat. A reader sent his own memories of one of Arafat's many crimes against humanity:

When I was living in Israel from 1977-78 Yasir Arafat sent a group of terrorists down from Southern Lebanon in a small boat. They landed north of Haifa and when they came ashore found a young American woman by the name of Gail Rubin. She was a nature photographer who had the misfortune of taking photographs in the area where Arafat's men beached their boat. (A beautiful collection of her photographs was published after her death under the title: Psalmist with a Camera). After extracting information from her about their location they murdered her and proceded to the coast highway. There they commandered a bus and drove down the highway, shooting at pedestrians and passing cars. When the Israeli army shot out the tires and stormed the bus the terrorists opened fire on the passengers. Gail Rubin and the others murdered that night were just a few of the victims of Yasir Arafat. As you pointed out in your piece on November 20 in the Rocky Mountain News, he was a man responsible for death of thousands of Jews and, because of the violence he fomented, of thousands of Palestinians as well. I agree with you that the news coverage about Arafat after his death was unbelievably distorted and cowardly.
Anti-terrorism, Pro-freedom County Music

What if The Weekly Standard were turned into country music songs? It would probably sound a lot like the music of Eric Free and the Freedom Band. The band sings catchy country numbers like "Saddam Insane" ("Saddam Insane, twisted brain, gotta say goodbye to his evil reign"), "There's No God in Old Bin Laden" ("they pretend it's their religion, but it's just the Devil's fun"), and "United We Stand" ("Evildoers invaded our land; they bombed our cities and slaughtered our friends. We'll win this war that they began"). Each song of this "New Patriot Music" can be downloaded from the group's website for 99 cents, and the website provides a short clip of every song, so you can decide if you like it.
Faculty Clubs and Churches: Bill Stuntz, one of the country's leading scholars of criminal law, has an interesting essay over at TechCentralStation on the similarities between law school faculties and churches. An excerpt:
  The past few months have seen a lot of talk about red and blue America, mostly by people on one side of the partisan divide who find the other side a mystery.
  It isn't a mystery to me, because I live on both sides. For the past twenty years, I've belonged to evangelical Protestant churches, the kind where George W. Bush rolled up huge majorities. And for the past eighteen years, I've worked in secular universities where one can hardly believe that Bush voters exist. Evangelical churches are red America at its reddest. And universities, especially the ones in New England (where I work now), are as blue as the bluest sky.
  . . .
  . . . Most of my Christian friends have no clue what goes on in faculty clubs. And my colleagues in faculty offices cannot imagine what happens in those evangelical churches on Sunday morning.
  In both cases, the truth is surprisingly attractive. And surprisingly similar: Churches and universities are the two twenty-first century American enterprises that care most about ideas, about language, and about understanding the world we live in, with all its beauty and ugliness. Nearly all older universities were founded as schools of theology: a telling fact. Another one is this: A large part of what goes on in those church buildings that dot the countryside is education — people reading hard texts, and trying to sort out what they mean.
Thanks to Mirror of Justice for the link.
Poll on Roe v. Wade:

From an AP story yesterday:

[An AP] poll found that 59 percent [of respondents] say Bush should choose a nominee who would uphold the 1973 Roe v. Wade decision that legalized abortion. . . . 31 percent, said they want a nominee who would overturn the decision . . . .

Sounds pretty striking (and I should note that it's important even given the substantial correction that I note below). But here's what the poll actually asked, courtesy of the ever-valuable PollingReport.com:

"As you may know, President Bush may have the opportunity to appoint several new justices to the U.S. Supreme Court during his second term. The 1973 Supreme Court ruling called Roe v. Wade made abortion in the first three months of pregnancy legal. Do you think President Bush should nominate Supreme Court justices who would uphold the Roe v. Wade decision, or nominate justices who would overturn the Roe v. Wade decision?"

But wait — Roe didn't just make abortion in the first three months of pregnancy legal. It also made it legal at any time before viability (limiting government regulation to that related to protecting "maternal health"); the Court said viability would be at about six or seven months (though over time, the line has moved up a bit, as the 1992 Casey decision recognized). I suspect that such months-four-to-six abortions would be considerably more controversial than ones in months one through three.

Now I should say the poll is still pretty significant, because it shows broad support for the constitutional protection of first-trimester abortions. But it doesn't show equal support for all aspects of Roe, especially its protection of second-trimester abortions. And while I realize that poll questions have to be kept simple, (1) I suspect that the polltakers shouldn't have oversimplified things this much — to the point of material inaccuracy — and (2) at least they should alert media organizations that the question contains this oversimplification.

And, of course, this is yet another reminder to be highly skeptical of media reports of surveys. Good thing that PollingReport.com now lets us check them more closely, though I suspect that no more than a tiny percentage of readers will ever check them this closely.

Incidentally, when will news organizations that post online stories actually start linking to the survey text?

UPDATE: Reader Paul N. points me to another poll, this one also on Pollingreport.com, done in January 2003:

"Thinking more generally: Do you think abortion should generally be legal or generally illegal during each of the following stages of pregnancy? How about [see below]?"
LegalIllegalDepends (volunteered)No Opinion
"In the first three months of pregnancy"66%29%3%2%
"In the second three months of pregnancy"25%68%4%3%
"In the last three months of pregnancy"10%84%4%2%
More evidence, I think, that "would uphold the 1973 Roe v. Wade decision" isn't the same as "would uphold a right to abortion in the first three months of pregnancy."

Note also that the question might also yield a different result if it were made clear that though "Roe v. Wade decision . . . legalized abortion" in 1973 — a few states, including California and New York had already legalized abortion, but throughout most of the nation it was largely illegal — overruling Roe wouldn't criminalize abortion as such, but would just leave the matter to the states (most of which would likely leave it legal in the first three months). But I'm not sure about that. I do strongly suspect, though, that describing Roe accurately, as protecting abortions in the first six months (or at least first five months, depending on where the viability line is drawn) rather than just in the first three months, would indeed yield a different result.

Of course, none of this goes to what the right answer should be, constitutionally, statutorily, or morally. I am speaking here only of misleading survey reports.

Florida pro-Bush Democrats:

Remember those allegations early this month (feels like ages ago, doesn't it?) that there was something fishy in some Florida counties' being reported as voting heavily pro-Bush when voter registration was heavily Democrat? It seemed to me that this was actually fishy only to those who hadn't heard of conservative Southern Democrats, but people definitely brought it up (see the linked post above for an example). Here's what John Fund in OpinionJournal's Political Diary has to say about the latest in this saga; entire item reprinted with permission:

Pith-Helmeted Reporters Meet Bush Voters

Two Miami Herald reporters got a real education in red-state thinking when they decided to check out the Internet conspiracy theories that George W. Bush had stolen Florida because several counties with overwhelmingly Democratic voter registration edges had voted Republican for president. As one blogger put it, "George W. Bush's vote tallies . . . are so statistically stunning that they border on the unbelievable."

Not after the Miami Herald scribes decided to actually drop in on three of the northern Florida counties whose vote totals were questioned. Sounding as if they were cultural anthropologists visiting an exotic tribe, reporters Meg Laughlin and David Kidwell first visited Union County, where over 75% of voters are Democrats. They physically recounted the ballots cast in this month's election and concluded the results accurately reflected Mr. Bush's reported 72% victory. Election Supervisor Babs Montpetit explained: "People here are fundamentalist Christians who work in the prisons. Do you think they're going to vote for the liberal senator from Massachusetts?"

Having absorbed that observation, the intrepid pair proceeded to next-door Suwannee County, immortalized in the famous Stephen Foster song. Election Supervisor Glenda Williams showed them the ballots, which the reporters noted validated Mr. Bush's 70% victory there. "Most people in this county are against abortion and gay marriage. So they voted for Bush," she explained.

The final stop on the team's cultural odyssey was Lafayette County, where 83% of voters claim to be Democrats. Here the reporters didn't have to wait long for an explanation as to why Mr. Bush won three-fourths of the vote. A billboard on the road proclaimed "There is life before birth" and a neighborhood was called "The Christian Village." After quickly recounting the county's ballots, the reporters headed back to the Jacksonville airport, noting that the roadway was lined with "Snoball stands, chicken farms and anti-abortion billboards."

The Herald's excursion into Florida's Bush Country may not have turned up any election scandals, but the concept appeals to me. Perhaps more big-city media outlets should send expeditionary forces into rural and exurban parts of their states and report on what people there are thinking. Then fewer of them might be surprised every two years.

Yeah, a bit snide, but pretty funny.

Pacers to Face Criminal Charges According to this report, both unruly fans and several players for the Indiana Pacers will face criminal charges for their conduct in the November 19 basketbrawl. The fan who threw a chair may be in the most serious trouble. Prosecutors say they are likely to file elony assault charges against him.

Insofar as any indictments against players focus on actions taken off the court, I think that they are justified. I do not think that local law enforcement should seek to prosecute players for any actions taken by players on the court, however. Nor would I be sympathetic to any tort suits filed by fans injured by players on the court. I feel this way for two reasons. First, I believe that fans who ventured onto the court during the fracas assumed the risk of injury. Second, I think that players could reasonably perceive Detroit fans coming onto the court as a threat. Therefore, they could argue that their actions against fans on the court were made in self-defense.

Meanwhile, it appears the Indian Pacers franchise could save over $7 million due to the extensive suspensions of Ron Artest and other players involved in the brawl.

Likudnik, One More Time:

Brad Delong writes:

I use the word "Likudnik" routinely to refer to those in American who support Likud, and who believe that the national security of the United States is advanced by feeding Likud's annexationist fantasies. I'm not an anti-semite. And I don't like being called one:

The Volokh Conspiracy - : ...the phrase "Likudnik" is gradually becoming a general anti-Semitic term for Jews whose opinions one doesn't like.... "Likudnik" has become a term of disapprobium analogous to the term "Uncle Tom" for non-left-wing blacks. Just like it's assumed that moderate, conservative, and libertarian blacks must not be thinking for themselves, but instead serving "the Man," so moderate, conservative, and libertarian Jews must be serving the interests of right-wing Israelis (the obvious difference is that left-wing culture values African American self-interest and nationalism, while left-wing culture values Jews and Judaism only to the extent they are put in the service of internationalism and humanist causes.)... Well, the Left (along with the Washington Post, which used the term in a major article attacking Bush Admnistration neonconservatives) has let this particular anti-Semitic genie out of the bottle...

Suggestions for what should replace the Volokh Conspiracy on my regular reading list?

One of his readers responds in the comments section:

Bernstein on the Volokh Conspiracy doesn't say that anyone who uses the term "likudnik" is an anti-semite. He says 'the phrase "Likudnik" is gradually becoming a general anti-Semitic term for Jews whose opinions one doesn't like.' Which is my general impression as well. It's becoming like calling someone a "cosmopolitan Jew," or an "oriental" or a "negro." These were once neutral terms, or even terms with positive connotations. But these terms' meaning has shifted and they are now pejorative.

If you don't believe this, I wouldn't claim that you're anti-semitic. I would guess, though, that you've been a little sheltered and haven't read much of the borderline-anti-semitic left. You probably haven't been receiving hate mail calling you a "likudnik monkey."

In the end, Bernstein says 'Let's start by having a moratorium on the term "Likudnik" to refer to anyone but actual, declared supporters of Likud (I'm actually a Shinuinik, if anything), and only when they are supporting or justifying a policy on Israel-related affairs.' This is almost the same as DeLong's position. And posters on this thread seem to agree that this is the legitimate use of the term. So, what's to object to in Bernstein's post?


Given the Brad either didn't bother to read the entire post, or didn't read it closely enough to comprehend it, but nevertheless felt compelled to comment on it, I hereby invite him to cease reading my posts so he no longer misrepresents what I write. He can still read the rest of the VC by using this link.