Saturday, February 26, 2005

More Responses to Textualism and the Takings Clause: Over at The Right Coast, Michael Rappaport has a thoughtful response to my Wednesday post about textualism and the Takings Clause. Meanwhile, Kip of A Stitch in Haste calls me "smarmy," my post "utterly silly," and the Volokh Conspiracy in general "a collection of bored semi-scholars and intellectual narcissists preening themselves in front of the blogospheric mirror." Hey, that's a pretty good quote -- does anyone else think it would be perfect for one of our t-shirts?

Related Posts (on one page):

  1. More Responses to Textualism and the Takings Clause:
  2. Stuart Buck On Text and Takings:
  3. Textualism and the Takings Clause:
New Media Analysis

My latest media column for the Rocky Mountain News examines the Baby 81 hoax from Sri Lanka (in which, supposedly, nine families claimed the same baby who was recovered from the tsuanami). I also look at media coverage of the UN rape scandals, and of the Saudi high school in Virginia which produced the alleged would-be assassin of President Bush.

People interested in following the Ward Churchill controversy should check out the very comprehensive collection of links from Pirate Ballerina. Another indispensible source is the material posted on the webpage of the Caplis & Silverman Show, from KHOW radio. What the links make clear is that the Churchill case is not about the freedom to express unpopular views about U.S. policy; it's about a consummate fraud and bully, who advocates and provides instructions for Americans to commit murderous terrorist attacks within the United States. It is also clear that the University of Colorado has protected Churchill for many years despite knowledge of his misconduct and fraud.


Hate it, to a degree irrationally disproportionate to its (slight) inferiority to "though." I know reasonable minds may differ, but there it is. "'Though,' not 'although'; 'on,' not 'upon'"; that's my motto (though one that may admit of occasional exceptions as to "upon"). Say, maybe that's what I should put on the T-shirts! Then again, maybe not.

Friday, February 25, 2005


In response to my post on editorial changes, Iain Murray (whose Edge of England's Sword blog has just gotten active again) writes:

[W]hen JRR Tolkien got the edited manuscript of The Hobbit back from his publishers he was outraged to see all references to "Elvish" changed to "Elfin" and all instances of "Dwarfs" corrected to "Dwarves", among many others.

Yup, the Elves were certainly not elfin.

Treaties and Domestic Courts:

Hofstra lawprof Julian Ku blogs in Opinion Juris in response to a Wall Street Journal editorial:

Today's Wall Street Journal has an interesting, essentially right, but somewhat overbroad editorial ($) on the upcoming Medellin case before the Supreme Court.

Medellin, most of you no doubt recall, will consider the domestic legal effect of an International Court of Justice judgment finding the U.S. in violation of its treaty obligations under the Vienna Convention on Consular Relations. In particular, the ICJ has ordered the U.S. to provide review and reconsideration for foreigners (particularly Mexicans) who were convicted of capital crimes and sentenced to death but whose initial arrest violated their treaty obligations. . . .

I'm not an expert on the subject, but if you're interested in it, read Julian's post for more details.

Federalist Society Symposium Being Blogged

on Ex Parte, the Harvard Law School Federalist Society blog. The details seem to be provided in the comments to each post, so check them out.

Jim Lindgren will be speaking tomorrow. Special bonus today: Michael Moore showed up -- and he lost weight.

Free Speech in Alabama: I what I am told is an amazing development, the Student Senate at the University of Alabama has voted unanimously to condemn the speech code adopted by the Faculty Senate.
Yesterday, the Student Senate unanimously passed a resolution that represents a stunning victory for academic free speech. In concise and clear wording, it explicitly repudiates a resolution by the Faculty Senate which calls for a sweeping speech code. Interestingly, the Faculty Senate resolution also passed without a dissenting vote. This is shaping up into quite a David and Goliath battle.
U of A professor David Beito of Liberty and Power provides the student resolution here and the context here.
Some Sensible Words about the Larry Summers flap:

The Economist this week has some sensible words about the Larry Summers "women in science" brouhaha. As they put it: "What is happening at Harvard would be funny if it were not so outrageous." Precisely. The reaction to Summers' speech has exposed the appalling hold that political correctness has on substantial elements of the Harvard faculty. Imagine -- the Harvard President has the nerve to hold controversial ideas at odds with current orthodoxy! And the temerity to actually speak about those ideas!! What does he think a University is, anyway? If the faculty go through with their threats to "censure" Summers with a "no confidence" vote, it will be a black day for that institution.

Today's Bushism:

Today's Bushism at Slate is:

"The United States and the U.S. stand together in support of the Iraqi people and the new Iraqi government, which will soon come into action." — Brussels, Belgium, Feb. 22, 2005

Except that the transcript (which Slate of course doesn't link to) seems to reveal the broader context to be:

PRESIDENT JUNCKER: Good evening, ladies and gentlemen. . . .

As regards Iraq, we applauded the courage of the Iraqi people and the results of recent Iraqi elections, as far as the out-turn was concerned. We are pursuing our common engagement in Iraq. The United States and the U.S. [sic] stand together in support of the Iraqi people and the new Iraqi government, which will soon come into action. To that end, should the new Iraqi government request it, the United States and European Union are prepared to co-host an international conference to provide a forum to encourage and coordinate international support for Iraq. . . .

I leave this to the President of the U.S.

PRESIDENT BUSH: Mr. Prime Minister, thanks. . . .

Yup, it seems like today's Bushism wasn't said by President Bush, but rather by European Council President Jean-Claude Juncker (who is also the Prime Minister of Luxembourg, hence the honorific that President Bush gave him) — or, I suspect, by the translator. I checked all the transcripts I could find on LEXIS, and none attributed this to Bush; all attributed it to Juncker, except one that attributed to an otherwise unidentified "Scheffer," likely an error.

Am I missing something here? Or is this yet another flub, much like the one on Feb. 10? That one was at least based on an erroneous transcript (though the error could have been caught had someone did a quick search to see what other transcripts said, or listened to the audio file). This one seems to be based on an erroneous reading of the transcript.

Many thanks to two readers, one anonymous and the other Kennan Shelton, who alerted me to this.

UPDATE: Slate has put up a correction at the top of today's Bushism, acknowledging that the statement was made by Juncker. This seemingly happened just a few minutes ago (roughly 3 pm Pacific).

FURTHER UPDATE: Stuart Buck coins the word "Slatenfreude."

YET ANOTHER UPDATE: It turns out that OpinionJournal's Best of the Web had busted Bushisms for exactly the same error a couple of years ago:

[Today's "Bushism of the day"]:
"I would like to express my deep condolences for the loss of the Senate."--Commenting on Sen. Paul Wellstone's death, Crawford, Texas, Oct. 25, 2002

Now, let's go to the transcript, which is of a joint appearance with Bush and China's President Jiang Zemin. It begins with Bush speaking:

Thank you for coming, President Jiang.

PRESIDENT JIANG: Mr. President, ladies and gentlemen. I just learned that one plane crashed. I would like to express my deep condolences for the loss of the Senate. And also I would like to express my condolences to the bereaved family.

Slate's correction is here.

Considering George Mason Law School?

Are you considering attending George Mason, academic home of me and co-conspirator Todd Zywicki? People telling you that it's crazy to consider Mason over a "superior" (i.e., higher-ranked in U.S. News) school? Well, I'm meeting an increasing number of GMU law students who have turned down, among other schools, local and regional competitors William and Mary, George Washington, and Georgetown (in fact, I've run into several students who turned down G'town but not G.W.; I didn't think to ask, so I'm not sure if they didn't get in or didn't apply to G.W.). Several years ago, such students were few and far between, but not anymore. I don't have exact numbers, but I'd say it's pretty common (given that G.W. and G'town have way bigger entering class sizes than Mason, it wouldn't take, from their perspective, many students who turned them down to make up a significant proportion of a GMU class--20 each, and you have a quarter of a GMU entering class!). Your mileage may vary of course, and one's choice of law school is a highly individual decision. But if your heart is with GMU, and you want to reject a higher-ranked school, go for it, you will not be alone.

UPDATE: Professor Jonathan Adler of Case Western Law School (and The Corner) writes in to remind me that the phenomenon I identify is not entirely new (though it has clearly accelerated), and that he turned down G'town and G.W. for Mason, "the best choice in the D.C. area."

The Other Second Amendment Challenge to the D.C. Gun Ban:

Bob Levy of the Cato Institute writes:

Parker v. DC (I am co-counsel): Parker was stayed by the DC Circuit pending resolution of Seegars. Accordingly, on 2/16/05, eight days after the DC Circuit's Seegars opinion, we filed a motion to set a Parker briefing schedule and hold oral argument on the merits . . . .

We assert that Parker is factually distinguishable from Seegars. (1) Parker plaintiffs were personally and unambiguously threatened w/prosecution by DC officials during oral argument and in the press. (2) DC's failure to raise standing in Parker reaffirms the city's intent to prosecute. (3) Trial judge Sullivan, after ordering supplemental briefing on standing, did not mention that issue in his opinion on the merits.

Recall that in the Seegars case the U.S. Court of Appeals for the D.C. Circuit rejected the challenge to the D.C. gun ban (which bans possession of handguns and bans home possession of rifles and shotguns unless they're locked and unloaded) because the challengers didn't have "standing" — they hadn't yet been prosecuted, or personally threatened with prosecution. If Bob is right, then the Parker case wouldn't have such a problem, and the D.C. Circuit would indeed have to reach the Second Amendment question. I guess we'll see soon enough what the D.C. Circuit will do . . . .

UPDATE: Here's the challengers' motion, describing their argument.

The Ward Churchill Controversy Is Not About Tenure as Such:

Jim Geraghty (The Kerry Spot, at The National Review, quotes Newt Gingrich on Ward Churchill:

Ward Churchill is a viciously anti-American demagogue. He has every right to free speech, and I support his free speech . . . . We should give him free speech by not paying him.

You don't need tenure in this country anyway. The idea that he would be oppressed without tenure is nonsense. There are 75 whacked-out foundations that would hire him for life. Dozens of Hollywood stars would hold fundraisers for him. His life will become a film by Michael Moore.

The question here, is "What obligation does society have to fund its own sickness?"

We ought to say to campuses, it's over . . . . We should say to state legislatures, why are you making us pay for this? Boards of regents are artificial constructs of state law. Tenure is an artificial social construct. Tenure did not exist before the twentieth century, and we had free speech before then. You could introduce a bill that says, proof that you're anti-American is grounds for dismissal. . . .

The Ward Churchill issue is not about tenure as such. The Supreme Court has held that even government employees, including ones who are untenured, have a right to free speech; and courts have applied this especially strictly to scholarship and speeches by public university professors (and professional standards have generally reinforced this rule and applied it to private universities). If you're untenured, you may be fired for any reason except your exercise of your constitutionally protected free speech rights (and your race, sex, religion, and the like). And a law that says "proof that you're anti-American is grounds for dismissal" would violate the First Amendment, as the Court has interpreted it for roughly half a century, just as a law that says "proof that you're pro-life is grounds for dismissal" or "proof that you're anti-affirmative-action is grounds for dismissal" would violate the First Amendment.

Tenure is an extra protection beyond that given by the First Amendment: It's a contractual (or perhaps a statutory) guarantee that professors can't be fired without good cause, which is interpreted quite narrowly. This means not just that a professor can't be fired for his viewpoints, but also, generally speaking, that he can't be fired if he's a bad teacher (perhaps unless he's an awful teacher), he can't be fired if he produces virtually no scholarship, he can't be fired if he's unpleasant to be around, and so on.

Now tenure does in practice protect professors' academic freedom. Under the First Amendment, a university can't fire a professor because he expresses anti-American, pro-life, anti-war, or pro-biological-gender-differences views. But if the university is free to fire professors for other reasons, then it can come up with some pretext (we aren't really firing this professor because he's a Republican; it's just that we think we can get someone more productive instead), and thus fairly easily get away with the First Amendment violation.

But even if tenure is abolished -- and there are good arguments for it, since perhaps its costs (e.g., retention of some people who are bad teachers or unproductive scholars) exceed its benefits (e.g., protection of academic freedom) -- the First Amendment academic freedom principles would still remain. Perhaps universities could try to push the envelope; public employers can sometimes fire employees because their public speech sufficiently alienates the public, and maybe universities could argue that university professors should be treated more like other government employees this way. But certainly, as I mentioned, a "proof that you're anti-American is grounds for dismissal" law would be unconstitutional even in the absence of tenure.

Finally, if tenure is abolished, and universities cut down academic freedom protections to the minimum that the First Amendment demands (or the Supreme Court reverses its First Amendment protection for government employee speech), do we really think that only extreme anti-Americans will be fired? Or would it be likelier that the overwhelmingly left-wing faculties and administrations will fire lots of professors on the right -- including people who express eminently legitimate views, just on topics that are unpopular with the left?

Go Swanny!

Lynn Swann for Governor! (I know its not my state, but I was born there!)


As I informed one reader, my endorsment of Swanny is based on "unapologetic idolatry for a hero of my youth" (maybe its just as well that I'm not a Pennsylvania voter any more). For those who actually want to know about him as a candidate, a more serious person than I has collected info and links regarding Swann's background here.

The best response I received was from a fellow former-Pittsburgher who said this is just the beginning--when Swann eventually becomes President he can appoint Jack Lambert Secretary of Defense!

Related Posts (on one page):

  1. Go Swanny!
Two Related Puzzles:

A certain kind of war is 153, sort of. And a bit less than 2.72 is 10,000,000. How?

(Show a hint.)

(Show the answers.)

Schuck on Yale and Military Recruiters:

Peter Schuck, author of the wonderful Diversity in America, takes on his Yale Law School colleagues over the issue of military recruiters. Schuck points out (as I have) the hyprocrisy of professors who want to assert expressive association rights for themselves, but not for, say, Bob Jones University (or the Boy Scouts), and also, correctly I think, concludes that whether or not to interview with the recruiters should be an individual, not an institutional, choice. (Via

UPDATE: I don't think it's wrong, much less hypocritical, for an attorney or plaintiff to rely on a precedent he finds distasteful if it helps his case. However, as the quote from Professor Fiss in my piece I linked to suggests, at least some of the Yale professors are posing as principled defenders of expressive association, when what they really believe in is, to paraphrase Nat Hentoff, "freedom of association for me, and not for thee." Others, like Jed Rubenfeld, apparently believe that the "freedom of expressive association holding in Boy Scouts opens up the possibility of a profound, thorough going attack on the nation's anti-discrimination laws." If so, it hardly seems either wise or moral, from their perspective, to argue for an expansion of Dale in the narrow interest of invalidating the Solomon Amendment. Is the cause of being allowed to discriminate against military recruiters really worth expanding freedom of association, when, according to Rubenfeld, that freedom is "a slogan of the people in favor of Jim Crow" ?

FURTHER UPDATE: Will Baude writes in to point out that Prof. Rubenfeld did not join his colleagues' expressive association lawsuit, but filed a separate pro se brief arguing that the Solomon Amendment amounts to compelled speech. Kudos to Prof. Rubenfeld for intellectual consistency!

Word Formation:

A reader writes, apropos my leafleter/leafleteer post:

You write, "standard word formation rules thus give us 'leafleter.'"

Actually, I'm pretty sure standard word-formation rules would give us "leafletter," as in "bat -- batter," "spit -- spitter," etc. The double consonant signifies that the preceding vowel remains short. Per normal English orthography/pronunciation rules, one would expect to pronounce "leafleter" "leaf-leeter."

Here's the simplest rule I've heard, from my brother Sasha, if I recall: In American English, when a verb ends in a short vowel followed by one consonant (e.g., "leaflet"), then in the "-ed," "-ing," and "-er" forms the consonant is doubled if the accent is on the last (or only) syllable. If the accent is not on the last syllable, then the consonant need not be doubled. It often may be doubled, but the more common American use is to keep it single. (In British English, doubling is more common even in the latter context.)

Hence "getting" and "forgetting" but "targeting," "compelled" but "modeled." There are exceptions (e.g., busing), but this seems to be a good rule of thumb.

The War on Terror,

Jonathan Rauch writes, started on February 14, 1989:

. . . On February 14, 1989, Ayatollah Ruhollah Khomeini, the spiritual leader and revolutionary dictator of Iran, pronounced a fatwa (an Islamic legal judgment) against the British novelist Salman Rushdie. It said:

"In the name of Him, the Highest. There is only one God, to whom we shall all return. I inform all zealous Muslims of the world that the author of the book entitled The Satanic Verses -- which has been compiled, printed, and published in opposition to Islam, the Prophet, and the Koran -- and all those involved in its publication who were aware of its content are sentenced to death.

"I call on all zealous Muslims to execute them quickly, wherever they may be found, so that no one else will dare to insult the Muslim sanctities. God willing, whoever is killed on this path is a martyr." . . .

In January, the Iranian media reported that Iran's supreme leader, Ayatollah Ali Khamenei, reaffirmed the fatwa, telling Muslim pilgrims that Rushdie's killing would be authorized by Islam. British officials, reported The Times of London, "anxiously played down" the comments, noting that the Iranian government had not changed its position.

Just so. Khamenei spoke not for a government but for an insurgency, one with millions of followers around the world. The West could not have understood that in 1989, but it cannot fail to understand it today.

Oscars Flashback: With the Academy Awards on Sunday, I keep thinking back to sitting on the Red Carpet at last year's show and The Night Before Party that I attended with my wife. I thought some might enjoy my reposting this VC post from February 29th, 2004:
THE NIGHT BEFORE: So while in LA for the Southern California leg of my book tour, my wife and I attended the Second Annual "Night Before Party" at the Beverly Hills Hotel. It was an amazing scene, and hard to believe that so many A-list celebrities ever attended the same event. The pool had been covered up, and a tent erected over it. Reebok was giving guests their choice of shoes, and Krispy Creme served donuts covered with ice cream or topped with strawberries and whipped cream. Cell phones and cameras were not permitted, but security only stopped you from bringing in cameras--or camera phones. I did not hear a single cell phone go off the whole night, and only noticed a few people furtively using theirs. The celebrities dressed casually with a noteworthy lack of affectation--except of course for Elton John who sat surrounded by younger men. No one wore sun glasses at this evening event. All the celebs were gone by midnight.

It turns out I am very bad at recognizing even very famous actors in a crowd, but fortunately my wife is excellent at spotting them. Were it not for her, I would have missed most of the following (don't write me about misspelling their names): Sylvester Stalone (a little waxy looking), Tim Robbins & Susan Sarandon, Martin Short, David Spade, Ben Kingsley, Ben Stiller, Courtney Cox & David Arquette, Steven Speilberg, Will Smith (with body guards), Rene Zellweger, Christian Slater, Angelina Jolie, Patricia Clarkson ("Pieces of April," Aunt Sarah on "6 Feet Under"), Michael Chiklis (The Shield, The Commish), Kristen Davis (Charlotte on "Sex and the City"), Bonnie Hunt, Antonio Banderas & Melanie Griffith, Luke Wilson, Tom Arnold, Roma Downey ("Touched by an Angel") who touted her lates made-for-TV flick to us, John Spencer ("The West Wing," "LA Law"), Leonardo DiCaprio, Alec Baldwin, Pierce Brosnan, Clint Eastwood, Kevin Spacey, Bruce Dern, standing nearby his daughter Laura Dern, Tom Hanks & Rita Wilson (the only one we noticed smoking), Kevin Spacey (in a Kangol-style cap), Jill Hennessee (Law & Order), Camryn Manheim ("The Practice"), Ted Turner and Donald Trump (hair looking a little more like normal hair in person). It was very crowded, especially at the beginning, and we must have missed a lot more who were there. We know Tom Cruise left just before we arrived, and we somehow managed not to see Michael Douglas with Katherine Zeta-Jones though we were told they had stood in the same spot for nearly an hour.

Most of the males actors are much smaller, not just shorter, than you expect--especially Banderas--except DiCaprio who you'd expect to be small, but is really normal size and height. Alex Baldwin is a bit bulky of course, and Pierce Brosnan is a remarkably big guy, who is not shy about wearing gray stubble. The tallest was probably Tim Robbins, but taller than you'd expect were Tom Hanks and Kevin Spacey. Not surprisingly on the tall side were Ted Turner, Donald Trump, Will Smith, Bruce Dern, and Clint Eastwood.

I asked Eastwood if he was a libertarian, and he replied that he agreed with the libertarian philosophy, but had not changed his registration from Republican, though his wife had. Besides, he noted, that used to be the philosophy of the Republicans. Though it seemed like he was warming to the subject, I did not get to ask him what made him think so because Jeffrey Katzenberg of Dreamworks and one of the hosts of the party (and another little guy), just then interrupted to thank Eastwood for coming, so we moved on.

It was a pretty awesome to see in one night, in one place, and very informally, more prominent actors and actresses than we will ever see in our whole lives--except for on the Red Carpet later today at the Oscars. But that's another story.
In this report, I neglected to mention that, after Katzenberg interrupted our conversation with Eastwood and we started to move on, Eastwood turned away from Katzenberg and said to my wife, "It was very nice to meet you" (just the way Clint Eastwood would say that). In the context of the crowd scene at that spot, it was a very classy move.

At the party, the actors were really expert at not making eye contact, as you might imagine. The only two I recall making eye contact with me as I walked by were Courtney Cox (two different times for so long that I smiled back--I must have looked like someone she knew) and, yes, Elton John. 'Nuf said about that.

The next day we sat on the red carpet in the bleachers. After the attendees exit their cars, they must have their credentials checked before they can walk the red carpet (which all attendees except for presenters are required to walk). We sat on the shorter stretch of red carpet closest to the street and before the big security tent that all attendees must enter before walking the longer portion of the red carpet that you see on TV.

From this vantage point we could see the attendees drive up and leave their cars. Lots of people you would not recognize drove their own cars (which were valet parked), most arrived in limos (with a few driving up in chauffeur-driven Toyota Prisms). More limos in one place than you could possibly imagine. Eventually, SIX SOLID LANES OF LIMOS as far as we could see. We were told that they bring limos in from Las Vegas just for this one night.

For a long time attendees drifted in slowly but as show time approached, a pretty huge crowd forms waiting to have their IDs checked before they can get into the line on the red carpet to enter the security tent. We then discovered that the A list matters here too. When Michael Douglas and Catherine Zeta-Jones arrived, for example, security somehow manages to spot them as the exited their limo. They were then escorted through the crowd of academy members, past the ID table, and to the end of the line on the red carpet before the security tent; they did have to wait in THIS line on the red carpet itself.

While in the line all the stars smiled and waived to the bleachers and were applauded in return. No one ignored the stands if their name was shouted out. Unlike the previous night which felt like a real party where we all were dressed casually while standing around side-by-side and queing together for drinks, food, and free Reeboks, this felt like, well, a movie in which they played the waiving movie stars and we played the cheering fans.

Of course, we could not recognize most of the attendees. But I remember one time when three attractive young women were walking in (before the line formed) one of the women started pointing to her friend and shouting to the stands who she was or what movie she was in. Not being recognized by the fans, while others standing next to you are being wildly applauded, must feel humiliating for some of the actors in a very status conscious business. I'll bet some really hate the red carpet.

I know that, after our experience last year, watching the Oscars on TV will never be the same for us.
Intellectual Orthodoxy at Berkeley and Stanford:

Dan Klein has a newspaper column summarizing his research findings on the intellectual orthodoxy at Berkeley and Stanford in the Palo Alto Weekly newspaper.

From the article:

The popular vote for President went 48 percent Democrat and 51 percent Republican. This nearly one-to-one national diversity is unlike colleges and universities, where a one-party system prevails.

We have conducted a scholarly study of voter registration and find that among Berkeley faculty the Republicans are outnumbered 10 to 1. At Stanford the ratio is 7.6 to 1. Lumping both together gives 9 to 1. Talk about a lack of diversity! If this were a gender, race or ethnic-background study it would be considered almost evidence of discrimination.

Most striking, is that the faculties are becoming less intellectually diverse over time. At Berkeley, tenure-track hires at the Assistant Professor level are 30 to 1 Democratic to Republican and at Stanford it is 12 to 1. For Associate Professors, at Berkeley it is 64 to 1 and at Stanford the ratio is infinite--Stanford does not have a single Republican among its Associate Professors (and 40 Democrats).

Dan says that if this was a gender, race or ethnic-background study, it would considered "almost" evidence of discrimination. I think this understates the case--if the ratio of men to women hires at Berkeley was 30 to 1, that would almost certainly constitute a prima facie case of discrimination. Or to put it more practically, if this was the ratio of male to female hires at Berkeley, I don't think a hypothetical plaintiff would have too much trouble finding a lawyer who would take the case on contingency.

And to think that one reason that Larry Summers is in hot water because only 4 of the last 32 tenure-track hires at Harvard were women. I'm sure Stanford's students and faculty would be overwhelmed with joy at an 8 to 1 ratio of Democratic to Republican hires.

You can find the longer version of Dan's research on his homepage here.


Some clarifications in response to reader emails: First, the observation that the intellectual orthodoxy is getting worse is implicit in the numbers I originally quoted, but not obvious. At the Full Professor ranks, the ratio is 8 to 1 and 6 to 1 Democratic to Republican at Berkeley and Stanford respectively. The observation, thus, is that as full professors retire, and are replaced by the Associate and Assistant Professors, this ratio will worsen over time.

Second, it is true that Republican and Democrat imperfect proxies for intellectual diversity. For instance, many libertarians don't vote, and if they do, they don't register for any party--although I doubt there are so many uncounted libertarian professors at Berkeley and Stanford that it skews the numbers. But that's why it is important to read this article in connection with Klein's other paper, where he does a more nuanced analysis of public policy views, and discovers that views on particular public policy issues match up very closely with this study on Democratic vs. Republican professors. In that paper, he also captures a greater cross-section of instiutitions, beyond just Stanford and Berkeley. So the measure here just gives an easily-quantifiable measure that seems consistent with a more qualitative nuanced analysis.


Of course I'm a lawyer, so I can't do math, but if 4 of the 32 Harvard hires were women, that would mean there were 28 men and 4 women, which of course, would be 7 to 1 (not 8 to 1). So that's still better than ratio for the entire Stanford and Berkeley faculties and substantially better than for their recent hires.


There seems to be some ambiguity about what I wrote. First, I did not say that there was a bias here. I said that if we saw a ratio of 30 to 1 in a general population that we know to be roughly 1 to 1, this usually will create a prima facie case of bias. Then the the burden shifts to the other side to provide a nondiscriminatory explantion for what is observed. So that, for instance, it may be that there are no Republicans in the applicant pool--but that answer, of course, just shifts the analysis back one step, and has been quite plainly rejected in the context of women and minorities.

Second, and more fundamentally, this is key point--when Harvard hires 7 men to 1 woman, this is met with a blue ribbon panel tasked with the duty of getting to the bottom of things and finding out what is really going on. When Klein find a ratio of 30 to 1 Democrat to Republican, the academy has two responses. First, it simply denies the problem. Second, even if it is acknowleedged, the "response" is faculty lounge speculation and hand-waving about how this might all be rationalized. The irony, of course, is obvious--there aren't actually any conservatives there to participate in the conversation! Where is the blue-ribbon panel at Stanford on intellectual diversity? There may very well be a nondiscriminatory explanation here--but we'll never know unless we actually consider it to be a problem worth investigating and actually do the investigation.

Whatever the correct approach, surely it can't be that in one case we task a blue-ribbon panel of leading faculty members to find out what is going on and to recommend improvements, and in the other we shrug our shoulders and sit around and simply speculate?

Thursday, February 24, 2005

Gorilla Sexual Harassment:

The AP reports:

Two fired caretakers for Koko, the world-famous sign-language-speaking gorilla, have sued their former bosses, claiming they were pressured to expose their breasts as a way of bonding with the 300-pound simian. . . .

The suit claims [the Gorilla Foundation's president, Francine] Patterson pressured the two women on several occasions to expose their breasts to Koko, a 33-year-old female sometimes in situations where other employees could potentially view their bodies. . . . They were threatened that if they "did not indulge Koko's nipple fetish, their employment with the Gorilla Foundation would suffer," the lawsuit alleged.

The lawsuit claims that on one occasion Patterson said, "'Koko, you see my nipples all the time. You are probably bored with my nipples. You need to see new nipples.'" . . .

Forget the legal analysis -- just appreciate the full-on weirdness.

Thanks to Slate's Explainer for the pointer.

Mysterious Bushism:

Slate's Bushism today is:

After all, Europe is America's closest ally.

What's at all funny, odd, or otherwise Bushism-worthy here? There are only two conceivable objections I can imagine here.

1. Bush is talking about "Europe" as an ally instead of particular European countries. Yet Europe, in the sense of the European Union, is indeed an entity of its own. And the European Union is often referred to as Europe.

But of course Bush couldn't have possibly meant Europe in the sense of European Union (or for that matter Europe as a cultural grouping of countries), because . . . . Because why exactly? Because Texans aren't up on modern transnational organizations? Well, let me give you the context, since of course Slate never gives you the context, or even a pointer to the context. (And who can blame it? After all, while Web sites like ours can provide links to the full transcripts, to assure people that the quotes are in context, old-fashioned paper-based media like Slate don't have that luxury. Oh, wait . . . .)

Here's the transcript containing the "Bushism" but also the following sentences:

After all, Europe is America's closest ally. I said yesterday, and I want to say it again: The European project is important to our country. We want it to succeed. And in order for Europe to be a strong, viable partner, Germany must be strong and viable, as well. And in order for us to have good relations with Europe, we must have good relations with Germany. And that is why this trip is an important trip for my country and for me.

And so I want to thank you very much for the chance to be here, a chance to reconfirm the importance of the transatlantic alliance, and a chance to talk about important issues. Gerhard went over the issues; I will go over them briefly, as well. . . .

No Europhile — or for that matter non-Europhile urban articulate sophisticate — could have said it better: Alliance with Europe, the European project, good relations with Europe, transatlantic alliance.

2. The one possible other objection is that our relations with Europe aren't so hot in some respects now. Yet surely saying that Europe is our closest ally is just the time-honored and quite reasonable diplomatic trope of talking about aspirations of friendship as reality. That's only a "Bushism" if "Bushism" means "A statement characterized by excessive diplomacy."

So what's up here? How could the editor of a major publication, a publication that aspires to being seen as witty but thoughtful and credible, mock someone for a perfectly normal statement like this — and mock him with no further explanation and commentary, as if the statement were so obviously silly that no explanation was required?

UPDATE: A reader writes:

Bushism of the Day may be signalling a sea-change in the Left from regarding Bush as stupid stupid stupid to ironic.

Bush's stating that Europe is our closest ally isn't evidence of his inarticulate nature, but perhaps the statement has an ironic value inasmuch as Bush's policies are cause for the recent rift, at least from BOTD's point of view.

Huh -- I hadn't even thought of that, partly because it's so unrelated to what Bushisms have supposedly been about, and what Jacob Weisberg has said they're about, in this Bush-loathing introduction to one of his Bushisms books. So I remain puzzled: What's so "Bushism" about President Bush's clear, grammatically and semantically unobjectionable, and diplomatic statement? Though, hey, if Weisberg wants "Bushism" to come to mean "a clear, grammatically and semantically unbobjectionable, and diplomatic statement," that's fine by me.

Spectrum Policy in the National Journal:

Spectrum policy is a major research area for me (see here and here, for example), and I've been a bit disappointed that few journalists have shown an interest in writing on the subject with any depth. I've just run across, though, a very good article in the National Journal by Drew Clark called "Spectrum Wars" that manages to be accessible to laypeople, interesting, and — importantly — not too long. If you want to get up to date on current battles over spectrum, you should read it. And if you're not sure why you should care, then at least take a quick look to see what's at stake in these battles.

Shameless self-promotion: I cover some of the same ground at much greater length in the second half of my latest article, Evaluating the FCC's National Television Ownership Cap: What's Bad for Broadcasting Is Good for the Country, for which I am about to send out reprints. If anyone wants a reprint, please email me — benjamin [at]


A reader e-mailed me asking:

I do not know how many regular readers you have, but in addition to your personalized book have you considered some kind of VC t-shirt? May be a bit frivolous, but I would buy a couple.

He then added, believe it or not, "My socially aware and engaged ten-year old son would be thrilled to wear one. And then as a consequence so would my seven-year old daughter." No, I am not making this up just to drum up potential interest.

In any event, I'm tickled pink that some people might be interested in this, and I'd like to do something along these lines, just for fun (I'm pretty sure we wouldn't make more than a few bucks with this). My secret fantasy: One of us is walking through the airport, and we see a total stranger wearing a Volokh Conspiracy T-shirt. Odds? Pretty long, I figure. But, hey, a man's got to dream . . . .

In any case, I believe there are online services that will produce on the fly T-shirts, coffee mugs, mouse pads, and the like. I think CafePress does it, though I've had some glitches accessing their site, but I'll investigate things in more detail in a few weeks. So this shouldn't be that hard technically.

The question is what would make for a cool design. I expect that it should have our green-and-white header, but it might be nice to have something else — probably some amusing catchphrase, but I don't really know. If anyone has any design ideas, please post them in the Comments.

By posting the ideas, you're giving us a license to use them, though if we use yours, we'll naturally thank you on-blog, and send you a free goodie (T-shirt, coffee mug, or whatever else you choose of what we'll ultimately be offering). Remember, our generosity is legendary, which means semi-mythical.

Another Wording Conundrum:

Leafleter (as I wrote) or leafleteer (as the editors made it)? Quick LEXIS and google searches reveal a near tie, and I don't feel strongly on the subject, so I defer to the editors.

But I hadn't even thought of "leafleteer" as an option, though I take it the analogy is to "pamphleteer." (I'd never say "pamphleter," but that's probably because "to pamphlet" is rarely used as a verb, while "to leaflet" is often used that way, and standard word formation rules thus give us "leafleter.")

Guns and Reason

My new column for summarizes the 20th century history of blacks using firearms to protect their communities from white rioters. Black self-defense was explicitly approved by leaders such as W.E.B. DuBois, A. Philip Randolph, Roger Wilkins, Daisy Bates -- and Martin Luther King, Jr.

Also recently published in is a review of Abigail A. Kohn's book "Shooters: Myths and Realities of America's Gun Cultures." Kohn is an anthropologist who compares and contrasts the gun cultures of California and Australia. The review is written by my summer intern from 2004, Eric Dzinski.

Because I Write in English, Not Latin, Dammit:

Just got an edit in which my "indexes" — referring to the indexes at the backs of books — was changed to "indices." I promptly changed it back.

I don't feel that strongly about this (the forcefulness of this post's title is mild hyperbole), but I prefer to follow the English "-es" plural over the Latinate versions when possible. Sometimes only the Latin form may be common, and sometimes I'm just so used to the Latin version (consider "matrices," which is much more common than "matrixes," and I've thus heard mostly the former and rarely the latter). But when the two forms are equally common, I like to stick with English idiom.

I realize that some people will think that I don't know the Latin version, but I can afford to live with that. Nothing wrong with "indices," mind you (though my sense is that it's more common for the plural of a mathematical index than for the plural of a book index); but when in doubt, I try to avoid the Latinate.

The same journal, by the way, suggested that I change "ubermensches" to "ubermenschen" (though that might have been a bit of pedantic humor). No dice, Kameraden.

By the way, "octopi" as a plural of "octopus" appears to have originated from a misunderstanding of the word's etymology (see the Oxford English Dictionary folks' comment on this), except to the extent that it has simply been a bit of a joke. It's quite acceptable English now, but I bristle at it, and prefer "octopuses," if only to annoy the octopi fans.

UPDATE: Reader Dave Neumann writes that the American Society of Indexers uses "indexes." He adds: "This usage also surprised me when I started working on a Masters degree in Library Science. I come from an engineering background where 'indices' is indeed more often used. You're right about that being more common usage in mathematics."

Stuart Buck On Text and Takings: Stuart Buck responds to my prior post about textualists and the Takings Clause:
[Kerr's] argument is the equivalent of the following: "The Fifth Amendment prohibits the government from putting someone in jeopardy of 'life or limb' twice 'for the same offense.' Granted, this prohibits the government from prosecuting someone twice for the same offense, but it doesn't prohibit the government from prosecuting people for no reason at all. Thus, if you're a textualist, you have to admit that the 5th Amendment allows the government to prosecute innocent people willy-nilly."
A few thoughts. First, I should have been clearer in my first post that I don't think a textualist has to say that a taking for "private use" does not trigger a right to just compensation. The text does not compel a distinction between public use and private use; the more sensible of the available textualist readings is that any government use is a public use triggering just compensation, and the phrase "public use" just means "by the government." The part that interests me is the claim that the government cannot take property for private use; I find this claim quite appealing, and it may be persuasive based on the original intent of the Fifth Amendment or (perhaps more likely) other provisions of the Constitution, but I'm struggling to see it in the text.

  Second, to the extent it matters I don't think Stuart's example quite proves his point. "Offense" in the Fifth Amendment means criminal act; the Fifth Amendment prohibits the government from bringing criminal charges against someone twice for the same criminal act. If the government started bringing criminal prosecutions against people for a crime that Stuart would deem "no reason at all," then this "no reason at all" would be the "offense" for the purposes of the Fifth Amendment. Alternatively, if the government starting hauling people to jail outside of the criminal justice system [Update: not under a war powers authority, but just because the government didn't want to give someone access to the courts], then that would be a violation of the Sixth Amendment jury trial right [and Due Process] the first time, not a Double Jeopardy violation the second.

  Finally, I realize I am being sloppy by not being explicit about exactly what version of textualism I have in mind. As with any school of legal interpretation there are as many versions as there are commentators. I am doing that because I am more interested in exploring the general tension between the text and the intepretations endorsed by many self-described textualists than in the details of any one approach.
Spirit of America:

I just came across an organization called "Spirit of America." Others may have already heard of them, and I don't know much about them, but they seem like a worthwhile and interesting group. Their website describes their mission as follows:

Spirit of America helps Americans serving in Iraq and Afghanistan assist people in need. We fulfill requests from American personnel for goods that improve the lives of local people and thus help advance freedom and peace.

We have provided school and medical supplies, sewing machines, hand tools, water barrels, clothing, soccer gear and toys in response to needs identified by American personnel. We contributed equipment to Iraqi-owned television stations to establish a better alternative to Al Jazeera. We helped Iraqi men whose arms were amputated by Saddam Hussein get a new start on life.

What caught my eye initially was their efforts to protect bloggers and alternative media in trouble spots in the Middle East, which then led me to learn all the other charitable things that they are doing.


As usual, I'm the last one to hear about stuff like this. Nice piece by Daniel Henninger on Spirit of America last spring in OpinionJournal.

Housing Needed in Ann Arbor:

I'm going to be a visiting professor at the University of Michigan Law School for the 2005-2006 academic year. My wife and I are therefore looking for a house to rent in Ann Arbor, furnished or unfurnished, starting approximately August 1 and ending approximately May 31, with some flexibility on either side of both dates. We'd prefer something close to campus and reasonably large (1800+ square feet). If you have any leads, please send them to me at dbernste [at sign]

Parties Are Not Sports Teams--Parties are the Playoffs: There has been much blogospheric reaction to my post yesterday on the Libertarian Party (click trackbacks to read it). And I have received much thoughtful, cordial and sympathetic email--too much to respond to while on the road here in Alabama. I found the post that best defends the position I was suggesting was by Neo-Libertarian. Before adding some additional thoughts of my own, here is just a bit of a very long and well-reasoned post with some comments by me inserted (read it all, as they say):
Now, he's a libertarian in the GOP [This is wrong; I am not in the GOP--REB] and has argued this for at least a few years if not longer. [However, this is correct.--REB] That might put him in a suspect position to die-hard Libertarians. I, however, have been a member of the Missouri LP, registered Libertarian in Virginia, and have signed onto the Free State Project. Perhaps this inoculates me against some of the potential criticisms when I say I agree at least in part that splitting libertarians into two or three or four different parties is silly.
While it might be ideal to focus attention on one party the way the Free State Project hopes to focus attention on one state, I think that this is unrealistic. To take a single example, given the degree to which some libertarians are antiwar, it is too much to expect libertarians to support the party that today more strongly considers us in a literal war against islamo-fascism. My original point is that BOTH parties would be more libertarian at the margins if more libertarians were activists within them.
The most active and energetic libertarians tend to split and join the LP. This means that literally hundreds and thousands of activists, as well as over a million votes (combined for the House races the LP contests) are siphoned off from the GOP.
The key I think is the activists. Some people want to advance liberty by writing books and public speaking. Others want to get into the trenches and organize politically. Some of the most energetic libertarian in this latter group have been drained from both parties, leaving the fields there more open for activists with different agendas.
As it stands, a great deal of people are alienated from the idea of even calling themselves libertarian because the GOP and LP are separate. There are a lot of people with libertarian sympathies who would be much more willing to follow our ideas if we were in their party.
This is an important insight that goes beyond my original post. Americans view political parties as they do their sports teams. Even Independents tend to root for one party over the other. Libertarians have defined themselves as a different team that looses pitifully--and Americans do not like losers. And when you say "libertarian" to them, they think you are referring to the Libertarian team. I think this is why many libertarian-inclined citizens deny they libertarians. That is not their team.
As it stands, a million dollars dunked on a Senate race would probably end up with a Libertarian struggling to break 15% at the polls. But $500,000 in a Senate primary could tip a libertarian-friendly legislator to victory over a more moderate or social-conservative opponent.

This is how Club For Growth has been successful. They pour their money into primaries and try to influence the GOP outcome. This is an important party of the electoral process, and one in which libertarians could be very effective.

Joining the GOP means we bring to the table a lot of things. On Election Day, our current numbers might appear quite small. But on the primaries, we have greater power - a group of active, interested, educated people who will go out and vote. We could have a lot to say about which candidate is nominated. . . .

I know the LP won't dissolve, but I think it ought to consider reforming as an interest group. It already has a website, contacts and affiliates in every state. There is a lot to be done and the LP has a lot going for it. We just need to refocus. . . .
This is VERY important. Incumbents are very conscious of potential primary challenges. If the Libertarian Party chooses to continue--as it will--it can save the effort of registering itself as an official party in the states, and can run libertarian candidates in the primaries. Even the treat of this is likely to get a response from an incumbent. (Another idea I have pushed in recent years that is somewhat inconsistent with the thrust of what I am suggesting here is to run major party candidates in general election against unopposed incumbents. So libertarians would run a Democrats against unopposed Republicans and vice versa. This would assure their candidates of more press coverage and a much larger share of the votes.) He concludes:
Personally, I haven't decided to call myself a Republican yet (I'm far too uncomfortable with the South, for instance) but I'm definitely considering working with libertarian candidates in the GOP. I'd also like to help my favored Republican to win the 2004 nomination. So while I'm not a Republican, I think it's time for libertarians to consider pooling together as much of our resources as possible into the best bet for liberty: two-party politics.

A lot of libertarians and third-partiers LIKE losing because it reinforces their view that the center is corrupt and that they themselves are purists on the fringe. So be it. I'd rather see progressively greater and greater support for liberty from the center of political debate, and I think something like the Republican Liberty Caucus might be the way to do just that.
Bruce Bartlett wrote to remind me that he has been urging a Libertarian Caucus approach for many years.

FINAL THOUGHTS: In our political system, you have to be a member of a political coalition to influence its direction. This means working and compromising with people with whom you share some goals and disagree about others. This is the insight behind Groiver Norquist's vision of the "leave us alone" coalition in the GOP that advances the disparate interests of its members, while marginalizing those who want to advance their agenda by interfering in the lives of others.

Like other Americans, however, many libertarians think of political parties like sports teams. They want their own team to root for and cannot root for the other teams. Voting Libertarian gives them psychological satisfaction, while in the aggregate diminishing their political impact.

Libertarians should stop thinking of parties as teams and think of them instead as the playoffs. In NFL football terms, The Democrats are the AFC and the Republicans he NFC. To get into the Superbowl, you have to survive the season and the playoffs in your respective conference. In effect, Libertarians want to form their own league which no one but themselves is interested in watching. And they assure themselves of never making the playoffs much less the Superbowl.

OK, enough of the sports metaphor. It does not work completely anyhow. Perhaps it is better simply to say that libertarian political activists (and voters) do not have to buy into all of what either party stands for today to realize that they may more effectively advance their ideals by fighting to move the major parties in a libertarian direction. With the benefit of hindsight, we can say that this has not been accomplished by libertarians absenting themselves from the major parties and investing their time and votes in the Libertarian Party.

Related Posts (on one page):

  1. Parties Are Not Sports Teams--Parties are the Playoffs:
  2. Libertarians and Republicans:
Book Recommendation:

Just finished John Scalzi's Old Man's War, which was very good. I bought it in hardcover; cheapskate that I am, I rarely do this except with authors whose work I know well, but I made an exception because of Instapundit's and Professor Bainbridge's recommendations. They steered me well; really good science fiction, fresh and well-crafted.

Oddly, the weakest parts of the book are the first few chapters, which weren't quite as tightly written as the rest of the book. If you find yourself disappointed at first, stick with it; I think you won't be disappointed.

Wednesday, February 23, 2005

Balkin on Johnson v. California: Jack Balkin has some thoughts about how different Justices came out in yesterday's decision in Johnson v. California, a case involving racial classifications applied to prisons. I haven't read the opinions yet so I don't know whether I agree, but Jack's perspective on the Court is always worth reading.
Textualism and the Takings Clause: I don't know much at all about the Takings Clause, so I hope the Takings Clause experts out there can help me (and inform the VC's readers) with a very basic question I have concerning the issues raised in the Kelo v. City of New London case. In Steve Bainbridge's post linked to by Randy below, Steve notes the text of the Takings Clause:
Nor shall private property be taken for public use, without just compensation.
Steve then adds:
Note that the Takings Clause has two independent requirements: (1) just compensation must be paid; (2) the property must be taken for a "public use." This second requirement means that the government may not take away your property to give it to some other private individual (or company) who will then devote it to their own personal or business use.
I have no expertise at all in the Takings Clause, but my understanding is that this is more or less an accurate summary of exsiting Supreme Court doctrine. As best I recall, the Supreme Court has interpreted the Takings Clause this way for a long time.

  At the same time, this isn't what the text of the Takings Clause actually says. The text of the clause says that if private property is taken for public use, then just compensation must be paid. The Constitutional text doesn't address takings for private use at all. Not only would such a taking seem to be allowed by default, but the Constitutional text doesn't even seem to require the government to pay just compensation for it. The text doesn't say, "Private property shall not be taken for private use, nor shall private property be taken for public use without just compensation." It only says "Nor shall private property be taken for public use, without just compensation." Obviously there are good policy reasons why we might not want the Court to read the text this way, and there are also reasons why someone might or might not be a textualist. Still, if you're a textualist it seems that you're kinda stuck with that reading.

  My question is, what am I missing? How can a textualist agree with the Court's current reading of the Takings clause? My very quick look at the cases suggests that the Court picked up the "public use" element as a requirement for a taking back in the days when the Justices limited the legislature's authority to the "police power"; the idea is that a taking has to be a public use for it to fall within the police power. But the "police power" limitation wasn't rooted in the text of the Constitution, either. It seems to me that a good textualist would say that either the taking in Kelo was for "public use" and required comepnsation or was for private use and doesn't require compensation at all. Oddly, though, I can't seem to find any self-described textualists who interpret the Takings Clause this way.

  I have enabled comments.

Libertarians and Republicans: There is an interesting exchange between Ryan Sager and Ramesh Ponnuru about the role of libertarians in the Republican coalition (Instapundit has the links here). This is a complicated subject about which I would have a good deal to say if I had the time to compose a careful post. But I do want to make one point.

In hindsight, I think that the creation of the Libertarian Party has been very detrimental to the political influence of libertarians. Some voters (not many lately) and, more importantly, those libertarians who are interested in engaging in political activism (which does not include me) have been drained from both political parties, rendering both parties less libertarian at the margin.

Put another way, in proportional voting parliamentary systems, there are many political parties and governments are often formed by organizing a coalition in which they must cater to smaller parties, especially when holding a only slim paliamentary majority. In a winner-take-all first-past-the-post electoral system--like we have in elections for both Congress and the presidency--the major parties are each themselves coalitions of political interests. To win an election, they need to gather a coalition of voters to get over 50% of the vote, so the marginal voters become important to them. Of course, they cannot make efforts to reach marginal voters that completely alienate their "base" (which is one the problems facing Democrats at the moment).

While some libertarian political activists are certainly Republicans and Democrats, the existence of the Libertarian Party ensures that there are fewer activists and fewer voters in each major party coalition than would otherwise exist. Therefore, each party's coalition becomes less libertarian. I do not mean to exaggerate the extent of this effect. But even a handful of political activists in local and state party organizations can make a big difference. Whatever one thinks of the initial creation of the Libertarian Party, its continued existence seems to be a mistake for libertarians.

Related Posts (on one page):

  1. Parties Are Not Sports Teams--Parties are the Playoffs:
  2. Libertarians and Republicans:

Tuesday, February 22, 2005

Bainbridge on Takings: Nice post today by Steve Bainbridge on Kelo vs. City of New London: Will Leviathan Prevail?
The Constitution in 2020 Conference: This conference sounds very interesting. It is certainly an all star line up. As there are students organizers for this event, I assume it is not limited to faculty but, if you are a student, you may want to check before registering. The home page is here.

The Constitution in 2020

April 8-10, 2005 * Yale Law School

A conference bringing together leading figures in American law to catalyze debate among progressives about the Constitution's future.

Conference weblog:

It is time for progressives to set a constitutional agenda for the 21st Century. In the early days of the Reagan Administration, a coalition of conservative groups produced a white paper known as "The Constitution in 2000" which, by taking a long view rather than focusing on the immediate issues of the day, was immensely successful in influencing the Constitution under which we now live. If progressives are to rehabilitate that Constitution, they must now, more than ever, articulate constitutional ideals capable of inspiring the next generation. The goal is to set forth a positive constitutional vision for tomorrow, rather than merely to respond to the crises of today. Accordingly the Yale chapter of the American Constitution Society, the Yale Law School, Yale's Arthur Liman Public Interest Program, the American Constitution Society, and the Open Society Institute invite you to a conference on "The Constitution in 2020."

Faculty Organizers:

Reva Siegel (Chair)
Bruce Ackerman
Jack Balkin
Drew Days
William Eskridge
Paul Gewirtz
Robert Gordon
Robert Post
Judith Resnik

America in the World: This theme addresses the challenges posed by the dual issues of terrorism and globalization. Critical issues include: the tension between democracy and globalization, national security, warmaking, immigration, and the interaction of foreign law with the U.S. Constitution.

Liberties and Communities: The questions encompassed by this theme include the relationship between the Constitution and the broader social fabric of the United States, and in particular the constitutional protections provided to individuals acting alone and as members of various groups. Critical issues include: family, religion, federalism, and crime.

New Politics: This theme focuses on the challenges to democratic processes in an age of economic and technological change. Critical issues include: money in politics, voting rights, media concentration, gerrymandering, and the constitution of the public sphere in a digital age.

Social and Economic Inequality: This theme concerns the constitutional obligations of the government to protect against discrimination and to guarantee minimum standards of living. Critical issues include: the nature of constitutional equality, the causes and remedies of inequality, the disparate roles of courts and Congress in vindicating rights of equal citizenship.

Confirmed Speakers Include: Bruce Ackerman, Melody Barnes, Jeff Berman, Drew Days, Walter Dellinger, Guido Calabresi, David Cole, William Eskridge, Noah Feldman, Owen Fiss, William Forbath, Richard Ford, Paul Gewirtz, Robert Gordon, Stephen Holmes, Dawn Johnsen, Paul Kahn, Pam Karlan, Harold Koh, Larry Kramer, Larry Lessig, Robert Post, Judith Resnik, Jed Rubenfeld, Charles Sabel, Reva Siegel, Jonathan Simon, Cass Sunstein, Judge Patricia Wald, Seth Waxman, Robin West, Kenji Yoshino, and more to come.
Things Better Left Unsaid: As Eugene noted below, a lawyer arguing at the Supreme Court this morning finished his argument by saying "I want to leave you with just four words . . . ", at which time his time expired. The Court is very strict about oral argument time; when your time expires, you really have to stop. So the lawyer never got to tell the Court what the four words were.

  SCOTUSblog reports that the lawyer later answered the question on everyone's mind — what are the four words? — when he told reporters what the four words were "Federalism, boundaries, discretion, and precedent." I don't know what book on closing arguments the lawyer got this trick from, but it's hard to think of a worse ending for a Supreme Court argument. (What are the Justices supposed to do upon being left with those words? Are the words supposed to cast a magic spell or something?) As Tom Goldstein puts it, "Ok, so maybe it wasn't such a loss that he didn't get that last line out."
Freedom of Expression in Canada:

I'm about halfway through Democracy Off Balance: Freedom of Expression and Hate Propaganda in Canada. It's not easy reading, but it is a comprehensive, learned, and generally right-headed view of the subject. The views of the Canadian elite on such matters are very similar to the views of much of the American law professoriate and the left-wing of the bar, so the book is valuable not only for those interested in Canadian and comparitive law, but for those who are wondering what a left-wing U.S. Supreme Court would likely do to the First Amendment. This NRO piece of mine has more on disturbing trends in Canada.

Broad Overview of the American Legal System:

A reader writes:

What one book would you recommend that gives a broad overview of the American legal system? Even if I don't go to law school, I need the background just to get a better understanding of public policy.

It's a great question, but I don't know the answer (nor do I know whether such a book exists or even can exist). If you have a recommendation, please post it in the comments, which I'm enabling for this post.

Note, though, that my correspondent and I are looking for a clear, objective description of the legal system as it is. We're not looking for condemnation or praise of the system, or descriptions of the system as it ought to be -- those can be great, but they aren't the subjects of this particular question.

The Rehnquist Legacy: Lawprof, blogger, and former Rehnquist clerk Rick Garnett offers his thoughts on the likely legacy of William Rehnquist over at Legal Affairs; in the same issue, lawprof and former Souter clerk Kermit Roosevelt offers a different take.
Supreme Court Line-Up:

In today's Smith v. Massachusetts, five Justices (Justice Scalia, joined by Stevens, O'Connor, Souter, and Thomas) took the broader view of the Double Jeopardy Clause, and four dissenters (Justice Ginsburg, joined by the Chief, Kennedy, and Breyer) took the narrower view.

I can't recall any other Supreme Court case with precisely this lineup. There have been similar lineups; consider part of the Booker/Fanfan Sentencing Guidelines decision, in which Ginsburg, the Chief, O'Connor, Kennedy, and Breyer were in the majority, and Scalia, Stevens, Souter, and Thomas were in the dissent. But I don't remember precisely this lineup. If you can think of a case in which the Justices split exactly this way, please e-mail me at volokh at

UPDATE: Anton Metlitsky of the Harvard Law Review writes that he "just looked through the Harvard Law Review's Rehnquist Court Statistics issue that we published last November. At least within the past ten years (since Breyer took his seat), Smith is the first occurrence of a majority made up of Stevens, O'Connor, Scalia, Souter, and Thomas. See 118 Harv. L. Rev. 510, 521 (2004)." Dierk Meierbachtol echoes this, though seemingly based on less conclusive research. Meierbachtol also writes:

This got me thinking about other combinations we've never seen on this iteration of the Rehnquist Court. For example, my LEXIS name search shows that Stevens, O'Connor, Scalia, Thomas, and Breyer have never formed a five-justice majority. And neither have Stevens, O'Connor, Scalia, Thomas, and Ginsburg.

Getting Academic Legal Writing Quickly:

Several people have e-mailed me to complain that promises (threatens?) that the book will be shipped in one to three weeks. My publisher regretfully tells me that this is the way amazon operates with some books. If you need the book quickly (and I'm absolutely sure that you do!), go to Legal Books Distributing, which says they'll ship immediately; my publisher says they're quite reliable. (Silly interface glitch: If you enter the book title in quotes, it won't find it.) If you want a personalized copy, follow the instructions here.

I suspect that Legal Books Distributing would also be good for other legal books that amazon takes too long to ship.

New Blog Summarizing New Cases Involving the Internet: -- looks useful. Thanks to Paul Hsieh for the pointer.

USA Today Story on the Supreme Court's "Public Use" Case:

My father (Vladimir) pointed me to this story on the Kelo case that was then about to be argued. It's not a bad story, but the one thing it omits is that the litigation has been shepherded throughout by the Institute for Justice, a public interest law firm that has for 15 years been mounting a concerted campaign for broader property rights protections. I believe they're helping the Kelos pro bono. (My brother Sasha worked on the Kelo case when he was an intern for IJ a few years ago; and the really shameful thing is that the USA Today story didn't mention him though I suppose I understand why that detail wasn't included . . . .)

The article mentions amicus briefs filed by Reason Foundation, the NAACP, and AARP, so the article is pretty detailed. Wouldn't it have been interesting to also mention the organization that has been litigating this, rather than just referring to "Scott Bullock, an attorney for the property owners" (Scott is a long-time IJ employee), and to note that this is part of a concerted litigation strategy, and not just a random case? This is obviously not some awful travesty, and I realize that reporters operate under huge word pressures. Still, I thought the omission was worth noting.

UPDATE: Note that the Knight-Ridder story has a broader discussion.

Funny Item from Today's Property Rights Arguments:

SCOTUSblog (Tom Goldstein relaying Marty Lederman's accounts) reports that the argument generally went badly for the broader-property-rights side -- regrettable but not unexpected -- but also adds this item:

The moment of the day came in Kelo when the city's counsel attempted to close by saying, "I want to leave you with just four words," then his time expired. (Although he did say -- using more words, "I see my time has expired so I won't be able to tell you them.") Justice Kennedy then asked the plaintiff's lawyer on rebuttal, "You don't happen to know what the four words were?" Regrettably, he didn't.

Why Don't Bookstores Routinely Post Listings of Award Winners?

Why don't bookstores routinely post listings of award winners — Hugos and Nebulas for science fiction, Edgars for detective stories, and so on? You'd think that this would help sell books, since they give potential buyers something they could try, with some likelihood that the book would indeed be good. True, some subsequent editions of a book indicate that the book won an award, and many books by award-winning authors note this; but to see that, one has to have come across the book in the first place. A list would help readers who don't even know which books to look at.

I hear a few bookstores do post such lists, at least for some categories, but why isn't this standard operating procedure in the trade? Just take a list and stick it to the proper bookshelf. You don't have to mark the places where each winner sits on the bookshelf, which will require you to move each marker when the shelves are rearranged. Simply put up the lists and then update them each year (and if you forget one year, it's no disaster).

Even amazon, which once had the lists easily available (I discovered Lois McMaster Bujold, one of my favorite SF writers, through an amazon link to the Hugo winners) no longer seems to provide them. [UPDATE: Reader Bill Harshaw points out that the lists are available, if one clicks on Books and then clicks on "Award Winners" under "Around Our Bookstore." But it's not easy to notice, and an ordinary search for something like "Hugo Award Winners" doesn't produce it; wouldn't it have been sensible for amazon to have its search engine yield the list as well as books that somehow match that search?]

I just don't see why bookstores are missing what strikes me as a great sales-boosting tool.

UPDATE: Reader Ben Skott writes:

I worked at Barnes and Noble for two years, during which time I rose to being in charge of our fiction and sci-fi sections. They thought my love of reading, my nearly encyclopedic knowledge (at that time) of who wrote what books, and my scary ability to convince people to buy books they'd never heard of on my recomendation would make me a good section runner.

Anyway, I started putting up the Hugo and Nebula lists in sci-fi, along with an, "If you like X, try Y" list that I made up. Sales of books on those lists went up almost immediately, to the point where I was actually having to up our standard order of Ender's Game (whcih is crazy considering we already carried tons due to it being required reading in local high schools).

I wanted to do something similar with general fiction, at least posting Pullitzer and Nobel winners, but they wouldn't let me. Almost everything in that store is dictated from above. Sci-fi was thought by my manager to be small enough that I could put a personal touch on it. General fiction, on the other hand, was too big and important. He wouldn't stray an inch from the conformed standards. All of which serves to not at all answer your question. I don't know why Barnes and Noble corporate won't post such lists, but in my experience they do their best to not help themselves sell books.

Another reader points out that "there are a LOT of marketing considerations that go on in the big chains -- to the extent that nearly every space is spoken for. A publisher will pay rather big money to have, for instance, an endcap for one month; what that entails is contractually mandated, includes what books shall be presented, what text can be used to advertised, agreements as to competing advertising, etc., etc." Still, my experience has been that there are some empty places where a list can be posted.

Justice O'Connor Bobblehead:

Going once...

Many Thanks to Creighton Law School:

Creighton Law School was kind enough to invite me out to give their annual Koley Lecture this year, and I much enjoyed the visit (plus the opportunity to give my talk on Academic Legal Writing to the Creighton Law Review). I was particularly pleased because I've long admired the inaugural speaker in the lecture series, Dean Rod Smolla, who gave the lecture last year.

Another Academic Scandal,

this time in Germany. According to the Deutsche Welle site,

A German anthropology professor has resigned after a Frankfurt university panel ruled he made up data and plagiarized works of colleagues. Experts said knowledge about human evolution has to be revisited as a result.

According to the commission's findings, Reiner Protsch von Zieten lied about the age of human skulls by dating them back thousands of years. He is also accused of trying to sell specimens that belonged to the university and plagiarizing the work of colleagues.

"The commission finds that Prof. Protsch has forged and manipulated scientific facts over the past 30 years," a university statement read.

The report also said Protsch was unable to properly employ methods to date specimens. He allegedly presented skulls that he said were tens of thousands of years old even though they belonged to people who died just a few hundred years ago. . . .

While Protsch, 66, did not comment on the commission's findings after they were publicized, he already attacked the investigation in an interview with Frankfurter Neue Presse on Jan. 14. . . .

Trust no-one, folks, not even professors. Oh, except us, of course. Naturally. (Thanks to Don Kates for the pointer.)

UPDATE: David Gerstman notes that I've been scooped by Scrappleface. "The inquiry found that one skull, which Mr. Protsch claimed came from a 27,400-year-old human fossil, was actually still attached to the living body of a departmental colleague. 'He's much older than he looks,' said Mr. Protsch. 'My data shows that he may be the missing link between Piltdown man and today's homo sapiens.'"

Monday, February 21, 2005

Planning for A New Chief: Tuesday's New York Times has a notable article on the Administration's plans for the replacement of Chief Justice Rehnquist:
  [F]or senior White House officials, as well as a handful of others who follow the court closely, a working assumption about what is going to happen has already taken shape. The strong expectation, senior administration officials and others said, is that Chief Justice Rehnquist is making his best effort to serve out the remainder of the term that ends in June before resigning. And the only question, they say, is whether the 80-year-old chief justice, who is suffering from thyroid cancer and the effects of his treatment, will be able to do so.
  The people who said that this was the assumption in the White House included senior administration officials, senior Congressional officials and people who have been consulted by senior White House officials.
  Top White House officials have discussed the situation, one of those people said, and have concluded that they will have to be ready for President Bush to make known his intentions for replacing the chief justice no later than June but possibly sooner. They have prepared ever-narrowing lists of candidates to be nominated for the court, one official said.
  . . . .
  . . . [I]t is improbable that the expectations about Chief Justice Rehnquist stem from any direct signal from him. Rather, it is the combination of several factors, including his age and illness and his statement years ago that he well understood the tradition in which justices try to leave when the White House is occupied by a president of the same party as the one who nominated that justice.
According to the Times, the four key names on the Administration's short list are: 1) Michael W. McConnell of the United States Court of Appeals for the 10th Circuit, 2) John G. Roberts of the United States Court of Appeals for the District of Columbia, 3) J. Harvie Wilkinson III of the United States Court of Appeals for the Fourth Circuit, and 4) J. Michael Luttig of the United States Court of Appeals for the Fourth Circuit. Mentioned as "[a]nother possible candidate" is Samuel A. Alito of the United States Court of Appeals for the Third Circuit.

  The notable part about this short list is that the candidates are the intellectual heavy hitters culled from previous lists. All four of the candidates on the primary list are themselves former Supreme Court clerks, and they are widely considered to be some of the brightest stars in the federal judiciary. Alito has stellar credentials and is right there with them, too. There isn't a dud in the group.

  Which judge the President will select for the Court likely depends on what kind of Chief Justice the President wants to see. Wilkinson probably would be the most like Rehnquist: a reliable conservative but with strong tactical instincts. Luttig has the harder ideological edge, which is an asset if there are more openings for Bush to fill but a potential liability if he needs to keep Kennedy and O'Connor on board. Both Roberts and McConnell are brilliant, articulate and could be intellectual leaders on the Court for a generaton, but both are also fairly new and relatively untested as lower court judges. Alito would be a reliable conservative and could excel at building consensus across the ideological spectrum.

  At this point, my own preference is John Roberts first and Michael McConnell second. I think Roberts and McConnell are the two judges on the short list with the strongest potential to be "great" Chief Justices.

  I have a preference for Roberts not only because he is considered one of the best (if not the best) Supreme Court lawyers of his generation, but because his opinions as a D.C. Circuit judge have been simply outstanding. I've read about a half dozen Roberts opinions in the last year, and they were all models for what an appellate opinion should be. Tight, focused, scholarly, and balanced. They were beautifully written, too; the guy can make even FERC disputes seem interesting. I also saw a dash of Robert Jackson in them — a sort of perspective that reflects a deep understanding of how this case fits into other ones. Finally, Roberts pulls it off without being flashy. His opinions are highly readable but don't beg for more attention. Excellent stuff.
Will Blogs Kill the Law Review Case Comment? While mulling over my blog post below about a recent court decision, it occured to me that one way blogs will change the content of law reviews is by rendering case comments superfluous. A case comment is a brief student-written article, usually around 10 pages long, explaining and offering commentary on a recent court decision. Case comments traditionally have served three functions: 1) Alerting readers to a recent decision, 2) Offering a scholarly assessment of the decision soon after the decision is out, hopefully before academics and appeals courts have had time to digest it, and 3) Helping editors improve their writing skills and generating a writing sample for future job applications. The question is, will blogs drive case comments out of business?

  My sense is that blogs have eclipsed the first two functions of case comments. How Appealing alerts readers to new court decisions, often on the same day they are published (at least when Howard doesn't have the nerve to go on vacation). Within a matters of days, the blogosphere usually generates a discussion among practitioners, law professors, students, and interested laypersons about the merits of notable decisions. In general, the quality of legal analysis generated by the blawgs is notably higher than that of case comments; practitioners and law professors have more expertise and experience than 2Ls, and the back-and-forth debate online generally tightens loose thinking pretty quickly. In contrast, student case comments are usually short on perspective and long on political agendas; the majority seem to fall into the "I'm liberal and want to bash the Rehnquist Court" mold, or the "I'm conservative and this Reinhardt decision is nuts" mold.

  By the time case comments come out, usually about a year after the decision, it is too little, too late. Litigants, judicial clerks, and anyone else involved in the case can read the output of the blawgs online and take away whatever lessons they wish from the commentary; few are going to go hunting through westlaw for student comments a year or two later. For example, if Eugene blogs about a First Amendment decision the day it comes out, offering his assessment of the case and pointing out its strengths and weaknesses, will anyone care if a year later the Brown Journal of Law and Identity publishes a case comment by a 2L editor explaining that he liked or didn't like the decision? In a pre-blawg world, such a case comment might be the very first piece of analysis on the case; it could be important because there is nothing else on the opinion. The role of first responder is now played by the blogosphere.

  Perhaps the third function of case comments is enough to keep case comments alive, at least for a decade or two. But my prediction is that journals will eventually stop publishing case comments and instead focus more on scholarship surveys (where student reviews could be very helpful) and broader note topics.

  Thoughts? Reactions? I have enabled comments.
Unusual Fourth Amendment "Consent" Case: Imagine you get lost driving in McLean, Virginia, late one night, and that you find yourself near the CIA headquarters. You decide to drive up the headquarters main gate so you can ask for directions. Moments after you ask for directions, two armed security officers come out and yell at you to put your hands up. One officer has a nine-millimeter pistol; the other has a shotgun positioned so it could be readily fired at you. You put your hands up, and the officers start asking you questions. Do you know where you are? Are there any drugs or alcohol in the vehicle? Do you have any ID?

  On the night of October 14, 2002, this happened to Terrence Smith. The CIA security officers quickly found out that Smith was driving without a license, and ordered him out of the car. The officers concluded that Smith appeared to have been drinking, and eventually arrested him for drunk driving (a charge that he was acquitted of at trial). During a search incident to his arrest for DWI, the officers found cocaine in Smith's car. Smith moved to suppress the cocaine on the ground that he had been unreasonably seized when the officers came out with their guns and ordered him to put his hands up. Judge Gerald Lee of the EDVA denied the motion to suppress, ruling that Smith had been seized but that the police had reasonable suspicion to seize him under the principles of Terry v. Ohio. Smith was convicted of the cocaine charges in the U.S. District Court for the Eastern District of Virginia and sentenced by Judge Lee to two years and two days in prison. Smith then filed an appeal renewing his argument that the chared against him resulted from an unreasonable seizure.

  In an opinion by Judge Luttig published on January 27th, the Fourth Circuit affirmed the conviction. This much is unremarkable; while Smith was obviously seized during the encounter, it seems the evidence against him was obtained in ways unrelated to seizure. The evidence was not a fruit of the seizure, and the seizure itself likely was reasonable given the heightened security concerns at the CIA headquarters. As a result, the conviction should have been affirmed.

  But Judge Luttig didn't affirm on these grounds. Instead, he resolved the case on a rationale that strikes me as rather remarkable. According to Judge Luttig, the encounter at the CIA headquarters gate was actually consensual — or at least reasonably was believed by the officers to be consenusal. That's right, Smith actually wanted to have his liberty restricted, at least according to the court:
  We are satisfied that Smith's unauthorized and voluntary approach to officers outside the CIA headquarters in the middle of the night justified a belief by the officers that he was consenting to the customary security precautions required at that time of the night at the entrance to such a protected facility, regardless of whether Smith intended to consent to a demand for identification by armed officers or whether he even knew that he was so consenting. A reasonable person would certainly know that officers at the CIA gate would be armed when approaching an unidentified car, and that such officers would seek to determine who was entering the property without authorization. As such, a reasonable person would view a decision to initiate a consensual encounter with officers near the gate of the CIA as consent to these foreseeable circumstances. The officers were thus plainly justified in believing that their encounter with Smith at the Jersey barrier was consensual. Therefore, if any seizure occurred, it was within the scope of Smith's consent and thus reasonable within the meaning of the Fourth Amendment.
  This strikes me as quite far-fetched. The Supreme Court's test for determining the scope of consent is what a reasonable person listening to the exchange between the officer and the suspect would think the suspect was agreeing to let the officer do. See Florida v. Jimeno, 500 U.S. 248, 251 (1991). It's hard to imagine that asking for directions is a form of request to have armed officers order you to put your hands up and detain you. The guy wanted to get directions; he didn't expect the Spanish Inquisition (of course, nobody expects the Spanish Inquisition!). Whether the suspect should have known that something like this might eventually happen isn't the test; forseeability is not the same as consent.

  The opinion tries to work around this difficulty by using Illinois v. Rodriguez, 497 U.S. 177 (1990), to modify the Jimeno test so that it focuses more on the perspective and mindset of the police officer. I don't think that works, though. In Rodriguez, the Supreme Court held that "determination of [authority to] consent to enter [a home to conduct a search] must be judged against an objective standard: would the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises?" The idea is that if a person reasonably seems to have the authority to consent to a search or seizure, the resulting search or seizure is not invalid if it turns out later that the person was just posing as someone with that authority. In the paragraph before the one excerpted above, Judge Luttig gives Rodriguez a "cf." cite for the view that the key question is only whether the officer's subjective belief about the consent was reasonable from his perspective. But Rodriguez is not so broad; it deals only with authority to consent (something that is not an issue here), not how to construe the scope of consent.

  More broadly, I don't think I have ever seen a case in which a court found a consensual seizure of a person. I might decide to let the police have my stuff, and in that case I am consenting to have the police take away my property. The seizure of my stuff is consensual, and therefore reasonable. But seizures of persons are distinct from seizures of property under the Fourth Amendment; the test is no longer deprivation of a possessory interest, but rather whether a reasonable person in that situation would feel free to leave. I suppose it's theoretically possible to voluntarily consent to have your freedom to leave revoked, but it seems like an odd (and dangerous) rationale. Under existing precedents, judicial scrutiny of government security practices generally invites the courts to balance the need for the practice with its intrusiveness. If a government search or seizure is deemed "consensual" when a person really should have known it was coming, however, then such procedures generally will be exempt from judicial scrutiny.

  Thanks to CrimLaw for the heads-up on this case; CrimLaw's coverage also offers some extensive analysis.
Everyday life in Israel:

As something of an antidote to the political and military images of we see every day on t.v., I though I'd pass along this picture my sister-in-law sent me of my niece and nephew (on the left) and their two friends.

Tear Down This Wall:

As Scott Johnson notes this morning, the speech restrictions regarding the Dartmouth Trustee Elections are very strict. Which makes it all that more crucial that they be enforced in an even-handed manner.

Herewith the text of the email I sent to the Affairs Office and Alumni Council Ballot Committee this morning regarding the incident described in an earlier post:

I was surprised and disappointed to see the announcement in the "Speaking of Dartmouth" Electronic Newsletter last week that promoted the candidacies of the four official alumni candidates. Given that candidacy deadline does not close until this Wednesday Feb. 23, I believe that this announcement was premature, inappropriate, and very detrimental to the prospects of a fair election for the Dartmouth Board of Trustess. First, by referring to "the candidates" in the email announcement, this implies that the 4 candidates listed there will be the full slate of candidates. Second, this is very detrimental to my efforts in that any alumni who clicked through that link last week will be much less likely to do so with respect to any future announcements. Third, any future announcement regarding an updated slate of candidates will not only mention my candidacy but will inevitably also again promote the Alumni Council candidates; thus, this puts me at a permanent disadvatage.

To the extent that the College and Alumni Council insist on strict rules on communication with alumni during the election process, it is imperative that these rules be applied in an even-handed manner to all qualified candidates and that there is neither the appearance nor the acutal effect of favoring some candidates over another.

I believe that the announcement at this time was premature and fundamentally unfair to independent candidates and should have not been issued until the deadline for candidates was closed on Feb. 23.

As a result, I request that the College and the Alumni Council take the following steps to attempt to redress this situation:

First, I request the IMMEDIATE REMOVAL of the video by Karen McKeel Calby '81 endorsing the official Alumni Council nominees. This is a completely inappropriate advantage for the official candidates and there is simply no possible way for a qualified petition candidate to offset this advantage.

Second, I would like to request that the following to try rectify this unfair communication on behalf of the Alumni Council candidates. First, I would like express authorization to maintain my personal website for the duration of the balloting period, to provide alumni with an equal opportunity to discover and learn about my candidacy. Second, after I am qualified as an official candidate this week I would like a special email to be sent to all subscribers of "Speaking of Darmouth" that mentions my addition to the ballot and directs interested alumni to my personal website. I would request that this communication mention specifically that the prior email communication was premature and prior to the candidate deadline, and that the email that mentions my candidacy is being sent to provide all candidates with an equal playing field. It is important that this email mention only myself and any other petition candidates who qualify for the ballot, and does not exacerbate the situation by again directing alumni to the official Alumni website.

I believe this is a serious breach of the promise of a fair and open Trustee Election. If the College is going to impose speech restraints on Trustee candidates, it is imperative that those rules be applied in an even-handed manner and do not favor some candidates at the expense of others.


Comments by Dartmouth Students Joe Malchow and Nathaniel Ward.

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  1. Tear Down This Wall:
  2. Dartmouth Undying:
Quinnipiac Talk Cancelled: A severe snowstorm that has already begun, combined with freezing rain later this afternoon, will prevent me from driving to New Haven from Boston this morning, so my talk today at Quinnipiac has been cancelled. (The school itself is closed until 11.) I have offered to reschedule for late April, and will post here if that date works out for them. My apologies to anyone who was planning to attend, but I already have several inches of snow on my driveway and it is falling pretty fast.

Later this week, I will be at Cumberland Law School in Birmingham, Alabama on Thursday at noon in Room 116 (the Trial Courtroom) (2/24) and University of Alabama in Tuscaloosa on Friday at noon (2/25).

On Thursday of next week (3/03) I will be at NYU at noon and Columbia at 6:30 in Greene Hall 104.

Update: I now know the location of my talk at Cumberland (see above).

Dartmouth Undying:

A count of my Trustee Elections petitions indicates that I have gained more than the 500 petitions (signed in non-black ink, of course) needed to qualify for the ballot for the Dartmouth Board of Trustee elections. My petitions will be delivered to the College today. A special thanks to all the Dartmouth Alumni who have taken the time to sign and return petitions.

The outpouring of support that I have received in this effort has been a truly gratifying experience. I have received signed petitions from alumni all across the range of classes--I believe that Class of '33 is the earliest vintage of alumni who have returned a petition. I have been especially struck by the enthusiasm from recent alumni, from the past 5 years or so, which I believe attests to the frustration level of current Dartmouth students and parents.

This has also been a deeply humbling experience. One alum apologized for his handwriting, noting that he is almost completely blind, yet wanted to return a petition. The handwriting on a petition from the Class of '38 was shaky, but back it came. Many alumni took the time to include long, thoughtful letters expressing their views on what is right and wrong about Dartmouth--I read all of those letters and found many of them to be both moving and insightful. Many others included short notes, from "Go Get 'Em" to "Bring Back Beta!".

This experience has reminded me what a deep sense of trust and obligation comes with being a member of the Dartmouth Board of Trustees. The depth of loyalty and passion that Dartmouth alumni feel toward the College is fundamentally different from any other College in America. Can you imagine any other college or university in America where alumni would take the time to read a letter and sign a petition--for a perfect stranger--to be able to run for the Board of Trustees? And then taking the time to compose a note or letter to express their own thoughts about what can be done to improve Dartmouth?

Dartmouth is a special place, and serving on the Board is a sacred trust for the generations of alumni who have built and maintained that legacy. The Dartmouth experience has brought together students of many different backgrounds across the centuries and left its indelible stamp on each of them, and they have left their mark on the College. It pains me when Dartmouth's leadership turns its back on this legacy. If I am elected to the Board, I will work to improve Dartmouth and to pass this legacy on to future generations of Dartmouth alumni.

I am grateful for the support of the alumni who have signed petitions, and I hope that you, and your friends, will vote for me when the balloting begins next month.

As for me, Dartmouth's dislike of free speech applies not only to students, but apparently to alumni as well. Once I qualify as a candidate, I will come under the maddeningly vague rules governing campaigning (described in Scott Johnson's article today in the Weekly Standard On-Line). I am still not clear on what this means with respect to my communications with alumni. It may require me to take down my Dartmouth Trustee Election website, however, so I would encourage those who are interested to visit my website while you still have the opportunity. You will find not only do I have information about my goals for Dartmouth, but I have links to many Dartmouth articles of interest.

Of course, as with students as well, it appears that the College does not apply its restrictions on free speech in an even-handed manner. I notified the College last week that I had garnered sufficient signatures to qualify for the ballot. Nonetheless, at the end of last week--after I notified them, and less than one week before the close of the deadline for candidates to qualify (Feb. 23)--the College sent out its electronic newsletter "Speaking of Dartmouth", which contained an advertisement for alumni to follow a link to "meet" the four candidates named by the Alumni Council.

Although petty, this little episode seems all too typical of the College's uneven attitude toward free speech on campus and efforts to manipulate the information provided to alumni. This is one of the reasons that my goals for Dartmouth include restoring the rights of free speech on campus and increasing the openness and transparency of College governance.

I have asked for an explanation from alumni affairs about this premature communication and will request equal time from the College, but of course, this is a uniquely detrimental and one-sided communication to an independent candidate like myself, in that any future announcements that include me will direct alumni to a website that will include all of the qualified candidates. Many of those who clicked through last week will have little interest in clicking through to the alumni candidate web page again. Would it have killed them to just hold off one more week to see if any other candidates qualified for the ballot before they sent their communication?

For alumni who may be interested in expressing your views on this or other matters of import regarding the election, the email address for Dartmouth Alumni Relations is

Thank you again Dartmouth Alumni and please remember to vote beginning next month!!


Dartmouth undergraduate blogger Joe Malchow comments here.

Related Posts (on one page):

  1. Tear Down This Wall:
  2. Dartmouth Undying:
Weekly Standard on Dartmouth Trustee Election:

Scott Johnson of Powerline (and a Dartmouth alum, as it turns out) has an interesting commentary today, "Bucking the Deans at Dartmouth" in the Weekly Standard On-Line profiling the Dartmouth Trustee Election and putting it in larger historical context.

Sunday, February 20, 2005


Randy Barnett raises the issue of term limits, which I blogged about a few weeks ago. There are at least three major questions to be answered in deciding whether to endorse the Carrington/Cramton proposal, or any specific proposal on term limits for the Supreme Court:

1. Do you favor 18-year term limits for Supreme Court justices?

Such proposals date back over a decade to (as I recall) at least Greg Easterbrook's. The Carrington/Cramton proposal from late 2004 and the one that I discussed on CONLAWPROF about 4-5 years ago and the one that Steve Calabresi and Akhil Amar proposed in a 2002 Washington Post op-ed all opt for 18-year term limits.

2. Can this be accomplished by statute by retaining life tenure (with reduced powers and responsibilities) or must such a change be accomplished by a Constitutional Amendment?

Reasonable people can differ on this. The Carrington/Cramton proposal opts for a statute. Early versions of the Calabresi proposal said that either a statute or a Constitutional amendment were possible. The draft that Calabresi and I are rewriting now calls for Constitutional amendment, not a statute, as the wiser course, which was my initial cut when Calabresi first raised the idea of Supreme Court term limits with me back in 2000.

3. Which proposal do you favor?

Even if you are willing to endorse 18-year term limits and think it can be done by statute, rather than by constitutional amendment, there is still the question of which implementation of 18-year term limits works best. I know that Calabresi, when he endorsed the Carrington/Cramton proposal thought that it did much the same thing as the proposal that he and I have been working on for years. But it doesn't. (Obviously, between the two, he favors our proposal.) The Carrington/Cramton proposal might still be better than the status quo (I don't know), but I think the version that Steve Calabresi and I developed is better on specifics—which of course one would expect us to think of our own proposal.

I just read the Carrington/Cramton proposal for the first time last night, and I think there are some serious problems with it. I will leave aside for now some problems with their phase-in period (because any proposal will have some potential oddities associated with the phase-in period), and I will focus only on problems with the Carrington/Cramton proposal once it is fully phased in and functioning.

The Carrington/Cramton proposal provides BOTH that "the nine who are junior in commission shall sit regularly on the Court" hearing cases AND that "One Justice or Chief Justice, and only one, shall be appointed during each [2-year] term of Congress." While under the current law and any scheme that I have considered, the Senate always has the power to delay approving and thereby to delay adding a justice for strategic reasons, under current law and our proposal, the President and the Senate have no power to REMOVE a justice from hearing cases because they want to replace him or her. But under the Carrington/Cramton proposal, they do. And this dispute would happen, not just occasionally, but with almost every appointment.

Imagine if the Carrington/Cramton proposal were fully phased in today and a Democratic appointee and strong liberal were the most senior sitting justice. The Carrington/Cramton proposal provides that "One Justice or Chief Justice, and only one, shall be appointed during each [2-year] term of Congress." Accordingly, some in the Bush White House would want the new Bush choice confirmed NOW in the first months of the new Congress, so the new justice could bump a sitting Democratic justice off the cases already being heard. The Democrats would respond, "What's your hurry?" Under the Carrington/Cramton bill, they could wait until late in 2006 to replace the current sitting justice. Suppose that there is a major case coming before the Court late in this term and the more political branches want the senior Justice bumped off the Court that would hear the case. This would seem to me to be highly disadvantageous.

Further, this power to remove sitting justices from hearing cases (including from anticipated specific cases) at the discretion of the other two branches would raise Separation of Powers concerns. Indeed, giving the two non-judicial branches the discretion to set the end of a particular justice's ability to hear cases routinely would make it particularly inappropriate to try to do so by statute, rather than Constitutional amendment. I don't think that the Carrington/Cramton proposal can both urge a statutory solution and give the executive and legislative branches the discretion over when during a 2-year window to remove a sitting justice from hearing cases.

Further, suppose that the Bush White House gets its choice through in February or March in the first year of the new Congress. The new justice would obviously supplant the senior justice on cases on which certiorari had not yet been granted, but what about cases on which cert. had been granted, but the cases not yet argued? What about cases argued but not yet decided? As I read the C/C proposal, the new justice would sit immediately, probably bumping the senior justice off cases heard but not decided: "The nine who are junior in commission shall sit regularly on the Court." At the least, the application of their statute to existing cases is unclear.

I apologize for not making our full specific proposal public now, but (while its logic has been worked out and we have a draft provision) we have not yet run it by those more skilled in legislative drafting. We go for fixed terms of 18 years, each starting and ending in the summers of odd years:

c. The Length of the Terms of Regular Service. There shall be nine staggered full terms of Regular Service on the Supreme Court, each approximately 18 years in length, with terms beginning and ending every two years in odd numbered years. An old term of Regular Service shall end and a new term shall begin on July 1 of each odd numbered year if the Supreme Court has recessed for the summer by that date. Otherwise, the term of Regular Service shall begin and end on the first full day of recess after July 1, but in no event shall the date for beginning and ending a term of Regular Service be later than October 1 of the relevant odd-numbered year.

Calabresi and I expect to make our draft, which has been circulating in a limited form since 2001 or 2002, finally public in mid-March. At that time, I will try to set out what I think are the chief merits and demerits of our Constitutional proposal.

For the reason I set out above, while I strongly favor the idea of 18-year term limits, I do not favor the particular proposal put forward Carrington and Cramton, though with revisions to track more closely our proposal, I would probably favor it.

Related Posts (on one page):

  2. Term Limiting Supreme Court Justices:
  3. NY Times article on Supreme Court term limits.--
Ha! I'll Bet They Know Who We Are Now!

George Mason 78, Manhattan 66

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Summers controversy and conservatives in academia:

A commentator at

Correct me if I'm wrong, but about 6-8 weeks ago there was a flurry of activity in the blogosphere re: the dearth of conservatives/Republicans on university faculties. If I recall, the general, not to mention immediate, consensus among liberal/Democrat professors was that Republicans either didn't have the intellectual oomph to be professors, or just preferred to do other things. Natural selection, in other words, certainly not any sort of bias. We now have Harvard jumping through hoops to explain the dearth of female professors in math and science departments. They're not quite sure why this condition endures, except for the fact that it absolutely, positively, ain't natural selection. Strangely enough, this was another immediate, reflexive consensus, excepting Mr. Summers' brief but embarrassing romp off of the intellectual plantation.

I would add that if Summers' quite measured comments have gotten him into such hot water, imagine how regular faculty, untenured faculty, graduate students, and undergraduates whose views don't reflect the politically correct mainstream are treated, and how much their careers can be placed in potential jeopardy. And then consider whether a young conservative or libertarian scholar would be wise in pursuing an academic career.

As for the argument that many scholarly issues in academia are non-political, ahd thus not subject to ideological prejudice, consider another Janegalt commentator's missive:

I'm a newly hired scientist at Harvard, and I have been amazed by the fact that almost all of my colleagues agree that this hypothesis (that biological differences contribute to the persistent discrepancy between the numbers of men and women in the natural sciences and mathematics) should not even be considered.

If science can't be objective and free from political correctness, what can?