Saturday, September 24, 2005

Pressure from the Right on Judges: The New York Times has the scoop.
Nominating "Another O'Connor":

My colleague Nelson Lund says it is impossible to nominate "another O'Connor" to replace O'Connor:

First, even if one assumed the ideal replacement for Justice O'Connor would be another Justice O'Connor, the president could not possibly identify such an individual. Justice O'Connor's generally cautious and pragmatic approach to law means many of her significant votes depended on highly personal judgments about the likely practical effects of court decisions. Picking another pragmatist would actually guarantee we will not get the same judgments we got from Justice O'Connor. Every pragmatist is different.

He also says it would be unwise to try to nominate another O'Connor:

Second, Supreme Court candidates perceived as moderate, or even moderately conservative, almost always turn out to be leftists. History is filled with illustrations, from Harry Blackmun and John Paul Stevens to David Souter. If President Bush tries to find "another O'Connor," we will almost certainly end up with someone much more like "another Souter."

Henry Ford Biography:

I'd like to give someone a biography of Henry Ford as a present; can anyone recommend one? Readability is more important here than completeness. I've seen the usual lists of biographies of the man, but I'm looking for personal recommendations. Thanks!


Friday, September 23, 2005

Looting in Houston:

The AP reports on some incidents, and quotes Houston Police Capt. Dwayne Ready, who makes a good point — in a way obvious, but perhaps not entirely clear to every one:

“I think the key element in looting is the fact that those who would not otherwise engage themselves in criminal activity (join in) and believe they will be able to hide in the crowd,” Ready said. “It’s the difference between an unlawful assembly and a riot. Essentially (looting) is theft but I think its when the crowd believes they can hide against the anonymity of a large crowd engaged in the same kind of conduct.”

Incidentally, whatever the practical or moral merits of shooting looters, I think it's surely morally laudable to warn looters that Texas law generally authorizes people to kill thieves to protect or recover their own property (setting aside the situation where the target took the property in order to survive),

§ 9.41. (a) A person . . . is justified in using force against another . . . to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other's trespass on the [person's] land or unlawful interference with the [person's] property.

(b) A person unlawfully dispossessed . . . by another is justified in using force against the other . . . to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession . . . .

§ 9.42. [Deadly force may be used in the above situations] . . . to the degree [the actor] reasonably believes the deadly force is immediately necessary:

(A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or

(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and

(3) [the actor] reasonably believes that:

(A) the land or property cannot be protected or recovered by any other means; or

(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

People can also use deadly force to protect others' property under similar circumstances, if they reasonably believe the target committed or is committing theft or attempted theft (§ 9.43).

Again, I might advise Texans not to take advantage of their legal rights under these sections in some situations. But I would surely advise all Texans to remember that Texas property owners have those rights, and many have the reputation of being willing to use them.

Thanks to Shawn Wesson for the pointer.

Katrina Conspiracy Theory:

Professor Bainbridge points to one; but, creative as it may be, I can't be impressed unless it also involves Jews helping the Queen of England smuggle drugs to the Trilateral Commission.

Seeming Police Harassment of Peaceful Protesters:

The ACLU of Georgia reports that it is suing "on behalf of two vegan protesters who were subjected to false imprisonment, false arrest and harassment by officials of the Homeland Security Division of DeKalb County and the DeKalb County Police Department."

It also links to the police detective's report, which seems to me to substantiate the ACLU's charges — harassment and false arrest sounds like the right description, based on the detective's own description of what happened. There might of course be some factual details that would change the analysis, but right now it looks like pretty bad behavior.

Justice Scalia on the Arts, Funding, and Obscenity: The Associated Press has the scoop. Thanks to Howard for the link.
New York Civil Liberties Union vs. "Unwanted, Abusive, and Intrusive Military Recruitment Tactics":

The NYCLU press release reports:

The New York Civil Liberties Union today announced its major campaign against unwanted, abusive and intrusive military recruitment tactics in schools. The beginning of a new school year marks the opening of another season of military recruiting of high school students as the military exercises the authority it gained under little-known provisions of the No Child Left Behind Act. Such provision have been interpreted as a requirement that school authorities turn over student contact lists to the military and afford its recruiters unprecedented access to students in school. . . .

"The military is setting its sights on vulnerable groups of young people as it tries to meet the demands for more soldiers to fight an increasingly unpopular war." said Donna Lieberman, Executive Director of the NYCLU.

"We send our children to school for an education, not to become military targets. Unfortunately, little noticed provisions of No Child Left Behind have given the military unprecedented access to students in school and an aggressive military has turned some of our schools into a recruiting ground. The NYCLU seeks to ensure that they respect the privacy rights of the children and do not interfere with education."

As part of its campaign, the NYCLU will begin distributing a new pamphlet "No Student Left Unrecruited" outside high schools in New York City today. The pamphlet outlines student rights and provides a tear-off form that students can submit to their schools to remove their name from the recruiting lists sent to the military.

The NYCLU campaign also includes:

* a new NYCLU military recruiting Web site,, which contains student rights information, forms and legal analyses that will help students, parents and educators protect student privacy rights and report recruiting abuses;

* a confidential complaint center where students, parents and educators can report abusive recruiting tactics;

* plans to contact to every school superintendent in the state, urging them to replace ineffective parental "opt-out" procedures that leave virtually no child unrecruited, with an instant in-class student opt-out form that allows students to remove themselves from the military recruiting lists. . . .

In the past there have been complaints of intimidation, deception and harassment by military recruiters in person, by telephone and by e-mail. In some schools, military recruiters have made themselves a regular presence with weekly visits and extensive access to students. Special military marketing materials target students of color. . . .

Of course, "abusive" military recruitment tactics, including "intimidation, deception and harassment" are surely wrong, and generally counterproductive -- they risk alienating the very students whom the military is trying to recruit, and of course their friends as well. The site doesn't point to specific instances of this, but if there are such instances, they should certainly be complained about.

Yet I wonder about other aspects of the NYCLU's complaints, for instance:

1. Why is there a civil liberties problem with unwanted military recruitment? If you don't want the military to offer you a job, you can just say "no, thanks." How is it a violation of your civil liberties to be approached in the first instance? (Yes, I realize that the school is giving the military contact information, but how does providing this information interfere with anyone's civil liberty?) Is it really an aspect of our civil liberty not even to be asked to join?

2. What exactly is the civil liberties problem with "ineffective parental 'opt-out' procedures that leave virtually no child unrecruited"? Presumably the procedures are "ineffective" because parents don't choose to use them. And there seems to be little wrong with a circumstance in which virtually no child is unrecruited. Even if "in-class student opt-out" is more "effective" at removing students from recruiting lists, why is that a plus for civil liberty?

3. The ACLU generally supports race-based affirmative action, including race-based outreach. Many of its allies in this campaign point to the military as an example of an institution that effectively practices such race-based affirmative action. Wouldn't the military "targeting students of color" -- and offering them important training opportunities, though of course ones that also carry considerable personal risk -- therefore be good?

4. The ACLU generally takes the view that young people are mature enough to exercise their free speech rights, abortion rights, and so on. Yet here the NYCLU characterizes older teenagers, who are presumably 17 or 18 when they sign up (I'm not sure whether the military enlists 17-year-olds, but let's even assume that they are), as "vulnerable groups of young people." Why aren't these students, especially when they turn 18 and are adults, entitled to learn about the options they have available to them -- options they may find financially, educationally, and patriotically valuable?

5. Why exactly does it matter for civil liberties purposes whether the war is increasingly unpopular or not?

I ask above what the civil liberties problems are with the military's actions, because I assume the NYCLU is still an organization that's focused on civil liberties; I realize it may define them differently than how others may define them, yet one would think that there is still a boundary to what is a civil liberties issue.

Naturally, if this were the New York Anti-Military-Recruiting Union setting up this project, or even the New York Pacifists' Union or the New York Anti-War-in-Iraq-Union or the New York Anti-Bush-Administration-Union, I wouldn't be asking these questions: It would be quite clear why those groups might want to decrease the effectiveness of the Administration's military recruiting plans. (Not all those groups might want to take these steps; for instance, many foes of the Bush Administration or even of the war effort might not want to try to decrease the effectiveness of recruiting. But at least I could understand why some such groups would act this way.)

What I don't quite see is why the New York Civil Liberties Union would see this as part of its agenda.

For more, including the views of Nat Hentoff, a former ACLU board member, see this New York Sun article.

A Question About Wording:

I need two terms that would describe (1) a family in which the parents are living together, and rearing the children together, and (2) a family in which the parents are no longer together, and are arguing in court about who has what kind and degree of control over the childrearing. The terms need to be (A) precise, (B) instantly comprehensible, (C) not legalese, and (D) as unjudgmental, noninflammatory, and unloaded as possible.

"Married couple" and "divorced couple" are probably fine on B, C, and D, but they're unfortunately too imprecise: The issues I describe arise even with families in which the parents were never married (whether they're an unmarried heterosexual couple raising their biological children, or an unmarried homosexual couple raising an adopted child or a child who is the biological child of one of the partners).

Another option is "intact family" and "broken family," a pair that likely satisfies A, B, and C; but one reader opined that "broken family" might come across as too loaded and negative, a circumstance I'd like to avoid if it's indeed a realistic concern. I don't mind controversy, but I don't want needless controversy. My point here is to describe the families, not to be seen as badmouthing one sort.

A third option is "intact family" and "non-intact family," an option that likely satisfies A and D, but that seems too legalese and perhaps a bit harder to understand.

If you can (1) tell me whether you think "intact family" and "broken family" are satisfactory or whether they are too loaded or negative, (2) tell me whether you think "intact family" and "non-intact family" are satisfactory or whether they are too legalese, (3) give me a suggestion that you think is better, if you have one, I'd be much obliged. Many thanks!

Levees Breached Again in New Orleans: Update here.
[Puzzleblogger Kevan Choset, September 23, 2005 at 12:03pm] Trackbacks
What do these actors

have in common?

F. Murray Abraham, Holly Hunter, Adrien Brody, Jamie Foxx.

Name another actor that has the same characteristic. I have one answer in mind, though there may be others.

Pressure on New London Development Corp:

The battle over evicting the Kelo homeowners continues to heat up. News reports are somewhat spotty and it is hard for me to figure out precisely what is going on with respect to the New London Development Corp. and their efforts to evict the Kelo homeowners. Tom Blumer at Bizzyblog, however, is reporting that in light of the recent efforts of the NLDC to evict the homeowners and to charge them back rent for the past five years, the New London City Council is pressuring the NLDC to remove its chief executive or be dissolved. Tom also reports that the NLDC is rallying behind its executives and will not force them to resign. (Note: Some of the links are registration only and some have expired.) Looks like a real showdown is brewing.

Davis-Bacon: Racist Pork

The moderate wing of the liberal blogosphere is abuzz over President's Bush's suspension of the Davis-Bacon Act in the Katrina zone. In essence, Davis-Bacon requires federally subsidized construction contractors to pay union wages and follow union work rules. Some moderate Democrats, now represented by Mickey Kaus in the blogosphere, have opposed Davis-Bacon for years because it raises the costs of government construction while favoring established contractors and skilled union workers over their less-established competitors. Other Democrats, however, ably represented by Matt Yglesias, argue that Davis-Bacon helps unions, and unions help the Democrats and liberal causes more generally, so Davis-Bacon is a good thing, even if it's a wasteful law.

I've written a fair amount about Davis-Bacon, and especially its blatantly racist origins. My first paper on the subject, published by the Cato Institute way back in 1993, can be found here. More comprehensive research resulted in chapter 3 of my book, Only One Place of Redress: African Americans, Labor Regulations and the Courts from Reconstruction to the New Deal, which I've temporarily put online here. I doubt any objective observer could read this chapter and believe labor union denials (expressed in a paper, apparently not available online, entitled "The Davis-Bacon Act: A Response to the CATO Institute’s Attack," by the AFL-CIO, Building and Construction Trades Department), that Davis-Bacon was motivated in significant part by the desire to exclude African Americans from federal construction jobs.

Last week, someone from the New York Times asked me to write a short piece arguing that Davis-Bacon should be repealed. The Times ultimately declined to run the piece, but I reprint it, in a slightly longer version below.


Related Posts (on one page):

  1. "When Affirmative Action was White":
  2. Davis-Bacon: Racist Pork
DOJ Litigation Strategy.

I was fascinated by Orin's discussion of the pique displayed in the Ninth Circuit regarding the DOJ's refusal to introduce evidence of reasonable suspicion for a border search even though such evidence likely existed. I actually have a good deal of sympathy for the argument that such tactics are like seeking an advisory opinion, though at the end of the day I am not sure that argument holds up.

I seem to recall a somewhat analogous strategy regarding civil rights litigation, where cases brought and arguments raised were carefully controlled to bring issues before the courts in carefully controlled circumstances designed to push or undermine particular legal theories (regardless of whether other theories were available). A similar example might be found in the decision in Lawrence v. Texas not to raise gender discrimination as the basis for their claim, even though to some (me included) that seemed the more obvious point, though one that might be perceived as having more wide-reaching implications, and hence might have deterred some in the middle. (And thus we are back to the question of whether outcomes affect the legal correctness of a decision or position.)

While it may be true that it was unnecessary for the government to rely on the more favorable Supreme Court ruling to defend their search, that hardly means it was improper to do so or that the government is "manufacturing" a case and seeking an advisory opinion by introducing only such evidence as the law requires. Nobody imagines that the government should introduce evidence that a particular law would satisfy strict scrutiny when the proper test is rational basis scrutiny. And that would be true even where greater evidence were available. While a party always has the option of arguing in the alternative that they can satisfy even the stricter test asserted by their opponent, it seems odd to require them to argue on their opponent's preferred ground rather than to dispute the premise and leave it at that. Such litigation choices arise all the time, and the courts routinely take their cases as they are argued, not as they would prefer them to be argued. Failures of proof are routinely held against a party even where that party could have proved far more than they did.

The fact that the absence of proof here forced the court to consider a harder question than it might otherwise have considered does not make the decision advisory. Had the court decided that invasive searches required greater suspicion, the government would have lost the case regardless of whether they could have satisfied satisfied the heightened standard with additional proof. One might criticize the government for risking a conviction by not arguing in the alternative, but I do not see any real problem in forcing the court to apply a broadly deferential rule that the government had ample reason to believe applied and controlled. Had this been a private party with only this single case to consider, rather than the government, the considerations might be different. But where the government is a repeat player in this arena the systemic benefits of establishing new and clear Ninth Circuit precedent presumably serve the "client" better in the long run and thus justify the fairly limited risk of an adverse result in the particular case.

Hillary Clinton to Vote "No" on John Roberts: From Senator Clinton's press release:
  I have an obligation to my constituents to make sure that I cast my vote for Chief Justice of the United States for someone I am convinced will be steadfast in protecting fundamental women’s rights, civil rights, privacy rights, and who will respect the appropriate separation of powers among the three branches. After the Judiciary Hearings, I believe the record on these matters has been left unclear. That uncertainly means as a matter of conscience, I cannot vote to confirm despite Judge Roberts’s long history of public service.
  . . . [B]ecause I think [Roberts] is far more likely to vote the views he expressed in his legal writings, I cannot give my consent to his confirmation and will, therefore, vote against his confirmation. My desire to maintain the already fragile Supreme Court majority for civil rights, voting rights and women’s rights outweigh the respect I have for Judge Roberts’s intellect, character, and legal skills.
  Am I right in reading this as an indication that Senator Clinton will vote against all Republican Supreme Court nominees? After all, the confirmation hearings for David Souter did not establish the convincing case that Senator Clinton seems to be demanding. For that matter, neither did the hearings for John Paul Stevens. Or Sandra Day O'Connor. Or Anthony Kennedy. Or Harry Blackmun. I assume that this means Senator Clinton would have voted against all of them, as well? Or is there a special rule for the Chief slot or fragile majorities?

Thursday, September 22, 2005

Watching Your Own Plane Make an Emergency Landing: Story here.
The Source of Blackstone's Intuition: Larry Solum links to a provocative paper, The Source of Blackstone's Intuition: Why We Think it Better to Free the Guilty than to Convict the Innocent, by Samson Vermont. The gist of the argument is that our intuition that it is better to let 10 guilty persons (or even n guilty men) go free than convict one innocent person is partly irrational because it is based on a "psychological quirk" — the greater mental accessibility of a false conviction than a false acquittal. I've just skimmed the paper, and it's pretty interesting. The problem, I think, is that there are lots of quite rational reasons to agree with the intuition. Samson acknowledges some of them in footnote 9, but there are others, such as the uncertainty of whether the theories of punishment work in a particular case. Without knowing the relative significance of the rational and irrational as an empirical matter, it's hard to assess Samson's argument. Nonetheless, it's an interesting paper.
Sex With 12-Year-Olds in the 1970s:

[UPDATE: The first paragraph below flowed from my misreading of S. 1400, which would indeed have set up multiple ages of consent depending on the age of the other party: It would have legalized sex with 12-year-olds when the other party was less than five years older; made it a misdemeanor when the other party was under 21; and made it seemingly a relatively low-grade felony when the other party was 21 or older. That's still a scheme that strikes as too tolerant of sex with the quite young, but at least it's much more comprehensible than a flat age of consent of 12. And this correction makes the rest of this post rather moot, since it leaves only the NCGO's recommendation, which on its own now seems as simply an outlier. My apologies for the error.]

Whatever Justice Ginsburg thought about the recommendation that the age of consent in federal enclaves be lowered to 12, it seems striking by today's standards that such a recommendation would be offered. Yet in 1973, a Senate bill specifically made this suggestion, and as best I can tell it wasn't a part of a scheme in which there would be one (higher) age of consent when adults have sex with minors, and a lower one when two minors who are close in age have sex. The law would have made it legal for adults to have sex with 12-year-olds in federal enclaves (federal territories, federal admiralty jurisdiction, Indian country, at least in those cases where the tribes didn't have jurisdiction), plain and simple.

Likewise, the National Coalition of Gay Organizations' "1972 Gay Rights Platform in the United States" called for "Repeal of all laws governing the age of sexual consent." According to Laud Humphreys, Out of the Closets: The Sociology of Homosexual Liberation 162 (1972), the meeting at which this was adopted was apparently a pretty mainstream event within the liberal activist movement — "[s]upportive telegrams were received from Democratic candidates John Lindsay and George McGovern," which suggests that it wasn't just an entirely irrelevant fringe group.

Can anyone give me a sense of what was going on at the time? Were these just a few isolated events? Did they flow from a broader sexual revolution movement (even if they didn't represent everyone in that movement, and even if many in that movement would draw the line at consenting adults, or at least consenting teenagers-with-each-other-but-not-with-40-year-olds)? Did they come out of a broader children's rights movement, some branches of which believed in children's sexual autonomy rights? (Naturally others in a children's rights movement may support stronger statutory rape laws; again, I'm not speculating that some movement entirely or largely supported these proposals — I'm just wondering what intellectual stream these proposals flowed from.)

Incidentally, I realize that until recently the age of consent in many states was 14, and that even now it's 14 in some European countries (if this site is to be trusted); and I realize that deciding the proper age of consent is a complex matter. But (1) 12 isn't 14, (2) moving to cut the age of consent isn't the same as maintaining a longstanding low threshold, and (3) I'm not asking what the right age of consent is: I'm curious what was the ideological and political movement (if any) that led to the proposals that I mentioned. If anyone has any pointers on this, I'd love to hear them.

The Ninth Circuit, the Fourth Amendment, and Border Searches: If federal judges don't like the Justice Department's litigation strategy, should they say so in their opinions? And what kinds of criticisms of DOJ litigation strategy are persuasive? These questions have arisen in an interesting line of Fourth Amendment border search cases.

  First, some background. In recent years, the Justice Department, the Ninth Circuit, and the Supreme Court have been involved in a bit of a tug-of-war over the rules that should govern invasive car searches at the Mexico border. The source of the problem is that drug smugglers have been thinking up more and more creative ways to smuggle drugs across the border inside cars and trucks. Specifically, smugglers often remove parts of a car or truck and put in fake parts that are actually stuffed with drugs. Border agents then need to actually dissassemble the vehicles to find the drugs. Border agents typically select the cars they want to investigate by using trained dogs; the combination of a drug-sniffing dog and a nervous driver may be enough to persuade the border patrol agents that it is worth their time and effort to focus on a particular car.

  The question is, what Fourth Amendment rules should border agents have to follow to disassemble parts of a car at the border? Before the Supreme Court's decision in United States v. Flores-Montano, 541 U.S. 149 (2004), the Ninth Circuit (and a few other circuits, I think) had created a rather complex framework in which some types of steps taken to search and disassemble cars at the border were deemed "non-routine," requiring reasonable suspicion, while other types of steps were considered routine and required no suspicion. The goal was to require reasonable suspicion before the border patrol could take particularly invasive steps.

  The Supreme Court rejected this approach in Flores-Montano, a case involving the disassembly of a gas tank. The unanimous decision of the Court construed "the Government’s authority to conduct suspicionless inspections at the border" much more broadly than had the Ninth Circuit, and ruled that it could disassemble a gas tank without reasonable suspicion. In his decision, Chief Justice Rehnquist specifically criticized the Ninth Circuit for creating a doctrinal test that required reasonable suspicion for car searches at the border:
  The Court of Appeals took the term "routine," fashioned a new balancing test, and extended it to searches of vehicles. But the reasons that might support a requirement of some level of suspicion in the case of highly intrusive searches of the person–dignity and privacy interests of the person being searched–simply do not carry over to vehicles. Complex balancing tests to determine what is a "routine" search of a vehicle, as opposed to a more "intrusive" search of a person, have no place in border searches of vehicles.
  What difference does it make whether the police can take such steps with reasonable suspicion versus at any time, you may be wondering, given that the government ususally isn't going to bother to disassemble a car without some kind of individualized suspicion? My understanding is that the practical answer is the evidentiary hurdle. If the border agents need to establish reasonable suspicion, they need to document the suspicion and be able to prove it at a hearing in court. When the government's cause is based largely on a dog sniff, the government needs to establish the reliability of that particular dog in each case. If the agents do not need to establish reasonable suspicion, then the issue is one of law and there is no need for a factual inquiry or evidentiary hearing.

  All of this brings us to the latest round in the dispute, the Ninth Circuit's Sept 14th opinion in United States v. Chaudry. In Chaudry, a dog alerted to the presence of narcotics inside a pickup truck at the border. Border agents drilled a small hole in the bed of the pickup trick, revealing that it was a false truck bed stuffed with marijuana. The court recognized that the facts of the case fell within the principle of Flores-Montano, and ruled that the search was constitutional.

  The interesting part of the case is a special concurrence by Judge Betty Fletcher, as well as a shorter concurrence along somewhat similar lines by Judge Fisher. Judge Fletcher's concurrence had rather sharp words about the government's argument that the case was a simple application of Flores-Montano. According to Judge Fletcher, the government was engaging in "game-playing" by requiring the Ninth Circuit to apply the Supreme Court's precedent in Flores-Montano. If I understand Judge Fletcher's position correctly, the Justice Department deserved criticism for asking the Ninth Circuit to apply binding Supreme Court precedent rather than a line of overruled Ninth Circuit cases. The Justice Department probably could have followed the overruled Ninth Circuit cases without jeopardizing its convictions, Judge Fletcher reasoned; as a practical matter, agents were unlikely to go to the trouble of drilling into a pickup truck or dissambling a gas tank unless they already have reasonable suspicion. By refusing to put forward evidence of reasonable suspicion, permitting the Ninth Circuit to rely on its line of cases rather than the Supreme Court's opinion in Flores-Montano, the government had engaged in "game playing."

  Judge Fletcher offered two specific grounds for objecting to the government's strategy. Here's the first:
[S]uch appeals are essentially a request for an advisory opinion, as the dispute over whether or not a particular search may be conducted in the absence of any suspicion is an entirely fictional construct. Suspicion existed in each case, and in my view, review of cases at the appellate level is a waste of judicial resources. The only possible purposes are the government’s desire to push the envelope to its limits: to find out just how much destruction it can do without any suspicion, and to avoid proving it uses reliable dogs.
  Am I mistaken, or is this a rather odd argument? The government hadn't filed the appeal, and its winning argument asked the Ninth Circuit to apply a Supreme Court precedent that obviated the need for an evidentiary hearing. This preserved judicial resources at the trial level (no need for a hearing), and presumably made no difference at the appellate level (in that the defendant would have appealed the question of reasonable suspicion rather than the application of Flores-Montano). The fact that Judge Fletcher apparently wanted to approve the government's conduct on a different theory than the government wanted doesn't mean that the government is asking for an "advisory opinion."

  Here is Judge Fletcher's second argument:
  [B]ecause there is ample suspicion in each case, it is difficult for judges to consider the issue cleanly on an unencumbered record. Evidence of probable criminal activity, especially evidence of narcotics detector dog alerts, cannot help but color judges’ views of the facts. We inevitably think "harmless error." I must admit that I take comfort in knowing that the border agents in these cases did not rip apart the defendants’ cars on a whim. However, were I to decide a case where there is truly no suspicion, and where five or ten exploratory holes are drilled in the exterior walls of a vehicle, I might reach a different result.
  Again, this seems like a puzzling argument. I certainly appreciate Judge Fletcher's candor: If she resolves these cases based on whether she personally feels comfortable with the government's conduct, then I suppose there is nothing wrong with her saying so. And it may explain her objection to the government's argument, too; the government's approach makes it difficult for a judge to translate his or her instincts about what is comfortable into a Fourth Amendment test. The difficulty is that the Supreme Court's unanimous opinion in Flores-Montano seems to foreclose such a free-ranging inquiry. Am I mistaken, or is Judge Fletcher criticizing the government for making it hard to conduct an inquiry that the Supreme Court has instructed lower court judges not to follow?

  Perhaps we would be better off in a world of Judge Fletcher's Fourth Amendment, rather than the Supreme Court's opinion in Flores-Montano. So to be clear, I don't have specific criticism of her substantive approach. But am I right that Judge Fletcher's criticism of the government's litigation strategy is rather weak in light of the Supreme Court's decision? Or am I missing something? Perhaps I am misunderstanding the government's strategy, and perhaps I am misreading Flores-Montano or Judge Fletcher's concurrence? If so, please post a comment and I would be happy to post a correction.

Related Posts (on one page):

  1. DOJ Litigation Strategy.
  2. The Ninth Circuit, the Fourth Amendment, and Border Searches:
Justices with Specialized Expertise:

Steve Bainbridge has an interesting point on the subject; here's the conclusion:

If Bush nominates as a replacement for O'Connor someone with demonstrated specialized expertise in a field in which the other members of the court lack expertise, that nominee likely will end up with disproportionately large influence on court decisions within his/her field. If Bush picks a specialist, accordingly, the Senate would be well advised to go beyond the narrow question of whether the nominee is likely to vote to overturn Roe and also ask: What is the nominee likely to do in his/her field of expertise? Indeed, in the long run, that latter question may matter a lot more.

Cathy Young Has A Blog:

Boston Globe and Reason Magazine columnist Cathy Young, a link-to favorite of mine and Eugene's, has started a blog. Check it out!

[Puzzleblogger Kevan Choset, September 22, 2005 at 12:06pm] Trackbacks

There's a profession whose name has 12 letters. If you insert a hyphen after the second letter, you get an apt description for the profession of a certain prominent public official.

FAIR v. Rumsfeld Update:

Doug Lederman at Inside Higher Ed has an exhaustive and linik-filled article on the various positions of parties and amici of the FAIR v. Rumsfeld litigation, including links to a number of the amicus briefs that have been filed in the case. John Eastman has weighed in with a typically interesting and provocative brief making an originalist argument.

Paul Caron has more on Harvard's decision to reverse itself and to permit access to military recruiters after previously excluding them. An early summary of the positions in the case is here.

I'm Sure Karl Rove Is Listening: President Bush has promised to consult widely before announcing who he will choose to replace Justice O'Connor. Justice Ruth Bader Ginsburg apparently has interpreted this as an opportunity to give President Bush a bit of advice:
  Ruth Bader Ginsburg told an audience Wednesday that she doesn't like the idea of being the only female justice on the U.S. Supreme Court.
  But in choosing to fill one of the two open positions on the court, "any woman will not do," she said.
 There are "some women who might be appointed who would not advance human rights or women's rights," Ginsburg told those gathered at the New York City Bar Association.
  . . .
  "I have a list of highly qualified women, but the president has not consulted me," Ginsburg said during a brief interview Wednesday night.
  Hat tip: Howard.

Wednesday, September 21, 2005

Ivy League Moms and the NYT: Kieran Healy has an interesting update on the survey that led to a recent New York Times story on Ivy League women and their career plans.
Internet Time: Kaimi Wenger reports on a professor who sent out an article via ExpressO and received an offer of publication in 30 minutes. Now that's what I call an expedited review.
Justice Ginsburg's Past Endorsement of Lowering the Age of Consent to 12:

[UPDATE: Since posting this, I have concluded that Justice Ginsburg was likely the victim of a drafting error, and the report's critics, including me, themselves erred in not seeing the error. More here.]

Sen. Lindsey Graham recently said that Justice Ginsburg "represents the ACLU," "wants the age of consent to be 12," and "believes there's a constitutional right to prostitution." Timothy Noah (Slate's Chatterbox) calls this a "smear." Mr. Noah is far kinder to my earlier comments about the Ginsburg-age-of-consent matter, but still refers to them as "analytically faulty." He also faults "Edward Whelan, president of the conservative Ethics and Public Policy Center" for making the same "ridiculously distorted" "pro-pederasty accusation."

I've wanted to comment further on this ever since Mr. Noah's piece was called to my attention on Monday, but it took a day and a half for me to get the relevant source from the library. Now I have the data, and can say a few words about the issue, and about whether the charge is a "smear" or a legitimate allegation.

1. Justice Ginsburg is indeed on the record as having endorsed lowering the age of consent to 12. When she was a law professor at Columbia, she, Brenda Feigen-Fasteau, former director of the ACLU's Women's Rights Project, and 15 law students put together a report for the U.S. Commission on Civil Rights. The report, released in 1977, gave as one of its "Recommendations" (p. 102):

18 U.S.C. §2032 — Eliminate the phrase "carnal knowledge of any female, not his wife who has not attained the age of sixteen years" and substitute a Federal, sex-neutral definition of the offense patterned after S. 1400 §1633: A person is guilty of an offense if he engages in a sexual act with another person, not his spouse, and (1) compels the other person to participate: (A) by force or (B) by threatening or placing the other person in fear that any person will imminently be subjected to death, serious bodily injury, or kidnapping; (2) has substantially impaired the other person's power to appraise or control the conduct by administering or employing a drug or intoxicant without the knowledge or against the will of such other person, or by other means; or (3) the other person is, in fact, less than 12 years old.

The report also said (p. 97) that "Prostitution, as a consensual act between adults, is arguably within the zone of privacy protected by recent constitutional decisions" (citing the right-of-privacy cases), and urged that various federal prostitution statutes be "[r]epeal[ed]." This isn't precisely the same as saying that "there's a constitutional right to prostitution," because of the qualifier "arguably," but it's not that far off; the report wasn't merely impartially noting that this is one possible position, but seemingly endorsing it as the sounder position.

2. Was the quote, though, taken out of context? That, I take it, is the heart of Mr. Noah's argument. "Yes, the language Ginsburg quotes with approval puts the age of consent at 12, which does seem awfully young. But she isn't addressing herself to the age issue; she's addressing herself to the gender issue. Is her praise meant to constitute an endorsement of the entire bill? Of course not. Ginsburg makes this explicit in a footnote in which she complains that even this language 'retains use of the masculine pronoun to cover individuals of both sexes,' which at the very least is confusing if it's intended to outlaw statutory (and other) rape by women, too." (Here Mr. Noah is quoting from a 1974 version of this report; he didn't have a copy of Sex Bias in the U.S. Code.)

Yet then-existing federal law set the age of consent at 16. If the Ginsburg report had only intended to make the law sex-neutral, it could have done so without suggesting a new age of consent, or endorsing a proposed federal bill that lowered the age of consent. Yet the Ginsburg report's proposal recommended the replacement of a sex-specific age of consent of 16 with a sex-neutral age of consent of 12. It seems to me quite fair, and not a "smear," to fault the report for suggesting this change.

The report's recommendation tracked the proposal in a then-recent senate bill (S. 1400 § 1633), but the authors were perfectly free to urge their own language, or to urge a mix of the bill language and their own language. In fact, as Mr. Noah himself points out, the Ginsburg report criticized S. 1400's use of "he" to cover both men and women. If the Ginsburg report disagreed with the proposal's lowering of the age of consent to 12, the report could easily have noted that as well, or at least could have noted that it was agnostic about the age of consent, and was recommending only the sex-neutralization aspects of the S. 1400 proposal.

Moreover, the Ginsburg report isn't bashful about expressing itself on some matters besides sex discrimination. For instance, its criticism of prostitution bans isn't limited to objections that the bans discriminate based on sex (either on their face or in their enforcement); the report also argues that prostitution may be substantively constitutionally protected as part of people's sexual autonomy rights (p. 72 of the 1974 version, p. 97 of the 1977 version). The Report likewise faults the Mann Act, which "prohibits the transportation of women and girls for prostitution, debauchery, or any other immoral purpose" (emphasis mine) not just for its sex discrimination, but also because it is "too broad and vague," and an "invasion of privacy" (p. 73 of the 1974 version, p. 98 of the 1977 version).

Mr. Noah suggests that "Ginsburg didn't address the age-of-consent issue because it wasn't relevant to her topic. Say it with me. She wasn't writing about age; she was writing about gender!" Yet the report, though about gender and not about sexual autonomy rights, vagueness, or overbreadth, opined on a possible constitutional right to engage in prostitution, and the vagueness and breadth of the Mann Act. If the report's authors found fault with the Senate bill's proposed age of consent, they could likewise have easily said so. (Mr. Noah is right to point out that the report's authors continued to include the spousal rape exception in their recommendation, though it's probable that they didn't much like that exception. That part of the recommendation, though, maintained then-existing law, so presumably the drafters didn't want to take on a new fight there. The lowering of the age of consent, though, would have dramatically changed existing law, and it's hard to see why they would endorse the change if they didn't actually support the change.)

3. Mr. Noah also asks — based on my own observation that the version of S. 1400 § 1633 that I could find provided an age of 16, not 12 — "Could all this Sturm und Drang be over . . . a typo? A typo that, mysteriously, was transposed from Ginsburg's 1974 paper to the 1977 booklet? That would be too rich."

As it happens, I have just today found another version of S. 1400 § 1633 (excerpted in 13 Crim. Law Reporter 3011, Apr. 4, 1973), which did set the age of consent at twelve. This must be the version to which the Ginsburg report referred. Yet even if it were possible that the Ginsburg report simply had a copying error in it (I surely can't fault Mr. Noah for not having found the version that I couldn't find earlier myself), I don't see how this possibility would make Sen. Graham's and Mr. Whelan's criticism of Justice Ginsburg into a "smear," or even how it would "seriously undermine[ Volokh's original] argument" (Mr. Noah's words).

It seems to me that people are entitled to take others' proposals at face value, at least unless there's an obvious drafting error (to give a hypothetical example, imagine a proposal that mentions an age of consent of "sixteen days" instead of "sixteen years"). If the proposal's author then says "Whoops, I miswrote something," or even "Very sorry, a too-libertarian student added this, and I didn't catch it," we should certainly consider that explanation, and generally accept it. But unless such an explanation is forthcoming from the authors or others who know (and not just guess), it's no "smear" to accurately summarize and criticize others' writing.

4. Finally, I should certainly acknowledge that Sen. Graham was inexact in the tense of his statements that Justice Ginsburg "represents the ACLU," "wants the age of consent to be 12," and "believes there's a constitutional right to prostitution." Obviously, Justice Ginsburg represented the ACLU in the 1970s; she doesn't represent them as a lawyer now. Moreover, we don't know for sure that Justice Ginsburg, even if she endorsed every word in her report, would still recommend today that the age of consent be lowered to 12, or would still say that there's even "arguably" a constitutional right to prostitution. Justice Ginsburg's reputation as a judge in the 1980s and a justice since the 1990s has been of a relatively moderate liberal, not the harder-core liberal that seems to be visible in the pages of the reports. Perhaps she's changed her views (as Mr. Noah suggests), or, again, perhaps she didn't closely review every word that appeared in the initial report. But again it hardly seems like a "smear" to attribute to people their past views, unless they have specifically recanted their views; the more careful and precise usage is to make clear that Justice Ginsburg said she wanted this in the past, not that she wants it today, but the less careful usage is no smear.

* * *

It thus seems to me that Sen. Graham and Mr. Whelan are more sinned against than sinning here. They accurately reported or quoted the views expressed in the report that Justice Ginsburg cowrote. The accounts are indeed in context, given that the report was suggesting a change in the law, and that the report felt free to opine not just on sex discrimination but also on some substantive matters. Maybe there was an error in the report, maybe Justice Ginsburg didn't fully check everything the report contained, or maybe her views are different now. But it seems to me unsound to characterize Sen. Graham's statement as a "smear" or Mr. Whelan's accurate quotes from the Ginsburg report as "ridiculously distorted."

It's Secret, Unless You Read the Court's Website: The Second Circuit is expediting an appeal in a First Amendment case concerning whether the recipient of a National Security Letter for Internet account records can be required not to disclose that it is the recipient of such a letter. (This is the case known in the popular press as the librarians' challenge to the Patriot Act.) Meanwhile, the end of a New York Times story on the case suggests that the court's website may have accidentally disclosed the recipient's identity:
  Though the plaintiffs' organization has not been named in the various proceedings, a close reading of the court record suggests that it is Library Connection in Windsor, Conn.
  A search of a court-operated Web site offered a pointer to the plaintiffs' identity. There, a case numbered 3:2005cv01256 is listed under the caption, "Library Connection Inc. v. Attorney General."
[Puzzleblogger Kevan Choset, September 21, 2005 at 1:23pm] Trackbacks
A Writer, an Actress, a Singer, an Artist:

What do Virginia Woolf, Katherine Hepburn, Ray Charles, and Lee Krasner have in common?

Percy Shelley Buffs:

I start my Parent-Child Speech and Child Custody Speech Restrictions paper with the story of Percy Shelley, who lost custody of his children largely because he was an atheist. It would be really cool, I think, to get an epigraph from one of Shelley's poems that relates either (1) to a parent's love for his children, and pain at being parted from them, or (2) to Shelley's atheism. I assume there should be plenty of the latter, but I'm not sure about the former. I also need it to be terse, preferably a half dozen lines or less.

If any of you know your Shelley, or know people who know their Shelley, and can help out, I'd be much obliged. Please just post the answers, if any, in the comments. Many thanks!


Tuesday, September 20, 2005

2005 MacArthur Fellows Announced: The list is here. For more on the MacArthur Fellows program, see this post from last year.
Symposium on the Legacy of the Rehnquist Court: On October 27th and 28th, the George Washington Law Review will host a 2-day symposium on the legacy of the Rehnquist Court. Justice Ruth Bader Ginsburg will deliver remarks, and the symposium will include panels on federalism, the role of Solicitors General, criminal justice, the media, and national security law.

  The speakers for the symposim are a top-notch group. The panel on Solicitors General will be moderated by SG Paul Clement, and will feature Charles Fried, Ted Olson, Walter Dellinger, Drew Days, and Maureen Mahoney. The panel on national security law will feature John Yoo, Jack Goldsmith, Jon Turley, and Burt Neuborne. The media panel will feature Linda Greenhouse, Tony Mauro, David Savage, and Pete Williams. The panel on federalism will feature David Shapiro, Ernie Young, Roderick Hills, and Peter Smith. Last but not least, the panel on criminal justice will be moderated by Judge Carlos Lucero, and will feature Stephanos Bibas, Rachel Barkow, Steve Saltzburg, and Paul Butler.

  The location of the symposium will be GW Law School, 2000 H Street NW, Washington DC. Stay tuned for more details at the GW Law Review website.
Best Libertarian Blog:

Apparently Eugene actually does read it for the articles--I always thought that was just an excuse.

Deciding What To Exhibit:

The Green Bay Press Gazette reports (thanks to Bill Tyroler for the pointer):

A decision to pull a piece of art from a University of Wisconsin-Green Bay exhibit has spurred activism on the part of students and discussion about First Amendment issues across the campus and in the community.

The art in question is a sheet of mock postage stamps by artist Al Brandtner showing President Bush with a gun pointed at his head, captioned “Patriot Act.”

Some say it advocates assassination. Others say it’s free expression.

UWGB Chancellor Bruce Shepard says it’s not appropriate for the school’s gallery. . . .

Seems to me that a university is quite entitled to decide what material to put in its exhibitions. The exhibitions aren't public fora, open to all comers; the university must pick and choose what's worth displaying, and its choice is at least in some part an endorsement.

The viewpoint of the art is, I think, a constitutionally permissible factor to consider. They needn't, for instance, put up racist paintings; neither do they have an obligation to put up works that appear to endorse assassination. (I realize that art is often ambiguous, but the university may properly infer that most or at least many viewers will interpret it as conveying a certain message, a message that the university doesn't want to promote it.)

For the same reasons, I also don't think that the university is obligated by academic or artistic freedom to include this work. (I distinguish constitutional obligations, which are the minimum that a public university must comply with, from academic or artistic freedom obligations, which may go beyond what the law requires.) The university needn't exhibit works whose views they find repugnant.

The constitutional matter is not open and shut; NEA v. Finley suggested that the government may not engage in "invidious viewpoint discrimination" even when it's funding works based on a quality judgment. I's conceivable, then, that the NEA and other government funding agencies might have an obligation to fund racist artwork, pro-assassination artwork, and the like. But NEA v. Finley didn't squarely hold this, and didn't clearly define what constitutes "invidious viewpoint discrimination"; and beyond that, it seems to me that even if the government has a duty to be viewpoint-neutral in such funding programs, it may pick and choose what it displays in its own galleries.

Finally, note that the rule is indeed different when the government funds a wide range of private speech with no quality judgment, for instance when a public university funds student newspapers, when the government gives a tax exemption to nonprofit speakers, when the government provides subsidized mailing privileges to speakers, and the like. These sorts of programs are treated as "designated public fora," and the government may generally not engage in viewpoint discrimination in such fora. But, as I noted, university-run exhibits are not such take-all-comers programs; they necessarily involve government judgment about what to include, and thus a sort of government endorsement. This justifies the government in choosing which viewpoints it wants to endorse.

Conflict of Interest Scandal Rocks Volokh Conspiracy

and hundreds of law professors' offices throughout the country. Lawprof Ian Ayres complains, in the New York Times, about textbook prices -- a matter on which I express no opinion -- but goes on to say this:

[A]t the moment, professors' incentives in choosing textbooks are in some ways more distorted than doctors' incentives in choosing drugs. You see, I earn a $10.30 royalty on every copy of my textbook that a student buys. Instead of just trying to get the best book for my class (and to do so I should weigh both quality and price), I might also consider assigning my own book and increasing my profit.

This is a self-dealing transaction, which would be presumptively illegal if professors owed a fiduciary duty to students. Some professors realize this and donate to charity the royalties they earn when they assign students their own books.

So this year, I am going to do something different. I will give $11 to each of my contracts students who buys my book. That way, we will all know that I assigned the book for the right reason. The textbook isn't included with my students' tuition, but at least in my contracts class the royalty will be.

I actually worried a little about this when deciding what to do when teaching my own First Amendment class. Anyone trained to worry about potential conflicts of interest should indeed spot this one.

But on reflection, it struck me that the conflict of interest is illusory. Presumably I sincerely think that my textbook is the best one, quite apart from the modest money I make from textbook sales. It takes a tremendous amount of time to write and maintain a textbook -- probably in the thousands of hours, at least in the high hundreds. I make several thousand dollars from the textbook a year; I didn't write the book for the money. Rather, I wrote it because I thought I had a better way of organizing the material. The volume of effort, and the very modest financial reward, is a pretty good sign of my good faith. Perhaps this is different for some of the most popular undergraduate textbooks; but I suspect that the great majority of all textbooks make their authors only a fairly small amount of money.

Now it may well be that I'm wrong, and that other textbooks are better. (It's pretty clear that lots of other law professors think so!) But in any event, if my judgment is clouded here, it's clouded by my inflated ego, not by filthy lucre. And beyond that, even if other textbooks may be better for others to teach from, my textbook is probably better for me: I at least know my textbook inside and out, and can teach more effectively from it as a result; plus at least this way students don't get conflicting messages from the teacher and the book. (There is an argument that it's better for students to occasionally get such conflicting messages, but on balance I find that argument unpersuasive.)

So I don't think we need to worry too much about professors' judgment about which book to assign to their own student being swayed by their financial interest. I think people ought to indeed think about such potential conflicts; but here, there seems to me to less than meets the eyes. Aeon Skoble makes a similar point; Paul Caron blogs some more on it.

Backhanded Compliment:

We are apparently, not Playboy's choice for best libertarian blog -- but we are the blog that people supposedly should expect to hear described as the best libertarian blog.

"Bring it up when . . .," the column heading goes, and in our case continues "someone claims the Volokh Conspiracy ( is the best libertarian blog." The "it" to bring up is that Hit & Run is the better bet, and the snippet goes on to sing Hit & Run's praises. But we're just glad that someone out there is claiming that we're the best, even if it turns out that the someone is wrong.

In any case, I'll take runner-up to Hit & Run (which I much enjoy reading) any day; and Hit & Run is certainly more reliably libertarian than we are. Plus who says you can't read and enjoy both?

Services of Prostitutes -- From Crime to Government-Funded Entitlement in One Generation:

1973: Denmark substantially eases prostitution laws:

1999: Denmark fully legalizes prostitution, though apparently with the proviso that prostitution not be the prostitute's sole source of income.

Today: "[A] government campaign . . . pays sex workers to provide sex once a month for disabled people."

An Arizona Lawyer's Reminiscence About Chief Justice Rehnquist:

A very enjoyable piece; here's one of my favorite bits:

I left the justice at the hotel about 8 that night and picked him up the next morning. He told me how much he enjoyed his walk and that he had three or four beers at one of the "joints." He said he sat at the bar, talked and told jokes late into the night with a number of the bar's regulars. Just before he left to return to the hotel, he asked one of his bar mates, Pete, what he did for a living.

Pete told him that he drove a big-rig truck for Pacific International Express. In turn, Pete asked his new buddy "Bill" what he did for a living. Bill said to Pete and his bar gang, "Well, I work in Washington, D.C. I am a member of the U.S. Supreme Court."

Pete and the gang laughed heartily at Bill's joke or apparent fantasy, slapped him on the back and offered to buy him one more beer "for the road back to Washington and the Supreme Court."

Thanks to Marc Levin for the pointer.

[Puzzleblogger Kevan Choset, September 20, 2005 at 12:16pm] Trackbacks
More on Numbers of Friends:

Prove that in any group of people (no matter how large), there are always two people with exactly the same number of friends within the group. Note that we define friendship to be symmetric, so that if A is friends with B, then B is also friends with A.

UPDATE: Assume the group has at least two people.

The Case for Michael McConnell: Lots of people are wondering who the President will pick to replace Justice O'Connor now that John Roberts is well on the way to confirmation as Chief Justice. I don't have any special insight about who the President will choose: the President can consider any range of different personal and political factors. But if special insight is far beyond my ability, amateurish speculation based on a questionable assumption is not. So here is a little amateurish speculation based on a questionable assumption.

  Specifically, let's assume that the President is motivated purely by political considerations, both in terms of short-term goals such as the satisfaction of interest groups and the long-term goal of influencing the law. If those are the President's concerns, who among the names on the short list should he choose? I think the smartest pick would be Michael McConnell of the Tenth Circuit.

  Here's my thinking, starting with the long-term considerations and then turning to the short-term considerations:

  1. McConnell is conservative enough to be a key conservative vote in lots of important cases, but not so conservative that he would alienate a centrist like Justice Kennedy. The basic math here is counting to five; moving the law in a particular direction at the Court requires a particular distribution of viewpoints rather than a strength of them. A more conservative nominee doesn't mean a more conservative court, as what matters is the viewpoint of the center rather than the edges. McConnell is probably conservative enough to be a conservative vote in most of the kinds of cases in which five conservative votes are going to be feasible.

  2. McConnell would likely be a key ally of Chief Justice Roberts. My sense is that McConnell's views of the law are roughly in the Roberts camp: conservative but institutionalist.

  3. McConnell is by all accounts quite brilliant, and his intellectual leadership (together with Roberts') could help influence trends in American legal thought for a generation.

  4. Moving on to short-term considerations, a McConnell nomination would be controversial enough to please the Right, but uncontroversial enough that McConnell would likely be confirmed. Specifically, McConnell has been outspoken about abortion, but is also an extremely bright and and articulate person who has considerable bipartisan support.

  5. McConnell would stand up well to harsh questioning in Senate confirmation hearings. He would provide a good contrast with Roberts, too. While McConnell is just as sharp, balanced, and articulate as Roberts, he is less suave and more direct.

  6. Although McConnell is a white male, my sense is that nominating another white male won't have significant political ramifications for the Administration. I'm no expert on such questions, but I don't think there are many people who are hinging their support for the Administration on the race or gender of its Supreme Court nominees. Those on the right want a conservative; those on the left would be relieved to have a more moderate white male rather than a more conservative nominee who is a woman or a member of a minority group.

  That's my amateurish speculation, anyway. As always, comments welcome.
Comments Two of my GW colleagues, Paul Butler and Spencer Overton, are among the distinguished group of lawprofs participating in a new group blog featuring African-American law professors: Right now, Paul has a post up on Lil Kim and Martha Stewart; Spencer has a post up about his work with an election reform commission; and Sherrilyn Ifill is discussing the impact of Hurricane Katrina on Louisiana's political balance. Definitely check it out.
Simon Wiesenthal has passed away at the age of 96.
War on Porn "A Running Joke" at the FBI: The FBI is recruiting agents for an anti-obscenity squad, but career FBI agents aren't exactly eager to volunteer:
  Mischievous commentary [in response to FBI recruiting efforts] began propagating around the water coolers at 601 Fourth St. NW and its satellites, where the FBI's second-largest field office concentrates on national security, high-technology crimes and public corruption.
  The new squad will divert eight agents, a supervisor and assorted support staff to gather evidence against "manufacturers and purveyors" of pornography — not the kind exploiting children, but the kind that depicts, and is marketed to, consenting adults.
  "I guess this means we've won the war on terror," said one exasperated FBI agent, speaking on the condition of anonymity because poking fun at headquarters is not regarded as career-enhancing. "We must not need any more resources for espionage."
  Among friends and trusted colleagues, an experienced national security analyst said, "it's a running joke for us."
  A few of the printable samples:
  "Things I Don't Want On My Résumé, Volume Four."
  "I already gave at home."
  "Honestly, most of the guys would have to recuse themselves."
(Hat tip: Howard, naturally.) More on the response to obscenity prosecutions among career law enforcement personnel here.

Though most stuff in this genre is pretty mediocre, this is an exception: an adaptation by "mister snitch" of Dylan's great "Hurricane" [about the imprisonment of Ruben "Hurricane" Carter] to the actual hurricane that just swept through the Gulf region. With a nice, hard political edge to it, worthy of the original. Good stuff.

Monday, September 19, 2005

Proof That Justice Stevens Is Not A Lefty: Here and here. Go JPS! (Link: Howard)
In the Shadow of the Law: I recently finished Kermit Roosevelt's novel "In the Shadow of the Law," and I recommend it. I don't read a lot of novels, but I thought it was a very good read; it was both entertaining and thought-provoking. Hard to believe it was written by a law professor, though, as the writing was pretty crisp and there weren't any footnotes.
New York Times Op-Ed Page No Longer Available For Free Online: My thoughts on this are pretty similar to Kieran Healy's.
Old School: From the category of "things you didn't know about the late Chief Justice William Rehnquist":
  College freshman Dana Rehnquist was on her way to dinner with her brother and grandfather one night a few years back when the grandfather, a big movie buff, announced that he had just seen a "really raunchy" film.
  He loved it so much, he said, that even when his disgusted friends wanted to get up in the middle and leave, he ordered them to stay put.
  The chief justice of the United States Supreme Court, it turns out, was professing his admiration for the frat-house film Old School.
  Link via Wonkette.
N.Y. Times Supports Smart, Cautious Judge For Supreme Court: Or at least it did in 1993.
Gov Forces Withdrawal of Eviction Notices of Kelo Homeowners:

This may be symbolic, but it is now reported that the Connecticut Governor has used the leverage of threatening to withhold state money for the New London development to force a rescission of the eviction notices reported last week. The politics around this issue continue to remain interesting:

But the dispute re-energized calls for a statutory moratorium on land-takings until the General Assembly can agree on how to permanently limit the use of eminent domain - suddenly a potent political issue for the 2006 gubernatorial and legislative races.

House Republicans launched a petition drive Friday to force a special session on eminent domain, a possibility since the U.S. Supreme Court upheld the Fort Trumbull takings in June.


This is sort of fun for sports history enthusiasts.

Hugo, You Sure Called That One:

The Court's first modern "right to privacy" case is Griswold v. Connecticut (1965), which held that married couples have a constitutional right to use contraceptives. Eight years later, of course, Griswold was used as a foundation for the far more controversial Roe v. Wade, which recognized a constitutional right to abortion.

It turns out, though, that at least one commentator, saw the link between Griswold and Roe even in 1965. Here's part of the transcript:

[Justice Hugo Black]: Would your argument concerning these things you've been talking about relating to privacy, invalidate all laws that punish people for bringing about abortions?

MR. EMERSON [the lawyer for the challengers]: No, I think it would not cover the abortion laws Or the sterilization laws, Your Honor. Those--that conduct does not occur in the privacy of the home.

[Justice Black]: There is some privacy, as a rule, and the individual doesn't generally want it made known.

MR. EMERSON: Well, that aspect of it is true, Your Honor. But those are offenses which do not involve the type of enforcement apparatus as to what goes on in the home that this--

[Justice Black]: Part of it goes on in the home, undoubtedly.

MR. EMERSON: Part of it does, Your Honor. But the conduct that is being prohibited in the abortion cases rakes place outside of the home, normally. There is no violation of the sanctity of the home.

(The transcript doesn't identify the Justice, but Johnson, Griswold v. Connecticut 149 (2005), does.) Here, though, another Justice, steps in to help Emerson:

[Justice Byron White]: Well, apart from that, Mr. Emerson, I take it abortion involves killing a life in being, doesn't it? Isn't that a rather different problem from contraception?

MR. EMERSON: Oh, yes, of course.

[Justice White]: And isn't it different in the sense of the State's power to deal with it?

MR. EMERSON: Oh, yes. Of course, the substantive offense is quite different here.

Now here's the kicker: Justice Black dissented in Griswold, precisely because he disapproved of the principle that the federal courts should protect unenumerated rights. Justice White concurred in Griswold, reasoning that the Court should instead strike down the state law.

But then, eight years later, in Roe, Justice White dissented from the Court's decision recognizing a right to an abortion — a decision that Justice Black had more or less predicted, over Justice White's seeming disagreement, in 1965. What, I wonder, did Justice White say to the ghost of his late colleague, when he saw that Griswold had the very effect that Justice Black had predicted, but the risk of which Justice White had dismissed?

(Of course, one can certainly argue that the Court was right in Griswold even if this laid the foundation for what one sees as a wrong decision in Roe; or one can argue that Griswold and Roe are both right, or that the Roe majority would have decided the same way even had Griswold come out the opposite way. My point here is simply to note Justice Black's seeming prescience in predicting that the Griswold principle would be deployed to protect abortion.)

Thanks to Lynxx Pherrett for pointing me to this bit of history.

[Puzzleblogger Kevan Choset, September 19, 2005 at 12:26pm] Trackbacks
Mutual Friends

Prove that in any group of 6 people, there must be either a group of 3 people who are all mutual friends or a group of 3 people who are all mutual strangers. (Some assumptions: Friendship is symmetric — if I'm friends with you, then you're friends with me; and any two people are either friends or strangers.)

A Linebacker's Dream:

Sacking the quarterback? Making an Interception? Nah. Kicking an extra point.

UPDATE: For those who want a registration-free link, try this one.

Judicial Conservatism: Last week, I discussed "judicial conservatism" on the Kojo Nnamdi Show on WAMU-FM, DC public radio. Other guests were Professor Earl Maltz (Rutgers University School of Law at Camden) and Manuel Miranda (Founder and Chairman, Third Branch Conference). You can hear it here in either Real Audio or Windows Media Player (links on right side of page). My segment begins at 13:06.

I think the term "judicial conservatism" is properly reserved for the philosophy of judicial restraint or deference to majoritarian branches, but the show used it to encompass originalism, even where adhering to original meaning leads to striking down legislation.

PS: I know I have not been blogging of late, but teaching and other duties, combined with commuting from DC to Boston, have absorbed all my extra time. I am really enjoying my visit to Georgetown so far—the students and collegiality have been terrific—but it has been draining . . . in a good way.

Sunday, September 18, 2005

Broder on Roberts: In today's Washington Post, David Broder offers his take on the Roberts nomination:
  [John Roberts] is so obviously — ridiculously — well-equipped to lead government's third branch that it is hard to imagine how any Democrats can justify a vote against his confirmation.
  Unsurprisingly, the New York Times editorial page has a more creative imagination than Broder. (Hat tip: Howard)