Saturday, March 29, 2008

Threats Cause Fitna To Be Taken Down By Its Hosting Service:

The Hollywood Reporter reports:

The controversial anti-Muslim film by Dutch right-wing politician Geert Wilders has been removed from the Web by its British Internet provider, which said its employees have been seriously threatened.

"Following threats to our staff of a very serious nature and some ill-informed reports from certain corners of the British media that could directly lead to the harm of some of our staff, has been left with no other choice but to remove 'Fitna' from our servers," the company said....

The thuggery of those making the threats is appalling, though unsurprising. Thanks to Dan Schmutter for the pointer.

UPDATE: Thanks to readers who responded to my request for pointers to other copies of the film; there is a list of pointers here, a Wikileaks copy here, and Dutch versions elsewhere. That's the beauty of the Internet.


The Detroit Mayor Case and the Stored Communications Act: The Detroit News reports:
  Text messages that led to perjury and other charges against Detroit Mayor Kwame Kilpatrick could remain shielded for at least another three months -- and a judge reviewing the case is expressing doubts they can ever be made public.
  Wayne County Judge Robert Colombo, backtracking slightly, said the federal Stored Communications Act may prevent him from obtaining the messages from the city's provider, SkyTel, with just a subpoena. But Colombo said he may be able to get the messages by ordering Christine Beatty, the mayor's former chief of staff, to request them from the company.
  "There are questions," he said.
  There are questions, but fortunately there are answers, too. To compel the text messages, which are more than 180 days old, a mere subpoena is enough under 18 U.S.C. 2703. And the messages already obtained can be used regardless of whether they were originally obtained legally because there is no statutory suppression remedy in the statute for violations (I think one should be added, but there isn't one now). Plus, there aren't any Fourth Amendment issues under O'Connor v. Ortega because the Detroit mayor's office had a workplace monitoring policy eliminating privacy in communications sent over goverment-provided networks. So while the legal issues may confuse the judge for a bit, those texts are admissible.

Big Government to the Rescue: From the Washington Post:
The Bush administration is finalizing details of a plan to rescue thousands of homeowners at risk of foreclosure by helping them refinance into more affordable mortgages backed by public funds, government officials said.

The proposal is aimed at assisting borrowers who owe their banks more than their homes are worth because of plummeting prices, an issue at the heart of the nation's housing crisis. Under the plan, the Federal Housing Administration would encourage lenders to forgive a portion of those loans and issue new, smaller mortgages in exchange for the financial backing of the federal government.

The plan is similar to elements in legislation proposed two weeks ago by Barney Frank (D-Mass.), who chairs the House Financial Services Committee, officials said. . . . If enacted, the plan would mark the first time the White House has committed federal dollars to help the most hard-pressed borrowers, people struggling to repay loans that are huge relative to their incomes and the diminished value of their homes.

VC March Madess Pool:

As we head into the Elite Eight today, the VC March Madness pool is wide open. Most of the front-runners have chosen North Carolina to go all the way, so if that happens they will presumably remain bunched at the top of the pack. Conspirators Jim and Ilya are both still in the hunt as well. Recall that correctly picking the regional champs is worth 8 points, the finalists is worth 16, and the champion is worth 32, so there is still a lot of movement available in the standings.

Yours truly is tied for 49th. In addition, one Doc Nix bobblehead is on its way to Rick Garnett, whose Notre Dame squad easily took down George Mason on the opening night of the tournament and thereby messed up my bracket. The good thing about being clearly out of the race is now I can simply enjoy the tournament.

Ironically, the entrant named "Davidson Dispatch" only had confidence in his team to go one round so while he remains in the hunt is still 5 points off the pace.


Friday, March 28, 2008

"A New Zealand Man Who Claimed He Was Raped by a Wombat

and that the experience left him speaking with an Australian accent has been found guilty of wasting police time," reports the Telegraph (U.K.). "Police prosecutor Sergeant Chris Stringer told the court that alcohol played a large role in [the man's] life." To put your mind at rest, "Although powerfully built and about the size of a small pig, [wombats] are very rarely dangerous."

Thanks to Victor Steinbok for the pointer.


Law Review Article Discussed At Oral Argument: It's not every day that a law review article is relevant to actual law, much less discussed in a Supreme Court oral argument. But it happened this week in Indiana v. Edwards, a case on the rights of criminal defendants to proceed without a lawyer. The article was by my good friend Erica Hashimoto: Defending the Right to Self Representation: An Empirical Look at the Pro Se Felony Defendant, 85 N.C. L. Rev. 423 (2007). From the oral argument transcript:
JUSTICE BREYER: I was interested in . . a few empirical facts, because we'd heard lots of complaints from trial judges who said this makes no sense at all. Very disturbed people are being deprived and end up in prison because they're disturbed rather than because they're guilty.

Now, I wanted to know the facts. And it seemed to me we have a excellent, really fabulous — that this has happened — and Professor Hashimoto seems to have gone and written, done research, which we have in front of us. As I read that research, I first learned that actually the pro se defendants don't do a bad job of defending themselves. And by and large, they do surprisingly well. And so perhaps that eliminates some of the concern.

But the other thing that it tells me is that there is a small subclass of pro se defendants who may in fact do badly. And we have in front of us one of those individuals and that, therefore, a rule which permitted a State to deal with this subclass of disturbed people who want to represent themselves, who could communicate with counsel, but can't communicate with anybody else, that if we focus on that subclass and accept the State's argument here, interestingly enough, we've gone a long way to deal with a serious practical problem, and we've advanced the cause of seeing that individuals have a fair trial. So I'd like you to comment on that, and that was my reaction after reading that study.
Pretty cool. In addition, I trust Erica will make up for the lost academic street cred triggered by this real-world reference with the publication of her current work-in-progress, Towards a Metaphysics of the "Id" in 14th Century French Self-Representation: A Lagrangian Mechanics Approach.

Related Posts (on one page):

  1. A Problem A Lot of Law Professors Would Like To Have:
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High School Students' Copyright Lawsuit Against Anti-Plagiarism Site Rejected:

The opinion is here. The court quite correctly accepts the site's fair use claim. The court also accepts the site's clickwrap contract defense (a conclusion that might be more controversial, though I think the site's reasoning is still correct); but that doesn't really matter to the bottom line given the fair use result.

For more on the case, see my initial post from when the case was filed last year. Thanks to David Post for the pointer.


Property, Popular Mobilization, and Protection for Constitutional Rights:

In a series of interesting posts (e.g. here) on popular mobilization and constitutional law, Jack Balkin argues that the Supreme Court often responds to changing public opinion and political mobilization in formulating its decisions. For example, he suggests that if the Court holds that the Second Amendment protects an individual right, that may in part be the result of strong public opinion supporting such an outcome. I don't doubt that the Court sometimes responds to public opinion in that way. However, property rights is a noteworthy counterexample. As I discuss in this paper on the massive political backlash to Kelo v. City of New London (now under submission to law reviews), most of the public (including even most self-described "liberals" and "Democrats") favor much stronger protection for property rights than the Court has so far been willing to provide.

An alternative route for popular mobilization to strengthen protection for constitutional rights is through its influence on legislative action. As I argue in the paper, Kelo has indeed stimulated an enormous amount of new legislation, including new federal laws and eminent domain reform in 42 states. However, even in a case where the overwhelming majority of the public favors stronger protection for individual rights, structural aspects of the political process largely prevented them from getting their way. As I explain in the abstract:

The Supreme Court's 2005 decision in Kelo v. City of New London, which upheld the power of government to condemn private property for purposes of economic development, generated a massive political backlash from across the political spectrum. Over forty states, as well as the federal government, have enacted post-Kelo reform legislation to curb eminent domain. This Article is the first comprehensive analysis of the legislative response to Kelo. It challenges the validity of claims that the political backlash to Kelo will provide the same sort of protection for property owners as would a judicial ban on economic development takings. Most of the newly enacted post-Kelo reform laws are likely to be ineffective.....

Thirty-five state legislatures have enacted post-Kelo reform laws. However, twenty-one of these are largely symbolic in nature, providing little or no protection for property owners. Several of the remainder either have significant loopholes or were enacted by states that had little or no history of condemning property for economic development...

I contend that the ineffectiveness of post-Kelo reform is largely due to widespread political ignorance. Survey data collected for this Article shows that only 13% of Americans know whether or not their home state has enacted effective post-Kelo eminent domain reform. The political ignorance hypothesis accounts for three otherwise baffling anomalies: the sudden emergence of the backlash after Kelo in spite of the fact that the decision made little change in existing precedent; the passage of ineffective laws by both state and federal legislators; and the fact that post-Kelo laws enacted by popular referendum tended to be much stronger than those enacted by state legislatures.

Popular mobilization undoubtedly plays an important role in protecting constitutional rights favored by public opinion. But such "backlash politics" also has severe limitations that are underappreciated in the current literature on the subject. The Kelo backlash provides an important example of those limits in a case where public opinion was overwhelmingly on one side of the issue, yet still largely failed to get its way.


More on Elton John Fundraising for Hillary Clinton:

Extreme Mortman quotes my earlier post, and follows up with a response from Richard Andrews:

If the FEC is determined to sit on its hands about this, don’t see much that can be done.

However, note that the ‘No’ decision in Opinion 1981-51 was specifically about the highly valuable services of an artist being used for fund raising, while ALL the other ‘Yes’ Opinions noted are about the everyday acceptance of essentially de minimus value munchkin services at the very bottom of a campaign -- the ones that, if you had to pay even minimum wage for them, you would just do without (the same attitude that causes campaigns to pretend their employees are ‘contractors’, to avoid paying unemployment compensation tax) -- envelope licking, driving folks around, etc.

The FEC seems rather determinedly of two minds about this -- it is bizarre for Opinion 1987-25 to have expressly stated that it was NOT over-ruling Opinion 1981-51, when they flatly contradict one another. Guess they just want to make it up as they go along.

I had thought of this distinction between high-value and low-value volunteer services, but I don't think it's right. Recall that contributions by Americans to campaigns are also limited -- they're just capped at $2300 ($1000 until not long ago), rather than entirely forbidden as to foreigners. Clearly the value of a Chuck Norris or Barbra Streisand performing at a campaign event is over $2300. Yet that's allowed; why?

Because the volunteer services exception is not limited to low-value services, but includes all volunteer servics. FEC Advisory Opinion 2007-08, which I cited to, expressly takes this view as to volunteer performances by high-value entertainers at candidate events. And if such high-value volunteer help isn't a "contribution" and is thus exempt from the cap on donations by everyone, then it isn't a "contribution" and is thus exempt from the ban on donations by foreigners. That's the logic of U.S. election law, as reflected in the sources I mentioned in my earlier post.

The one possible response, I think, is that the federal law banning foreign contributions covers "contributions or donations," and not just "contributions." But I checked with several election lawyers on this, and their view is that the addition of "or donations" was understood as covering soft money, not as prohibiting volunteer services that would otherwise be allowed. Certainly nothing in the term "donation" suggests such a prohibition, or a distinction between high-value services and low-value services (and recall that the FEC has expressly said that volunteer services by foreigners are generally allowed).

Related Posts (on one page):

  1. More on Elton John Fundraising for Hillary Clinton:
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Ambiguous Polling Question: Starting in 1937, the Gallup Polling organization has run an occasional poll on U.S. attitudes towards the death penalty, Here's the main question Gallup asks:
Are you in favor of the death penalty for a person convicted of murder?
You can see a chart of the answer over time here. I find the question puzzling, though. Consider some of the possible interpretations. It could mean:
Are you in favor of the death penalty for every person convicted of murder?
Are you in favor of the death penalty for some people who are convicted of murder?
Are you in favor of the death penalty for people who commit particularly heinous murders?
Are you in favor of prosecutors having the option of seeking the death penalty for people who commit particularly heinous murders, if a jury first convicts and then agrees?
Obviously a poll question can't capture every nuance. And perhaps most people would answer all of these questions the same way. Still, Gallup's question strikes me as unusually unclear.

Breaking the Logjam - Conference and Blog:

Today and tomorrow is the NYU/NYLS conference on Breaking the Logjam: An Environmental Law for the 21st Century. The conference organizers have also launched a blog to further the discussion of environmental reform started at the conference.

For my own part, I will be presenting my paper on reforming America's hazardous waste laws tomorrow morning.


Kovacic Named Chair of FTC:

Bill Kovacic has been named by President Bush to Chair the Federal Trade Commission. Bill was General Counsel when I was the Director of the Office of Policy Planning at the FTC and it was one of my great pleasures to work with him. Note that because he has been confirmed as a Commissioner already, his appointment as Chair requires no further confirmation.


Kennedy v. Louisiana: Based on a quick skim of the briefs in Kennedy v. Louisiana, the forthcoming Supreme Court case on whether the Eighth Amendment prohibits the death penalty for the rape of a child, my impressions are prettty similar to those that Mike Mannheimer made in a post a week ago over at CrimProf Blog:
The thing that struck me most after reading the briefs . . . was the sense of role reversal from Atkins v. Virginia and Roper v. Simmons. Kennedy is almost the mirror image of those cases in several respects.

First, in Kennedy, it is the State that is relying heavily on social science data to prove the irrevocable harm to the victim of child rape, to distinguish the case from Coker v. Georgia, which holds that the death penalty is unconstitutionally disproportionate for the rape of an adult woman. One section of the Respondent's brief is replete with references to articles from social science journals discussing all the harms caused by child rape, many manifesting themselves later in life. This is reminiscent of the social science data relied upon so heavily by the defendants in Atkins and Roper to support the proposition that the mentally retarded and juveniles, respectively, are, as a class, less culpable and deterrable than other offenders.

Second, only six States capitalize child rape, a number that ordinarily would greatly help the defendant in showing that there is a national consensus against the death penalty for child rape. But, as the Respondent points out, Atkins and Roper both emphasize not simply the raw numbers in determining whether there is a national consensus, but "the consistency of the direction of change." In Atkins and Roper, the defendants both successfully argued that, even though only 30 of the 50 States -- and only 18 of the then-38 death penalty States -- banned the death penalty for the mentally retarded and juveniles, respectively, "the consistency of the direction of change" showed an emerging national consensus because a number of States had recently enacted such bans.

In Kennedy, the State is able to flip this logic to their advantage by showing that all six States that capitalize child rape have done so within the last dozen years or so. Thus, "the consistency of the direction of change" in this context shows the lack of any national consensus because more States continue to capitalize child rape, breaking down whatever national consensus might otherwise exist. Moreover, while the defendants in Atkins and Roper were able to emphasize that the numbers of States enacting such bans were even more significant given the relative unpopularity of legislation that could be seen as "soft on crime," the State here can argue that the number of States capitalizing child rape is all the more significant in the face of the fact that many State legislators likely read Coker as banning the death penalty for all rape.
  Of course, whether any of this matters depends on whether Eighth Amendment doctrine should be taken seriously -- something that unfortunately is always an open question when it comes to the Supreme Court's Eighth Amendment decisions.

  For results of a VC reader poll on attitudes toward the desirability and constitutionality of a state law imposing the death penalty for rape of a child, see here.

Thursday, March 27, 2008

California Court Agrees to Rehear Decision That Found Home Schooling To Be Illegal:

The Alliance Defense Fund reports the news.

Related Posts (on one page):

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Study on "Indoctrination" by College Professors:

Inside Higher Ed (via Instapundit):

One of the key arguments made by David Horowitz and his supporters in recent years is that a left-wing orientation among faculty members results in a lack of curricular balance, which in turn leads to students being indoctrinated rather than educated. The argument is probably made most directly in a film much plugged by Horowitz: Indoctrinate U."

A study that will appear soon in the journal PS: Political Science & Politics accepts the first part of the critique of academe and says that it’s true that the professoriate leans left. But the study — notably by one Republican professor and one Democratic professor — finds no evidence of indoctrination. Despite students being educated by liberal professors, their politics change only marginally in their undergraduate years, and that deflates the idea that cadres of tenured radicals are somehow corrupting America’s youth — or scaring them into adopting new political views.

A comment on the IHE article provides the obvious objection:

Am I the only one who sees a problem with the way the data was collected, as self-assessment, rather than measured against some objective criteria? If a student grew up in a conservative household, but were a bit more liberal than their parents, they may rate themselves as moderate or slightly liberal when they enter college. After spending 4 years exposed to predominately liberal professors, their views may have moved significantly to the left, but their frame of reference has also shifted to the left, so they perceive themselves still being moderate or only slightly liberal.

I certainly knew some students at Brandeis who started as moderates, but thought of themselves as conservatives by the time they graduated, even though their views had shifted at least somewhat leftward, because they were in fact moderates relative to the population as whole, but conservative relative to Brandeis faculty and student politics. In other words, the study proves nothing (or, more precisely, doesn't provide persuasive evidence).

UPDATE: There were also some students who were driven to the right by some of what they encountered in politicized departments like Sociology and English. True story, recounted to me by a classmate and friend:

English T.A.: "Was anyone in this class disturbed, as I was, by the absence of women characters in this book?" Student, frustrated by weeks of this sort of thing: "What do you expect, it's a book [Moby Dick] about whaling! There were no female whalers!"


Geert Wilders' Fitna: What Do You Think About It?

I posted my thoughts on this short film below, but what are yours? Please leave your comments here, once you've watched the movie. And please focus primarily on the movie itself, or the reaction to it, rather than on the broader debates about Islam (though when you're commenting about the movie, you may of course refer to the relevant parts of the broader debates).


More on New Jersey Attorney General's Investigation of

New Jersey Star-Ledger columnist Paul Mulshine has more, including this:

The attorney general contends that the site is violating the consumer fraud act because it fails to "honor the terms and conditions that it informs the public it will adhere to."

I called consumer affairs spokesman Jeff Lamm and asked him to direct me to any terms and conditions on the site that are binding on the operator. If such terms or conditions existed, I reasoned, then JuicyCampus must have hired the dumbest lawyers on the planet.

It didn't. Although Lamm said he was told by the attorney general's legal staff that "there were representations on the site about people who visit the site being able to report objectionable or malicious content or content that violates one's right to privacy," he couldn't direct me to any such representations.

In fact, the site's FAQ (frequently asked questions) section goes out of its way to tell complainers to buzz off. The answer to the question "What if I see a comment that isn't true?" amounts to five paragraphs of the old saying "Sticks and stones may break my bones, but names will never hurt me."

Then there's this:

"Q. I'm offended!

"A: Sorry. Also, that's not a question ..."

David Wald, Milgram's spokesman, said the site is fraudulent because "there's no avenue to remove postings." But that would be fraudulent only if the site's operators had promised to remove postings. They didn't. And of course there are tens of thousands of other websites out there that offer no avenue to remove postings. Are they all subject to $10,000 fines under New Jersey consumer law?

The American Civil Liberties Union doesn't think so. "I can't fathom how the AG could consider this a target for a consumer fraud claim," said Deborah Jacobs of the New Jersey chapter....

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Mumia Abu-Jamal Death Penalty:

The Third Circuit has just affirmed the district court decision, which upheld the conviction but vacated the death penalty. "As the District Court noted, the 'Commonwealth of Pennsylvania may conduct a new sentencing hearing ... or shall sentence [Abu-Jamal] to life imprisonment.'"

Judge Ambro dissents, arguing in favor of "remand[ing] for the District Court to complete an analysis of the remaining steps of the Batson [race-based peremptory strike] claim, starting at step two, where the burden shifts to the Commonwealth to 'come forward with a neutral explanation for challenging black jurors.' If the Commonwealth does so, the Court should proceed to step three and assess whether the reason(s) given are valid or pretextual in determining, on the basis of the evidence presented, whether purposeful discrimination did occur."

I haven't followed this case carefully, and thus have no opinion to express; but it's prominent enough that the news struck me as worth noting. Thanks to reader Hugh Greentree for the pointer.


Multiculturalism as a Traditional American Value:

A commenter asks, "Could someone please explain how multi-[culturalism] is valuable in and of itself? I've never understood this argument, much as I've never understood why language death is such a bad thing. It seems to me that multi-[culturalism] should only be as valuable as what the component cultures bring to the table."

I certainly don't think that we should treat multiculturalism as an unalloyed good, but we should also realize that our nation was founded on multiculturalism, in two important ways. First, the premise of federalism is precisely that multiple states, which the Framers envisioned as often having substantial differences in culture, should be able to retain their cultures -- including, incidentally, the legal rules that flow from those cultures. (Within states, home rule by localities has had a similar, though lesser, mission.)

Second, the Constitution and the Bill of Rights contemplate a country with considerable range of religious views and even religious cultures. Many of the Founding-era American denominations were distinct cultural groups, such as Quakers, including groups that lived in relatively homogeneous enclaves.

These aren't just multiculturalist values. They are foundational American values. And throughout American history, they have been (or at least could be) seen as serving at least several different goals.

1. Multiculturalism as increasing minority members' happiness: Religious tolerance -- coupled with federalism and localism -- has often allowed people to live, be free, and pursue happiness in America without having to sacrifice or hide their belief systems.

2. Multiculturalism as an engine of the search for truth: Both federalism and religious diversity often produce a wide range of options -- ideological and governmental -- that then compete with each other. In federalism, this was known as the "states as laboratories of democracy" model. For religious and other ideologies, this best fits the metaphor of the "marketplace of ideas."

3. Multiculturalism as a source of valuable citizens: The tolerance for a wide range of religious belief systems has drawn more people to the nation, and has avoided their banishment. The development of the atomic bomb during World War II, which relied heavily on European (and often Jewish) scientists who fled Hitler, is one illustration of the value of ethnic and cultural tolerance; the benefits Americans have gotten from past generations of immigrants is another.

4. Multiculturalism as a source of knowledge for dealing with a multicultural world: The world is filled with lots of different cultures, whether we like it or not. Extra experience with different cultures within the U.S. helps us deal with other cultures outside the U.S. -- for instance, by giving us a pool of American citizens who actually know the foreign language or culture, or by making other citizens more familiar with dealing people of other cultures more generally.

Now it should be obvious that these are not unalloyed strengths. Multiculturalism can be a sort of domestic tension (consider the Civil War, which had cultural components, plus of course lots of other ethnically, culturally, and religiously based civil wars in other countries). Some of the cultures may teach their members to prey on outsiders (consider cultures which endorse slavery). Some of the cultures may teach their members to prey on insiders, so that tolerating the culture may give extra happiness to some members at the expense of other members. Some of the immigrants from other cultures may come to be dangers to the nation rather than assets. There are doubtless other possible problems as well.

And it should also be obvious that, because of this, we should properly calibrate our tolerance for multiculturalism with our insistence on also supporting a unified national culture. We shouldn't completely stifle all rival identities (such as Catholic, Jewish, Irish, Chinese, or whatever else), but neither should we neglect the building of an American identity. We should accommodate some religious or cultural objections to generally applicable laws, and of course we have done so for centuries in countless ways; but there are some that we shouldn't (and don't) accommodate, for instance when the objection would lead to substantial harms.

But it's also important to recognize that multiculturalism is not valueless, alien, or new. Even without reference to specific valuable aspects of specific cultures, it has some general value. It's a mistake, I think, to try to fight multiculturalism in general. Rather, we should defend those aspects of American multiculturalism that have served us well -- and are likely to continuing doing so -- and fight those aspects that are likely to be harmful.


I'm Now Watching Geert Wilders' Fitna,

at LiveLeak. (It appears to match the description given in this Reuters account.)

UPDATE: I just finished watching the movie. Parts of it are an indubitably sound reminder of the dangers posed by extremist Islam, and the support that it finds from some traditional Islamic religious teachings.

Other parts assert that extremist Islam is a problem at the heart of the Islamic world generally, and of Islam in the Netherlands and in Europe, and not just a tangential matter (the way that fundamentalist Mormon outliers are tangential to modern Mormonism, or, even more extremely, the way the Branch Davidians were tangential to the Seventh-Day Adventists from whom they sprang). But here too Wilders' view seems sound: Unfortunately, while by all accounts most Muslims do not adhere to the extremists' views, the extremist movement is prominent enough in Middle Eastern and European Islam that it is indeed a peril to freedom.

Nor does the rhetoric strike me as excessive. This is of course a rhetorical work, not an academic inquiry, and it's trying to stir people emotionally. But I didn't see much of hyperbole or gratuitious insults. Wilders is arguing against an important and dangerous ideological movement; my sense is that his approach is well within bounds of legitimate criticism.

So I think this is a significant contribution to the ideological debate, and it seems to me that we -- and especially Wilders' fellow Dutch, to whom he is speaking most specifically -- should take it seriously, naturally together with whatever responses might come out.


Foreign Musicians Voluteering to Raise Funds for American Candidates:

Extreme Mortman points to a fundraising concert scheduled for April 9, and suggests that — if John is performing for free — this may be an illegal foreign contribution by John to the Clinton campaign. Is that so?

I'm not an expert in this corner of federal election law, but I think that John and Clinton are just fine, even if he's performing for free or for well below market rates (a factual assumption I will make for purposes of this post). Federal law does ban contributions by foreign nationals, but "contribution" is defined to exclude volunteer activities (see FEC Adv. Op. 2007-22, FEC Adv. Op. 2004-26, and FEC Adv. Op. 1987-25; see also FEC. Adv. Op. 2007-08, which takes a similar view). Likewise, 11 C.F.R. § 100.74 expressly provides, "The value of services provided without compensation by any individual who volunteers on behalf of a candidate or political committee is not a contribution."

The one possible twist is that FEC Adv. Op. 1981-51 specifically held that a foreign artist was not allowed to create a limited-edition artwork that would then be distributed for free by the campaign. FEC Adv. Op. 1987-25 expressly declined to reverse 1981-51; the FEC Foreign Nationals brochure expressly notes that there's some possible tension between the two. But in light of the more recent opinions (especially 2007-22), and of 11 C.F.R. § 100.74, it seems likely that the legal distinction is between services — which would include even valuable performances — and goods, such as tangible artworks. John's performance seems to fall on the permissible volunteer services side of the line.

Thanks to InstaPundit for the pointer; and thanks to Allison Hayward, Alex DeMots, and Steven Sholk for their help.

UPDATE: A Clinton campaign press release quotes an FEC spokesman as saying the same: "I did not intend to convey in my conversation with the Washington Times reporter that there is anything unlawful about Elton John performing in a concert to raise money for a US presidential candidate. The Advisory Opinion 2004-26 is clear in the circumstances of the request that foreign nationals may volunteer and may even solicit contributions from non-foreign nationals, provided they are not soliciting other foreign nationals."

Thanks to a commenter for the pointer.

Related Posts (on one page):

  1. More on Elton John Fundraising for Hillary Clinton:
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Wednesday, March 26, 2008

Should the United States Obey the Decisions of the International Court of Justice?

The Supreme Court's refusal to force Texas to obey the International Court of Justice's decision in Medellin raises the more general issue of whether it is a good idea for the US to obey ICJ rulings that override US domestic law. Academics and others who defend the use of international law to displace domestic law argue that the US should pay greater deference to the ICJ.

In my view, there is little reason to believe that ICJ decisions are likely to establish better legal rules than those produced by our domestic law. As John McGinnis and I discuss in this article, the ICJ and other similar international courts are deeply suspect because most of their judges represent oppressive dictatorships or, at best, unaccountable elites from democratic states. This "democracy deficit" of ICJ rulings greatly reduces the chance that an ICJ decision overriding US law will impose a better rule than the one it displaces.

US law has many flaws, some of which I love to flog here on the VC. However, it is produced by a generally democratic political process that imposes at least modest checks on the power of elites. By contrast, many of the ICJ's judges are representatives of authoritarian or totalitarian governments. Among the court's current 15 menbers are 7 who represent authoritarian or dubiously democratic regimes, including judges from Russia, China, Jordan, Morocco, and Venezuela. In this 2004 paper, Eric Posner and Miguel de Figueiredo provide evidence showing that the ICJ's judges are biased in favor of their home country's interests and those of other states with similar ideologies and ethnic characteristics. Even the judges appointed from democratic states get their positions through highly nontransparent processes that have none of the checks and balances of, for example, the US Supreme Court nomination process. How many US lawyers (to say nothing of ordinary citizens) have even heard of Thomas Buergenthal, the American member of the ICJ?

The fact that the ICJ is composed of representatives of dictatorships and unnaccountable elites doesn't mean that all of its decisions are wrong or that it will never come up with good legal rules. On average, however, the legal rules established by a democratic process are likely to be superior to those promulgated by the minions of repressive regimes and unrepresentative legal elites who dominate the ICJ. In the human rights field in particular, representatives of dictatorships have strong incentives to promote rules that facilitate repression rather than freedom.

Despite the ICJ's institutional flaws, it might still be advantageous for the US to adhere to ICJ rulings in particular instances. For example, commitment to obeying ICJ decisions in a particular sphere might be necessary to obtain valuable concessions from other nations in a treaty negotiation process. However, the US and other democratic states should not obey the ICJ merely because of any independent legitimacy its decisions have or because those decisions supposedly constitute binding international law. Doing so is likely to saddle us with legal rules systematically inferior to the ones the domestic lawmaking system produces.

There is much to decry in contemporary American law. But greater fealty to the ICJ is unlikely to improve it.


More Details on Network Solutions and the Dutch Anti-Islam Movie:

ComputerWorld reports:

Web hosting company Network Solutions LLC has suspended a Web site that a conservative Dutch politician wanted to use to release an anti-Quran video that critics are saying is extremely critical of Islam....

In a statement sent via e-mail, Network Solutions said that it was investigating a number of complaints that the Web site may have violated its guidelines on hate language. Network Solutions' acceptable use policy say that the company bans content "that is obscene, defamatory, libelous, unlawful, harassing, abusive, threatening, harmful, vulgar, constitutes an illegal threat, violates export control laws, hate propaganda, fraudulent material or fraudulent activity, invasive of privacy or publicity rights, profane, indecent or otherwise objectionable material of any kind or nature."

According to published reports, Wilders has said the 15-minute film describes Islam as "the enemy of freedom." ... Network Solutions said it has also asked Wilders if the company could review the film before it was loaded onto the site to determine if it violates its acceptable use policy. However, the company said Wilders has not responded to its requests, so, in the interim, it has suspended the Web site....

Note, by the way, that the Network Solutions Acceptable Use Policy begins by saying that it

delineates the relatively narrow range of uses of Network Solutions services that are contrary to Network Solutions' mission, generally because such uses either pose an unacceptable risk to the stability, integrity, or quality of Network Solutions' systems or the systems of its vendors, or harm (or threaten to harm) the rights and interests of third parties

but then goes on to ban, among other things, anything that is "vulgar, ... hate propaganda, ... profane, indecent or otherwise objectionable material of any kind or nature." I realize "relatively narrow" is a pretty vague term, but this doesn't seem "relatively narrow" to me; and it bespeaks a very broad view of what constitutes "an unacceptable risk to ... the rights and interests of third parties." (Of course, if Network Solutions is worried about violent retaliation against itself, that would indeed involve a high risk to their rights and interests; but I'm speaking here of the terms of the policy, and not the particular way it's being applied here.)


None of the Usage Dictionaries Support the Theory That "None" Is Only Singular:

A correspondent writes, apropos an earlier post,

"None" is singular[, as in "]If none of these choices IS accurate.["]

I hear elementary grammatical errors on National Public Radio, and realize it is not the standard setter it thinks it is.... I seldom tune into the conspiracy any more because you seem to have drifted from public issues to personal issues .... Still, I expected these opinions to be expressed correctly. Very disappointing ....

Well, returning to public issues, I should stress that all members of the public have a First Amendment right to be as disappointed as they please. But shifting from sentiment to substance, it seems to me that my correspondent's only legitimate objection is indeed only a "personal issue[]" — the correspondent's esthetic preference. When it comes to claims of objective "error[]" or "correct[ness]," the authorities that strike me as reputable, namely leading dictionaries of usage, take the view that "none" can be either plural or singular.

My favorite, the Merriam Webster Dictionary of English, for instance, reports that, "Clearly, 'none' has been both singular and plural since Old English and still is. The notion that it is singular only is a myth of unknown origin that appears to have arisen late in the 19th century." It buttresses its assertions with quotes from many sources, including the King James Version of the Bible, W.H. Auden, and G.K. Chesterton. Fowler's A Dictionary of Modern English Usage, Garner's A Dictionary of Modern American Usage, and the Harper Dictionary of Contemporary Usage take the same view.

So even if one takes the view that correct usage is decided by The Authorities rather than by common usage, here the prominent authorities seem to take the view that "none" can be either singular or plural. Before accepting assertions that the plural "none" is "error" or "[in]correct[]," we should ask exactly what authorities outweigh the dictionaries, Auden, and Chesterton. Likewise, before we accept the view that correct usage is decided by Abstract Logic rather than by common usage or authorities, we should ask why the none-as-singular-only view is indeed a logical imperative, as opposed to being an arbitrary assertion.


The Items We Carry: Here's a cool flickr photo stream of the stuff people carry in their pockets. The slideshow version is here. Hat tip: First Movers.

"The Explanations Simply Do Not Explain":

My colleague Stephen Bainbridge asks, about Pepperdine constitutional law professor Doug Kmiec, "Seriously, how do you flip from Romney to Obama?" Bainbridge can't see a good answer to that. More:

When he was still on board the Romney campaign, Kmiec wrote that:

Mitt Romney is pledged to name to the Supreme Court individuals with the intellectual qualities and philosophy of judicial restraint of Justice Scalia, Alito, and Roberts.

In Barack Obama’s brief stint in the Senate, he had the opportunity to vote on both Roberts and Alito’s nominations. He voted no on both. How do you go from supporting a candidate pledged to appoint judges like Roberts and Alito to backing one who voted against them?

Finally, in the same NRO column, Kmiec explained why he favored Romney over Giuliani by noting that “we cannot afford a president who is only faking his attachment to conservative legal principle.” But Obama has no such attachment, real or faked!


Law Student Use of Adderall and/or Ritalin: Here's a poll for current or very recent law students: In your experience, how common is use of the prescription drugs Adderall and/or Ritalin among law students who do not have a prescription to try to boost performance either for studying or for exams? Please pick the answer that you think best describes use of these drugs at your law school:

How common is use of Adderall and/or Ritalin among law students who do not have a prescription to boost law school performance?
It is very rare or never happens.
Some students use them, but it is uncommon.
It is common, but fewer than half have used them.
About half of students have used them.
More than half have used them.
Most law students have used them.
Pretty much everybody does it.
Free polls from

If none of these choices are accurate, please consider leaving a comment in the comment thread describing your perspective.

Anomalies in the purported new US News rankings of law schools.--

There is something strange about the purported new US News rankings of law schools. The two schools with the highest placement rates at graduation (Berkeley 99% and Columbia 98.9%) are also the only two schools on the first page (top 59 schools) with identical placement rates for “employed at graduation” and “employed 9 months after graduation.”

What a coincidence!

I work with enough data that when I see a coincidence like this, I recheck how the data or variables were constructed – and I almost always find that the underlying data are wrong. Is the pdf of the officially unreleased new US News rankings an elaborate hoax? If the pdf is indeed real, then I think that there is a significant possibility that either Berkeley or Columbia – or perhaps both – unwittingly reported false data to US News.

While the odds of being employed at graduation are 99 to 1 at Berkeley (and 90 to 1 at Columbia), the odds at the other top 8 schools are much lower: 58 to 1 at Stanford, 27 to 1 at Harvard and Chicago, 26 to 1 at NYU, 25 to 1 at Yale, and 20 to 1 at Penn.

Usually, there is a big jump in employment between graduation and 9 months after graduation, but there is none in the data reported by Berkeley and Columbia to US News. For example, by 9 months after graduation, the relative odds of employment jump 911% at Yale (from 24.6 to 1 at graduation to 249 to 1 9 months later), 270% at Chicago, 169% at Penn, 152% at NYU, and 93% at Harvard, but only 13% at Stanford, 0% at Berkeley and 0% at Columbia.

Even if Berkeley weren't reporting suspiciously identical placement rates at graduation and 9 months later, I would still find it unlikely that Berkeley would have the highest placement rate at graduation (99%) among American schools because (unlike Columbia) it does not have the special advantage of being in one of the top 2 legal markets. And I also find it hard to believe that 99% of Berkeley graduates are employed 9 months after graduation when its bar passage rate in California is only 85%.

In the future, when a law school reports the same placement rates at graduation and 9 months after graduation, US News should treat such reports as probably erroneous data, leading to requests from the law school for more detailed information.


The "One of the Only" Kerfuffle: Last week I was widely quoted in the press referring to the Heller case involving the constitutionality of the DC Gun ban as:
one of the only cases in our lifetime when the Supreme Court is going to interpret an important provision of our Constitution unencumbered by precedent.
As soon as the quote appeared, I received a couple emails correcting my use of "one of the only." As one correspondent wrote:
You're quoted in the morning's [Washington Post], p. 1, above the fold: "This may be one of the only cases ...." Eeeek! What, pray tell, does "one of the only X" mean?! One hears it all the time, but parse it if you will, and see what you get.
A few minutes later, another wrote:
Let me introduce you to a useful word: few. As in,,,this may be one of the few cases in our lifetime.... In view of your substitution of "only," it bears mention that the oft-abused "unique" means one of a kind. Mitchell Strickler, Yale Law 1961
But then the emails stopped. So I was taken aback when the Sunday Boston Globe ran an entire column, entitled "Almost Unique," analyzing the correctness of my usage:
AS THE DISTRICT of Columbia's gun ban squared off against the Second Amendment last week, Georgetown University constitutional scholar Randy Barnett was widely quoted on the momentousness of the event: "This may be one of the only cases in our lifetime when the Supreme Court is going to be interpreting . . . an important provision of the Constitution unencumbered by precedent."

Objection! e-mailed reader Sue Bass of Belmont. "One of the only cases" doesn't make sense, she protested; it should logically be "one of the few."
After listing several authorities in support of the criticism, the column then turns to an interesting defense of the usage:
But one of the only has its defenders. James Kilpatrick, in "Fine Print," points out that it is no less logical than one of the best or one of the most talented. "The best advice I can offer is to shake your head and get on with what you are writing," he concludes.

Earlier usage gurus are silent on the topic, though there's some indirect evidence of their attitude. For instance, the critic Edmund Wilson, reviewing a1940s potboiler, observed that "one of the only attempts at a literary heightening of effect is the substitution for the simple 'said' of other, more pretentious verbs" like "shrilled" and "barked."

Usage maven Sir Ernest Gowers liked this quote enough - despite its use of "one of the only" - that he included it in his 1965 edition of Fowler's "Modern English Usage," as a comment on "said."

How long has this been going on? A Google Books search dates one of the only to the 1770s, when a traveler reported that "business, and making money, is one of the only employments" of Rotterdam. But only was already losing its singularity. The 1989 Oxford English Dictionary gave the sense "one (or, by extension, two or more), of which there exist no more . . . of the kind," and quoted Sir Philip Sidney, in the 16th century, using "the only two."

This expansive sense of "only" is not just an Anglo-Saxon aberration. In "Swann's Way," Proust's narrator says that a certain day was "one of the only" ("un des seuls") on which he was not unhappy. In German, according to University of Wisconsin professor Joseph Salmons, one of the only (eine der einzigen, etc.) is entirely OK.

Multilinguist Steve Dodson, at the blog Language Hat, said one of the only is common in Russian and in Spanish (un de los únicos). Geoffrey Nunberg, a linguist at UC Berkeley, sent some examples in Italian (along with a caution from an Italian linguist who calls the usage illogical).

And as Bill Walsh argues at Blogslot, his editing blog, one of the only makes its own kind of sense. "Webster's New World defines only as 'alone of its or their kind,' and nobody objects to 'only two people.' . . . If 'only two people' have done something, wouldn't one of those people be one of only two people, or one of the only people, who have done it?"

Once we had the only two, in other words, we were on the slippery slope to one of the only. And in everyday, unedited English, we prefer it to one of the few by a Google hit ratio of 3 to 1. Nobody has to use it, but everyone speaking English can expect to hear it. After two and a half centuries, we should be getting used to it.
I must say that this kerfuffle brought to mind the exchange between Will Farrell and Dustin Hoffman in Stranger Than Fiction. When Farrell's character, IRS Agent Harold Crick, tells Hoffman's character, literature professor Jules Hilbert, that the voice he hears apparently narrating his life said disturbingly: "Little did he know that this seemingly innocuous act would result in his death," Hilbert suddenly becomes interested and responds: "Little did he know? I've written papers on "Little did he know." I've taught classes on "Little did he know."

Little did I know that "one of the only" would turn out to be so noteworthy. Who da Who'd a thunk it?

Update: I now notice that the BBC changed the quote for its audience to "our Constitution" from my reference to "the Constitution." Makes sense, but is still an interesting liberty taken with a direct quote.


Punitive Damages and American Exceptionalism:

The United States has a rather unique approach to punitive damages -- one that courts in other countries find alien, if not unconscionable. As the New York Times reports, foreign systems tend to disfavor punitives, and foreign courts can be reluctant to enforce American court judgments that include large punitive awards.

Most of the rest of the world views the idea of punitive damages with alarm. As the Italian court explained, private lawsuits brought by injured people should have only one goal — compensation for a loss. Allowing separate awards meant to punish the defendant, foreign courts say, is a terrible idea.

Punishments, they say, should be meted out only by the criminal justice system, with its elaborate due process protections and disinterested prosecutors. It is not fair, they add, to give plaintiffs a windfall beyond what they have lost. And the ad hoc opinions of a jury, they say, are a poor substitute for the considered judgments of government safety regulators.

Some common-law countries do allow punitive damages, though in limited circumstances and modest amounts. In the United States, by contrast, enormous punitive awards are relatively common, although they are often reduced or eliminated on appeal. Last month, for instance, the United States Supreme Court heard arguments in the Exxon Valdez case, where a jury’s initial award of $5 billion was later reduced to $2.5 billion.

Still, such awards terrify foreign courts.

“The U.S. practice of permitting a lay jury to exercise largely discretionary judgment with limited constraints in awarding punitive damages is regarded almost universally outside the U.S. with a high degree of disfavor,” said Gary Born, an American lawyer who works in London.

That the U.S. approach is "exceptional," of course, does not mean it is wrong. While the U.S. legal system has its problems, taken as a whole I find it preferable to existing alternatives (though that may well reflect a bias for the familiar).


McCain vs. the Individual?

Reason editor Matt Welch takes to the NYT op-ed page to make the libertarian case against John McCain. According to Welch, the common theme to McCain's political outlook is a hostility to individualism, making him a most un-libertarian presidential candidate.

The presumptive presidential nominee of the Republican Party has seduced the press and the public with frank confessions of his failings, from his hard-living flyboy days to his adulterous first marriage to the Keating Five scandal. But in both legislation and rhetoric, Mr. McCain has consistently sought to restrict the very freedoms he once exercised, in the common national enterprise of “serving a cause greater than self-interest.”

Such sentiment can sound stirring coming from a lone citizen freely choosing public service. But from a potential president, Mr. McCain’s exaltation of sacrifice over the private pursuit of happiness — “I did it out of patriotism, not for profit,” he snarled to Mitt Romney during the final Republican presidential debate — reflects a worryingly militaristic view of citizenship. . . .

Like many country-first, party-second military officers who began second careers in Washington, Mr. McCain is often mischaracterized as a politician without any identifiable ideology. But all of his actions can be seen as an attempt to use the federal government to restore your faith in ... the federal government. Once we all put our shoulder on the same wheel, there’s nothing this country can’t do.

It can be a bracing approach when his issues line up with yours — I, for one, would welcome President McCain’s unilateral wars on pork-barrel spending and waterboarding — but it’s treacherous territory for those of us who consider “the pursuit of happiness” as something best defined by individuals, not crusading presidents-to-be.

Welch previously made the libertarian case against McCain here. He is also the author of a book on the Arizona Senator, McCain: The Myth of a Maverick.


Quick Take on Medellin: I have a short post on Medellin v. Texas over at the Slate Convictions blog.

  An additional thought on the case: I predict at least a handful of student case comment titles in 2009 that will try to make use of the similarities between the defedant's name and the word "meddling." (For example, "Meddling With the Treaty Power in Medellin," etc.)

Tuesday, March 25, 2008

Reflections on Medellin:

I haven't yet had a chance to closely study the Supreme Court's opinion in Medellin v. Texas. But so far I like what I see. The Court correctly held that treaties are not "self-executing" (enforceable in US courts without additional congressional action beyond the ratification of the treaty itself) unless the text of the treaty clearly indicates that. It also correctly rejected the Bush Administration's claim that the President could order the state of Texas to comply with the International Court of Justice's decision that it was required to set aside Medellin's death penalty conviction because it had failed to give him an opportunity to meet with representatives of the Mexican consulate.

The case involved a claim by Medellin (a Mexican national sentenced to death for committing a murder in Texas) that he wasn't informed of his right to notify a representative of his country's consulate under the Vienna Convention. The International Court of Justice ruled that the Texas as in violation of the convention, and the U.S. is required to "comply with the decision of the International Court of Justice in any case to which it is a party" under Article 94(1) of the United Nations Charter. In Medellin, the Supreme Court held that the UN Charter was not a "self-enforcing" treaty and therefore that federal courts couldn't order Texas to obey Article 94 in the absence of congressional legislation requiring such compliance.

I. Limiting the Use of International Law to Override Domestic Law.

As John McGinnis and I explain in this article, most multilateral treaties and other international law materials are produced by highly undemocratic processes in which authoritarian states and unaccountable political elites from democratic states play a dominant role. On average, the legal rules they establish are likely to be inferior to those created by the domestic lawmaking processes of democratic states. Therefore, it is essential that international law not be allowed to override our domestic law unless it has first been "screened" by the same democratic legislative process that the latter goes through. Otherwise, courts will end up enforcing international legal rules that are likely to be systematically inferior to the domestic rules they displace.

The Supreme Court's decision in effect requires that treaties can't be used to override American domestic law unless the treaties have first been clearly endorsed by our domestic democratic processes in a way that evidences an intention to have them be "self-enforcing." Otherwise, courts might end up enforcing treaties that the president and Senate ratified only because they expected them to be unenforceable exercises in public relations - "cheap talk," as political scientists call it. Obviously, "cheap talk" treaties are unlikely to get as much scrutiny from the democratic process as ones that are expected to be enforceable. Moreover, there is no true democratic validation of the treaty at all if courts interpret it to be binding in ways that the legislature and executive didn't expect at the time of ratification. As the Court shows, the Article 94 of the UN Charter was not expected to be self-enforcing by Congress and the president at the time it was ratified; nor is it treated as such by most other nations.

II. Another Defeat for the Bush Administration's Claims of Unlimited Executive Power.

The Court was even more clearly correct in rejecting the Bush Administration's argument that the president could order Texas to comply with the ICJ judgment even if Article 94 isn't self-enforcing. If the treaty isn't self-enforcing and Texas has no legal obligation to comply with it, the Constitution surely doesn't give the president the power to order Texas to comply merely because he thinks that it advances U.S. foreign policy interests. Apparently, all nine justices (including the three liberal dissenters on the self-enforcement issue) rejected the administration's position on this question. Both Bush appointees (Alito and Chief Justice Roberts) rejected the administration's claims even though they were surely chosen by Bush in part because of their presumed sympathy for broad interpretations of executive power.

This part of Medellin represents yet another nail in the coffin of the Bush Administration's claims that the executive has virtually unlimited power over foreign affairs. As I explained in this post, those claims are dubious even in the context of war and emergencies, where the executive's comparative advantages of secrecy and swift decision-making are of greatest importance. They have even less justification on other issues. Ironically, the Bush Administration's sweeping claims have led to a whole series of Supreme Court decisions rebuking the executive for overreaching and constraining its discretion more than it would have been had the administration taken a more moderate position in the first place. In this case, even John Yoo signed a law professors' amicus brief arguing that president's had exceeded his constitutional authority. If John - the developer of some of the Administration's broadest claims of executive power - thinks that the executive has overreached its constitutional authority on a foreign policy issue, that's a pretty good sign that it has.

Finally, for what it's worth, I think as a matter of policy that Texas and other states should indeed allow foreign nationals arrested on criminal charges to notify representatives of their consulate. Doing so promotes fairness to foreign criminal defendants and may make it easier for them to get adequate legal representation. It could be particularly valuable if the foreign nationals in question are unfamiliar with the US legal system, don't speak English, or both. Certainly, most Americans would want to be able to contact the US consulate if arrested while traveling abroad. But not every good policy is or should be imposed by federal law. The right approach here is for the states to reform their own laws. If necessary, foreign nations could pressure Texas to change its practices by denying Texans arrested in their jurisdiction the right to contact American consular representatives.


More from the Obamas' tax returns.--

Besides my earlier post on speaking fees in Barack and Michelle Obama’s tax returns, I noticed one other interesting thing.

Michelle Obama’s income from the Univ. of Chicago Hospitals jumped from $115,889 in 2003 and $121,910 in 2004 to $316,962 in 2005 (the year Barack entered the US Senate).

MIchelle Obama's Wikipedia entry states:

In 2002, she began working for the University of Chicago Hospitals, first as executive director for community affairs and, beginning May, 2005, as Vice President for Community and External Affairs.

A May 9, 2005 press release from the Univ. of Chicago announced the appointment, reviewed her resume, and mentioned her ties to the new senator:

Michelle Obama has been appointed vice president for community and external affairs at the University of Chicago Hospitals. Obama, who was previously the executive director for community affairs at the Hospitals, will be responsible for all programs and initiatives that involve the relationship between the Hospitals and the community. She will also take over management of the Hospitals' business diversity program. . . .

Obama's husband is a senior lecturer at the University of Chicago Law School. After seven years as a member of the Illinois State Senate, he was elected this past November to the U.S. Senate and was sworn into office January 4, 2005. He serves on the Environment and Public Works Committee, the Veterans' Affairs Committee and the Foreign Relations Committee.

They live in the Hyde Park neighborhood of Chicago and are the proud parents of two girls. The Obamas are members of Trinity United Church of Christ on the South Side.

There was no “Vice President for Community and External Affairs” listed in the 2004 UC Hospitals Annual Report, so the position that Michelle Obama was given may have been created specifically for her. According to the press release, it would appear that in 2005 she was put in charge of at least one new program — the Business Diversity Initiative — besides the one she was running in 2004.

The Business Diversity Initiative is described in a 2006 report:

In 2002, the University of Chicago Medical Center established the Business Diversity Initiative, a program designed to seek out a larger number of minority- and women-owned businesses to deliver products and services to the Medical Center. In fiscal year 2006, the University of Chicago Medical Center spent more than $19 million with minority- and women-owned businesses for an array of goods and services, which ranges from architecture, engineering and construction services to medical/surgical supplies and information technology (IT) consulting.

UPDATE: John Enright writes in the comments below that "The big raise was a bit of a controversy in Chicago when it happened." He quotes from this Nov. 2006 Chicago Tribune story:

Officials at the University of Chicago Hospitals on Tuesday explained a large salary jump for Sen. Barack Obama's wife shortly after he took office as a normal promotion that reflected expanded duties in her job as a liaison with the South Side community surrounding the medical center.


Did Barack Obama Violate the Illinois Governmental Ethics Act?--

Paul Caron has Barack and Michelle Obama’s tax returns on his website (tip to Instapundit). The first thing that jumped out is that in some years Barack received no speaking fees or honoraria. Apparently, as an Illinois state legislator through 2004, Barack was prohibited from taking honoraria for speaking under the Illinois Governmental Ethics Act.

But what about Barack Obama’s 2000 and 2002 tax returns?

2000: On his 2000 Schedule C-EZ, Barack reported that he received $16,500 as a “Foundation director/Educational speaker.”

2001: On his 2001 Schedule C-EZ, Barack reported $98,158 from a Chicago law firm, Miner, Barnhill, for “Legal services/attorney” (and nothing for speaking).

2002: On his 2002 Schedule C, Barack reported $34,491 for “LEGAL SERVCES / SPEAKING FEES.”

These “speaking fees” are in addition to the amounts that Barack was paid as an employee, a lecturer at the University of Chicago, reported on the first page of his 1040s.

The Illinois Governmental Ethics Act (apparently last changed in 1995) provides:

(5 ILCS 420/2-110)

Sec. 2-110. Honoraria.

(a) No member of the General Assembly shall accept any honorarium.

(b) As used in this Section:

"Honorarium" means a payment of money to a member of the General Assembly for an appearance or speech, excluding any actual and necessary travel expenses incurred by the member of the General Assembly (and one relative) to the extent that those expenses are paid by any other person. "Honorarium" does not include (i) cash payments made on behalf of a member of the General Assembly to an organization described under Section 501(c)(3) of the Internal Revenue Code of 1986, (ii) an agent's fee or commission, or (iii) funds reported under Article 9 of the Election Code [i.e., campaign contributions].

"Travel expense" means the reasonable cost of transportation and the reasonable cost of lodging and meals incurred while a person is away from his or her residence or principal place of employment.

(c) Any honorarium or honoraria accepted in violation of this Section shall be surrendered to the State Treasurer and deposited into the General Revenue Fund. (Source: P.A. 89 405, eff. 11-8-1995.)

Did Barack Obama violate this over-restrictive Illinois ethics act? Without knowing the precise situations and sources of these “SPEAKING FEES” in 2002 and payments as an “Educational speaker” in 2000, it is impossible to be certain whether any of this compensation meets the statutory definition of “a payment of money to a member of the General Assembly for an appearance or speech.”

Also, I wonder whether Obama has rectified this problem in some way that I have not heard about. If not, I wonder whether Barack or his campaign has some explanation for accepting “SPEAKING FEES” or whether at this late date he should “surrender” several thousand dollars to the Illinois State Treasurer.

(Of course, my quick analysis assumes that Obama received no speaking fees besides those reported on his 2000 and 2002 tax returns — and thus has paid all the federal taxes he owed.)

UPDATE: More on the Obama Tax Returns:

Byron York

Michelle Malkin



In the comments below, ReaderY notes just how silly such ethics statutes are:

On the speaking fees issue only, Winston Churchill didn't inherit the family wealth and for many years had to speak and write for his living, despite being a Member of Parliament. At the time this was not considered a dishonorable way to live. Are we now living in an age where Winston Churchill's way of life would be considered unethical?

And in part we have John McCain to thank for our current over-restrictive federal regime governing campaign ethics.

Related Posts (on one page):

  1. Plagiarism at MyDD.--
  2. Did Barack Obama Violate the Illinois Governmental Ethics Act?--

Market Knows Best:

Yet another in a series of posts quoting sellers who think that their home has a higher objective value than what they can get from potential purchasers:

Greg and Barbara Abbott have already cut the price twice on the two-bedroom condominium they are trying to sell on the Las Vegas strip. They're asking $669,900 now -- and an offer in the $650,000 range means they'll lose money.

Abbott thinks hesitant buyers don't realize how reasonable the current price is. "They're not really being realistic about what the place is worth," he said.

Oddly enough, the objectively reasonable price is always above what the buyers paid for it, after commissions. The Abbotts paid $583,425 for their house last April. The market in Las Vegas has tanked since then, with prices down 20% from January 2007 to January 2008, according to the Case-Schiller index. I don't think it's the buyers who aren't being realistic. More generally, as famously explained via the solution to the "diamond water paradox," the value an item has in the marketplace is solely what the highest bidder is willing to pay, based on subjective valuation.


Best T-Shirt Ever?:

While going through some of my clothes, I happened upon a t-shirt I bought almost eighteen years ago, which I nominate as the best t-shirt ever. Not because it's comfortable or well-made, or even lawful (the designs are "bootlegged").

The back story is that I was living and working in Manhattan (at Fried, Frank, fwiw) in the Summer of 1990. T-shirt vendors, mostly African immigrants, sold their wares on the street almost everywhere in these pre-Giuliani days. The two hot t-shirt designs were bootleg "black Bart Simpsons", and designs honoring Nelson Mandela, who visited New York that Summer. One brilliant captialist, looking for a niche in a market already swamped with hundreds of vendors selling Simpson shirts, and hundreds more selling Mandela shirts, had an idea. Click to see it, a tribute to the entrepreneurial spirit.


Uncombable Hair Syndrome:

A perfect excuse for those bad hair days, or, for some of us, bad hair lives. "The hair ... is disorderly, it stands out from the scalp, and cannot be combed flat." Unsurprisingly, "Treatment in children is usually not necessary and unsuccessful."

Special bonus: It seems to be related to "Bork syndrome." Thanks to GeekPress for the pointer.


Russia After Putin:

Cathy Young has an interesting summary of the state of Russian politics in the wake of President Vladimir Putin's replacement by his handpicked successor Dmitry Medvedev. Although Putin's authoritarian policies have rolled back much of the liberalization that occurred in the 1990s, Russia is still a much freer society than it was under communism. Indeed, as Young shows, it has become a fairly typical Third World pseudo-democracy with partly fraudulent elections, a corrupt government dominated by cronyism, and significant, but far from totalitarian, repression of political dissent. As in many other Third World countries, the government tries to divert the people's attentions away from its own shortcomings by spouting nationalist rhetoric and blaming all problems on Western interference. At the moment, the Russian ruling elite is actually enjoying some genuine popularity - largely as a result of economic growth driven by high oil prices, as well as successful efforts to harness Russian nationalism into support for the regime.

Obviously, the big difference between Russia and the many other similar societies is that Russia just happens to have huge quantities of oil and nuclear weapons. The big question for the future is whether or not continued economic growth will lead to pressure for liberalization, or whether the Russian political elite will succeed in maintaining a semi-authoritarian system in the long run. Another key question is what will happen when oil prices fall and Russia's economy suffers a downturn. It's possible that the resulting anger at the government will redound to the benefit of supporters of liberal democracy. But I fear that it will instead lead to increased support for the Communists or for ultra-nationalists and anti-Semites, such as Vladimir Zhirinovsky. In Russia, as elsewhere, most of the public is rationally ignorant about politics, and has little incentive to evaluate what they do know in a logical way. As a result, Russia's next economic crisis could result in a much worse government taking power, not a better one.

As Young points out, Russian extremists of both the right and the left can tap into a long tradition of nationalism and belief in the notion that all problems can be solved by a leader with a "strong hand." On the other hand, Russia also has a long counter-tradition of pro-Western liberalization. Former world chess champion and political opposition leader Gary Kasparov represents that tendency today. When the current government eventually runs into trouble, much will depend on whether the ultra-nationalists or the liberal democrats are better positioned to take advantage of the situation. Unfortunately, Putin and Medvedev have targeted democrats for repression far more than the communists and nationalists. However, that very fact might give them greater credibility with the public when and if the current regime becomes unpopular.


A Texas-Sized Win for Texas in Medellin:

The Supreme Court handed down its decision in Medellin v. Texas today. Chief Justice Roberts wrote the majority opinion, which held that neither a judgment of the International court of Justice nor the President's executive order directing state courts to follow the ICJ's judgment constituted federal law that pre-empts a state's pre-existing bar on the litigation of subsequent habeas petitions. Justice Stevens concurred in the judgment, while Justice Breyer wrote a dissent on behalf of himself and Justices Souter and Ginsburg.

This appears to be quite a significant win for Texas (and states) that wil lhave significant ramifications for both separation of powers and the application of international law in U.S. courts. While I have yet to read the opinion, I think it is significant that C.J. Roberts wrote an opinion for a unified majority. There's no hair-splitting Kennedy concurrence here, nor is there an opinion from either Justice Thomas or Scalia complaining that the Chief made too many concessions.

Here's an early AP report on the decision. SCOTUSBlog has some instant reactions here and here. Opinio Juris is also hosting an insta-symposium on the decision that should fill up in the next few days. Time permitting, I'll have more once I've digested the case as well.


Quoting Others' Allegations as Libel:

I'm finishing up the third edition of my First Amendment and Related Statutes textbook, and for it I wrote up a brief summary of the libel law rule when a speaker (e.g., a newspaper, a blogger, a book author, and the like) accurately reports someone else’s statement, which turns out to be false and defamatory. Since people had asked me about this in the past, I thought I'd blog my summary here.

Assume that blogger Alan writes, "Betty alleges Charlie committed armed robbery." Alan’s statement is literally true: Betty did make the allegation. But the statement Alan is reporting on (Betty’s statement) is false, and Alan has the mental state that would make him culpable if he were the original accuser (for instance, he entertained serious doubts about the truth of Betty’s allegation, which is enough to make him liable under a recklessness theory, even if Charlie is a public figure).

a. The general "republication rule" is that a speaker is responsible for the factual assertions in others’ statements (assuming the speaker has the constitutionally required mental state), even when he expressly attributes the statements to others. The truth or falsity of Alan’s statement is evaluated as to the allegation that it repeats (Betty’s report), and not only as to the assertion it literally makes (that Betty reported it). Restatement (Second) of Torts § 578.

And this is true even if Alan distances himself from the allegation, for instance by saying that Charlie has denied the statement, or that Betty has reason to lie. The principle is that "Tale bearers are as bad as tale makers."

b. Some recent cases disagree, and evaluate the statement’s truth based on whether the allegation had indeed been made, not based on whether the allegation (which the statement reports) is true. See, e.g., KTRK Television v. Felder, 950 S.W.2d 100 (Tex. App. 1997); In re United Press Int’l, 106 Bankr. 323 (D.D.C. 1989). This, though, is a minority view; the view mentioned in (a) remains dominant.

c. But say that a reporter is covering a trial, in which witnesses are making assertions that the reporter knows are false, or knows are likely false; or say a reporter is reporting on some official government report. The law has long recognized that such speech must in some measure be immune from liability, even when under the general rule (see 6.a above) the reporter’s speech would be actionable. Under the common-law fair report privilege, the reporter and the newspaper are protected against liability for evenhanded and substantially accurate reports of government proceedings. In many states, this is an absolute privilege, applicable even when the reporter knows that the statements within those proceedings are false (or are likely to be false).

In the other states, though, this privilege is merely a "qualified" privilege, which means that it can be lost when the reporter is acting with "actual malice." Such a qualified privilege still offers some protection, for instance when the statements are about a private figure and would thus be actionable if said negligently -- the reporter would then get the benefit of the "actual malice" test under the qualified privilege, rather than just the negligence test that would be applicable without the privilege. But if the reporter knows the statement in the government proceeding is false (or is reckless about the possibility), he and his employer can be held liable. The Supreme Court has never decided whether an absolute fair report privilege is constitutionally mandated.

d. What if the statement is outside a government proceeding? Consider this incident, from Norton v. Glenn, 860 A.2d 48 (Pa. 2004): "[City councilman Glenn] claimed that [council president Norton] and [city mayor] Wolfe were homosexuals and ... strongly impli[ied] that Glenn considered Norton and Wolfe to be ‘queers and child molesters.’ ... Glenn [also] asserted that Nortion had made homosexual advances toward Glenn which escalated to Norton grabbing Glenn’s penis ...." A newspaper published an article accurately describing the charges, and quoting Norton’s unequivocal denial; the newspaper didn’t adopt or concur in Glenn’s statements. Norton and Wolfe sued both the newspaper and Glenn. The jury in the lawsuit against Glenn found that the statements were false.

e. Some courts would hold that the newspaper would nonetheless be protected under a First Amendment "neutral reportage" privilege, because the charges themselves were newsworthy even if they were false. (Why might that be?) "[W]hen a responsible, prominent organization ... makes serious charges against a public figure, the First Amendment protects the accurate and disinterested reporting of those charges," even when the reporter has serious doubts about the accuracy of the charges. Edwards v. National Audubon Soc’y, 556 F.2d 113 (2d Cir. 1977). Some later cases have extended this to certain charges on matters of public concern against private figures, and to statements made not just by responsible, prominent organizations but by any public figure, or even by any nonanonymous source.

f. Other courts, however, have rejected the neutral reportage privilege. In Norton v. Glenn, for instance, the Pennsylvania Supreme Court held that Norton’s and Wolfe’s lawsuit against the paper could go forward, and the paper could be held liable if it published Glenn’s statements knowing of a high probability they were false. The case eventually settled for an undisclosed amount.


The Risks of Rejecting Vaccinations (Continued)

Glenn Reynolds has an uncharacteristically long post with additional perspective on the vaccination "controversy."


Former Students Practicing Criminal Law?: If you're a former student of mine who is currently practicing criminal law — on either side, defense or prosecution — I'd love to hear from you. I'd like to hear about how you got your current job, how long you've been doing it, and what you think of it. Why do I want to know? Well, part of it is just my curiosity: As a crim law prof, I love it when my students go on to practice criminal law and I want to hear all about it. Second, I have a bunch of current students who are interested in criminal law and are eager to hear from recent graduates about their experiences. If you're willing, I'd like to put you in touch with current students who want to follow in your footsteps. Anyway, if you're a former student of mine practicing criminal law, you can contact me at okerr [at] Thanks!

Conference on the Supreme Court and Constitutional Law:

This Friday, I will be speaking at a symposium on the Supreme Court and constitutional law at the Michigan State University Symposium on Science, Reason, and Modern Democracy. The symposium brings together constitutional law scholars to comment on recent developments in the Supreme Court's constitutional law jurisprudence. My paper covers the development of constitutional property rights doctrine. I will argue that, over the last twenty years, the Court has taken property rights more seriously than before, but still gives them much weaker protection than that accorded to other enumerated constitutional rights. I also contend that such second-class treatment for property rights is unjustified, and will attempt to counter standard defenses of the Court's double standard on property rights (such as claims that minimizing judicial protection for property rights is needed in order to defer to legislative expertise, facilitate redistribution to the poor, and protect the environment). Ultimately, I conclude that judicial protection for property rights will continue to be largely ineffective unless it attracts substantial support from liberal judges as well as conservative ones. In the process, I build on my work on cases such as Kelo v. City of New London and Wilkie v. Robbins.

If you are in the area and are interested in constitutional law or the work of the Court, the conference is a must-see. No, not because I will be speaking on property rights, but because there will be lots of big-name speakers addressing developments in other areas of constitutional law, including Yale's Reva Siegel on liberty and equality, Texas Dean Lawrence Sager on religion, Judge Michael McConnell giving a keynote address, and lots of other prominent con law scholars serving as speakers or commentators (see the link for the full list). The conference proceedings will be published in a forthcoming book, possibly by the University of Pennsylvania Press.


Monday, March 24, 2008

Supreme Court Grants Certiorari in Pearson v. Callahan: I am pleased to say that the Supreme Court granted certiorari this morning in Pearson v. Callahan, the Fourth Amendment and qualified immunity case that I have mentioned here when we filed our Petition and Reply brief. In addition to the two Questions Presented, the Court added a third QP:
In addition to the questions presented by the petition, the parties are directed to brief and argue the following question: "Whether the Court’s decision in Saucier v. Katz, 533 U. S. 194 (2001) should be overruled?”
You can read the Petition for Certiorari in the case here, the Brief in Opposition here, and the Reply brief here. You can read Justice Kennedy's opinion for the Court in Saucier v. Katz here.

If this indeed was a lawyers' mistake, it was a doozy:


JPMorgan and Bear were prompted to renegotiate after shareholders began threatening to block the deal and it emerged that several "mistakes" were included in the original, hastily written contract, according to people involved in the talks.

One sentence was "inadvertently included," according to a person briefed on the talks, which requires JPMorgan to guarantee Bear’s trades even if shareholders voted down the deal. That provision could allow Bear’s shareholders to seek a higher bid while still forcing JPMorgan to honor its guarantee, these people said.

When the error was discovered, James Dimon, JPMorgan's chief executive, who was described by one participant as "apoplectic," began calling his lawyers at Wachtell, Lipton, Rosen & Katz to seek a way to have the sentence modified, these people said. Finger pointing over the mistakes in the contracts began as bankers blamed the lawyers and vice versa.

As a relevant aside, I've never understood why new associates with no finance background get sent to do "due diligence" and "document review" for complicated financial transactions. If they saw something was amiss, would they notice? I've been told that they are asked to look for very specific things, and that the bulk of due diligence is done by the finance people. I'd be curious to know what those who have experience with such things think.


Sunday, March 23, 2008

Breaking the Logjam in Environmental Law:

This Friday and Saturday, the New York University School of Law is hosting a symposium, "Breaking the Logjam: Environmental Law for the 21st Century." Co-sponsored with New York Law School and the NYU Environmental Law Journal, the symposium seeks to "diagnose the roots of current failures and present specific changes in US law" to address existing environmental challenges. Speakers were tasked with analyzing specific environmental issues and devising concrete reform proposals based upon four broad principles:

Cross-cutting regulatory approaches that address underlying causes. Since many environmental problems cut across the boundaries established by existing regulatory programs, existing statutes must be restructured to match the true character of environmental problems and their underlying causes.

Openness about trade-offs. New statutes must acknowledge that trade-offs are inevitable and ensure that they are made in public view based on reliable information.

Scaling regulatory authority to the problem. Statutes should empower states and trim the federal government’s role to what it can effectively do. Correspondingly, the federal government should work with other countries and international organizations to address global problems.

Expanding the use of market incentives and information. The new statutes and regulatory programs need to harness the power of markets and information disclosure to increase environmental protection.

Organized by Richard Stewart and Katrina Wyman of NYU, and David Schoenbrod of NYLS, the symposium will feature remarks and presentations by a variety of environmental law specialists, including Richard Lazarus (Georgetown), Jonathan Cannon (Virginia), Andrew Morriss (Illinois), Cary Coglianese (UPenn), Daniel Esty (Yale), J.B. Ruhl (FSU), John Leshy (Hastings), among many others. The full schedule is here.

My own contribution to the symposium is a paper urging dramatic devolution of federal hazardous waste laws. A draft, which is still a work in progress, is available here. I will post more on my specific recommendations later in the week.


Kmiec Endorses Obama: Back when Mitt Romney was still in the Presidential race, Doug Kmiec was Co-Chair of the Romney Campaign's Committee for the Courts and the Constitution. Today, over at the Slate Convictions blog, Kmiec has a post endorsing Barack Obama for President. An excerpt:
No doubt some of my friends will see this as a matter of party or intellectual treachery. I regret that and I respect their disagreement. But they will readily agree that as Republicans, we are first Americans. As Americans, we must voice our concerns for the well-being of our nation without partisanship when decisions that have been made endanger the body politic. Our president has involved our nation in a military engagement without sufficient justification or clear objective. In so doing, he has incurred both tragic loss of life and extraordinary debt jeopardizing the economy and the well-being of the average American citizen. In pursuit of these fatally flawed purposes, the office of the presidency, which it was once my privilege to defend in public office formally, has been distorted beyond its constitutional assignment. Today, I do no more than raise the defense of that important office anew, but as private citizen.