Judge Michael McConnell, one of the nation's leading scholars of church-state and religious freedom law, has just written a characteristically thoughtful opinion on the subject. Much worth reading if you're interested in American religious accommodation law and how it plays out in practice. Thanks to How Appealing for the pointer.

The Wausau Daily Herald has details; YouTube has video, which seems consistent with the Wausau article. The display was an array of crosses aimed at symbolizing the deaths of aborted fetuses.

For confirmation that the vandal (Roderick King) was a Student Senator, see here. The vandal's rationale:

In 1973 it was made a Constitutional right for a woman to have an abortion. It's not your responsibility. Since it's a right, you don't have the right to challenge it.... Do not put this [display] in front of all of us ... it is not your right.

I'd like to hear what actions the university or the student senate will take against Senator King for his vandalism.

Note, incidentally, that it appears that the use of the university's property for the exhibit had indeed been authorized by the university. (Even if the parklike area on university property was a traditional public forum in which speech had to be allowed, or a designated public forum that the university opened up for speech, it's likely that the university could bar installations planted in the ground — but it appears that the university did not impose any such content-neutral limitation.) Thanks to my friend Prof. Rick Garnett (PrawsBlawg, Mirror of Justice) for the pointer.

UPDATE: UWSP's response:

The University of Wisconsin-Stevens Point has received several communications regarding the May 1, 2008, display by the student organization, Pointers for Life, and the disruption of that display by opposing students.

The university values free expression and the open exchange of ideas. Pointers for Life is a recognized student organization that followed university procedure in staging its event.

The student who disrupted the display not only exhibited inappropriate behavior, but demonstrated intolerance that is unacceptable on the UWSP campus.

University procedures are being followed. In accordance with the Family Educational Rights and Privacy Act, which protects our students from disclosure of their educational records, results of those procedures will not be made public.

I can't speak to the FERPA question, but generally I think UWSP's statement is exactly correct. Many thanks to Thomas Muth for the pointer.

A Snyder v. Alternate Energy Inc., a New York City Civil Court decision from last month, allows this in certain circumstances, and canvasses past opinions on the subject. It then analyzes things this way:

[S]o long as Nelson's physical whereabouts remain a secret, reaching him and his company by ordinary means remains every bit as difficult as reaching the defendant in Hollow v. Hollow [an earlier New York state case -EV]. For the plaintiffs here, like the plaintiff in Hollow, the internet may very well offer the best hope they have of ever being able to reach the defendants Nelson and Corporate Energy.

The problem with the internet is that it is hard to be absolutely sure that the message is actually received by the person it is intended to reach. Despite the information plaintiffs' counsel has supplied tying defendant Nelson to e-mail address EnergyAEI@aol.com, there is still the chance, however slight, that the address belongs to someone who for some unknown reason is merely pretending to be Nelson. And even if the address is indeed Nelson's, then at any given time some other person say, a friend, family member or co-worker may be the one using the address and thus end up intercepting the message being sent to Nelson.

Concerns about the uncertainty of an e-mailed summons and complaint making its way across the internet to its intended target is reason to proceed with caution when being asked to authorize e-mail service. But such concerns are not reason enough to summarily reject an application for alternate service simply because the method sought involves e-mail. Strange as it may sound, the validity of a particular form of service is not necessarily dependent on the likelihood of receipt. As the court of Appeals wrote in Dobkin, "Our law has long been comfortable with many situations in which it is evident, as a practical matter, that parties to whom notice was ostensibly addressed would never in fact receive it." Dobkin v. Chapman, 21 NY2d at 502.

The Federal Circuit just held that the Takings Clause generally doesn't apply to takings of foreign property owned by foreign citizens who have no connection to the U.S. In the process, the court of appeals also canvassed the precedents on the broader question, which can also involve the Fourth Amendment, the criminal procedure provisions, and other Bill of Rights clauses.

Much worth reading, and should be pretty readable even to nonlawyers. Thanks to How Appealing for the pointer.

How come there aren't more comments on the Maryland court decision that refuses to recognize a Pakistani (Islamic law) divorce? What, not enough sex? Not enough politics? Not enough prosecutorial misconduct?

here.

Mason v. Dwinnell, decided yesterday, upheld a trial court's decision that awarded joint custody of a child to the biological mother (Dwinnell) and the mother's lesbian ex-partner (Mason). The child had been conceived when Mason and Dwinnell were a couple, and was raised by Mason and Dwinnell together until the two broke up when the child was four; the two had then, by mutual agreement, had joint custody until the child was seven.

The court stressed that "[a]lthough this appeal arises in the context of a same-sex domestic partnership, it involves only the constitutional standards applicable to all custody disputes between legal parents and third parties." And the court reasoned -- applying what looks like the "psychological parent" doctrine that quite a few courts have applied in recent years -- that because Dwinnell voluntarily let Mason help raise the child for several years, and let the child treat Mason as a parent, Dwinnell voluntarily surrendered her constitutional right to exclusive control over the child. The proper standard was thus the "best interests" standard applicable to disputes between parents; and the trial court's decision that joint custody was in the child's best interests was not an abuse of discretion.

I haven't thought much about the psychological parent doctrine, but I'm inclined to think that it is sound. And if it's sound in general -- for instance, when the psychological parent is a stepparent who raised the child from infancy (with the other biological parent out of the picture) -- then it's equally sound for same-sex relationships. Whatever one might say about whether in the abstract it's better for a child to be raised by a woman and a man or by two women, a child who has formed deep emotional bonds with two women deserves the same protection for those bonds as does a child who has formed such bonds with a woman and a man.

The case, decided yesterday, is Aleem v. Aleem. The court reasoned that, while foreign divorces are generally recognized unless they violate the state's public policy, the sex-discriminatory nature of Islamic divorce law does violate Maryland public policy, at least where the parties are Maryland residents.

"If the Pakistani marriage contract is silent, [footnote: The places in the “contract” where a division of property would normally appear were simply left blank in the case at bar.] Pakistani law does not recognize marital property. If a pre-marital or post-marital agreement in Maryland is silent with respect to marital property, those rights are recognized by Maryland law.... In other words, the ‘default’ under Pakistani law is that Wife has no rights to property titled in Husband’s name, while the ‘default’ under Maryland law is that the wife has marital property rights in property titled in the husband’s name. We hold that this conflict is so substantial that applying Pakistani law in the instant matter would be contrary to Maryland public policy."

The talaq divorce of countries applying Islamic law, unless substantially modified, is contrary to the public policy of this state and we decline to give talaq, as it is presented in this case, any comity. The Pakistani statutes providing that property owned by the parties to a marriage, follows title upon the dissolution of the marriage unless there are agreements otherwise, conflicts with the laws of this State where, in the absence of valid agreements otherwise or in the absence of waiver, marital property is subject to fair and equitable division. Thus the Pakistani statutes are wholly in conflict with the public policy of this State as expressed in our statutes and we shall afford no comity to those Pakistani statutes.

Additionally, a procedure that permits a man (and him only unless he agrees otherwise) to evade a divorce action begun in this State by rushing to the embassy of a country recognizing talaq and, without prior notice to the wife, perform "I divorce thee ..." three times [which is what happened in this case -EV] and thus summarily terminate the marriage and deprive his wife of marital property, confers insufficient due process to his wife. Accordingly, for this additional reason the courts of Maryland shall not recognize the talaq divorce performed here.

Earlier, the court also reasoned that "the enforceability of a foreign talaq divorce provision, such as that presented here, in the courts of Maryland, where only the male, i.e., husband, has an independent right to utilize talaq and the wife may utilize it only with the husband’s permission, is contrary to Maryland’s constitutional provisions [barring sex discrimination] and thus is contrary to the 'public policy' of Maryland." Just as Maryland courts refuse to enforce English libel law judgments, because those are arrived at without regard to American free speech principles, so the court refused to enforce the Pakistani divorce.

Note that this does not preclude the enforcement of prenuptial contracts that expressly limit marital property rights — the court expressly speaks of the default Maryland rule applicable "[i]f a pre-marital or post-marital agreement in Maryland is silent with respect to marital property." (There might be some minimum rights that a spouse might have under Maryland law notwithstanding any express prenuptial agreements, but the court clearly contemplates that a good deal of one's marital property rights can indeed be waived through such an agreement.) It also doesn't speak to what happens if the prenuptial contract doesn't give a specific limitation, but rather states, "in the event of a divorce, we agree that the property shall be divided by applying Pakistani law" or "... by applying Islamic law" or "... under a decision of an arbitral tribunal convened through [name of group]." Here the contract was entirely silent, so the court had no occasion to decide the matter.

My view is that the court decision is quite right on these facts, given the absence of any express agreement about marital property division. I'm inclined to say that if the parties had agreed to an uneven property division, or to a property division pursuant to sex-discriminatory rules, that agreement should be enforceable (again, subject to whatever minimum support requirement state law generally imposes, and setting aside child support issues, which are a matter of duty to the child and thus can't be waived by contract with the spouse). The wife was only 18 when she married the husband, but she was an adult, and should thus be held responsible for her contractual decisions, even if they are made under social or family pressure. But of course I'm aware that others may disagree, and may take a more paternalistic view with regard to contractual enforcement; and in any event in this case, there was no express contract to the first instance.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer. Prof. Friedman also links to this Baltimore Sun article, which has more on the case, including commentary from Islamic law scholars.

Slate's Explainer answers, "Either the sheriff or the medical examiner"; but I don't think that's quite right.

A suicide note is a tangible item that was owned by the person who committed suicide; the property rights in it, as with all other property, go to the person's heirs under the will or under intestate succession rules (if the person died without a will). The government may well have considerable rights to hold on to the tangible item for quite a while, because it's evidence in the investigation of the person's death. But that doesn't mean the government now "owns" the note, only that the law allows it to keep temporary custody of the tangible item.

The same is true of the suicide note as a copyrightable work. Any note that's longer than a few words is protected by copyright, even if there's no copyright notice; that work is originally owned by the author, but when the author dies it goes to the author's heirs. The government's temporary custody of the note may physically block others from copying the copyrighted work, but the government doesn't own the copyrighted work.

As the Explainer points out, the government may also have -- depending on state law -- have the duty to place the contents of the note in the public record. I expect that such state laws do not violate federal copyright law, because such placement would be "fair use," despite the general principle that fair use is rarely available as to unpublished works. And fair use may also allow the media and others to further reprint what they see in the public record.

But none of this makes the government the "owner" of the copyright in the suicide note, because the government lacks a quintessential right of an owner: The legal right to exclude others from using the property. If, for instance, the suicide's heir reads the suicide note before the police show up, the heir may then publish the text of the note, and the government can't stop him: They don't actually own the copyright. If a third party publishes the text of the note, perhaps that might infringe the copyright in the note (unless that too would be fair use, which it well might be) -- but it would be the heirs, not the government, who would decide whether to sue over the infringement, because it is the heirs who own the copyright.

Now, as I said, it might well be -- especially if the note is placed in the public record and can then be copied freely from there (presumably on a fair use theory) -- that everyone would then be able to publish the note without copyright liability. But that just means that the note effectively wouldn't be owned by anyone: It would effectively stop being property at all, much like the works of Shakespeare stopped being property. (I say "effectively" because, unlike with Shakespeare's works, the note would still be technically covered by copyright law, but by hypothesis that formal protection would have no effective bite because of the broad fair use rights.)

So, the suicide note as tangible item would remain owned by the heirs, though the government would have temporary custody (as the body of the Explainer item discloses). The suicide note as copyrighted work would either be owned by the heirs -- subject potentially to some considerable rights on the government's part to place the note in the public record -- or would be effectively no-one's property, if the fair use rights are so broad that anyone would be free to copy it. The copyrighted work would never become the government's property in the sense of the government's having the right to stop others from using it.

Finally, this highlights a broader point: One often hears that the options are whether one entity owns the property or another entity owners the property, for instance "Do consumers own their personal information or do merchants?" But there's also often a third option -- no-one owns the property any more, and it's free for everyone to use. That's generally the case, for instance, as to facts (such as information about certain transactions, which the consumer, the merchant, and anyone else who learns about it are all free to disclose). And it may end up being the case for suicide notes that end up in the public record.

An interesting item from Linnell v. Linnell, 2008 WL 1913991 (Conn. Super. Apr. 15):

The children, by the parties' agreement prior to their birth, have been raised in the Muslim faith. The children, or at least Kelsey at this point, attend weekly religious instruction. They observe the Muslim holidays, as well as some of the Muslim rules (i.e., no consumption of pork). The Plaintiff testified that he agreed to raise the children in the Muslim faith, "so long as we were married." The Defendant testified that she "wouldn't compromise on religion." The children's faith should not be premised on the status of the parties' relationship. Further, the record would support that but for the Muslim faith, the children would have no faith at all. Neither party presented evidence that would suggest their original commitment to raise the children as Muslims should no longer be honored and respected.

The order isn't clear on whether the court ordered that the father continue to cooperate in raising the children Muslim. But the discussion in the opinion very strongly points to this, and I take it that divorcing parents don't lightly ignore the judge's sentiments as expressed in the opinion.

Two thoughts about this:

(1) The court says here that the plaintiff agreed to raise the children as Muslims "so long as we were married." Later, though, the court says there was a "commitment to raise the children as Muslims." Is that really accurate? Even if premarital contracts to raise children in a particular religion are enforceable (as I'm inclined to say they would be), it's not clear to me that there was such an agreement.

(2) More importantly, what's this about "Further, the record would support that but for the Muslim faith, the children would have no faith at all"? Can that really be a constitutionally permissible factor? Seems to me that under the First Amendment, the Court may not prefer one religious upbringing over another (at least in the absence of some showing of imminent likely harm to the children), a religious upbringing over an irreligious one, or an irreligious upbringing over a religious one. Whether it's better to be a Muslim or to have no faith at all is not a matter for secular courts, including secular family courts, to decide.

Check out the Ninth Circuit's decision in U.S. v. Chapman for a sharp rebuke of the government, including the affirmance of a district court's dismissing an indictment with prejudice — thus barring retrial — because of government misconduct:

The district court did not abuse its discretion in dismissing the indictment. The government egregiously failed to meet its constitutional obligations under Brady and Giglio. It failed to even make inquiry as to conviction records, plea bargains, and other discoverable materials concerning key witnesses until after trial began. It repeatedly misrepresented to the district court that all such documents had been disclosed prior to trial. The government did not admit to the court that it failed to disclose Brady/Giglio material until after many of the key witnesses had testified and been released. Even then, it failed to turn over some 650 documents until the day the district court declared a mistrial and submitted those documents to the court only after the indictment had been dismissed. This is prosecutorial misconduct in its highest form; conduct in flagrant disregard of the United States Constitution; and conduct which should be deterred by the strongest sanction available. Under these facts, the district court did not abuse its discretion in characterizing these actions as flagrant prosecutorial misconduct justifying dismissal. Nor did it abuse its discretion in determining that a retrial — the only lesser remedy ever proposed by the government — would substantially prejudice the defendants.

And from earlier in the opinion:

We are similarly troubled, both by the AUSA’s actions at trial and by the government’s lack of contrition on appeal. The government attorneys who appeared in the original AUSA’s stead on the critical day of the hearing on the motion to dismiss the indictment told the trial court that they “took this matter extremely seriously” and conceded that the government made a “very serious mistake in terms of [its] discovery obligations.” Before us, however, these same attorneys have attempted to minimize the extent of the prosecutorial misconduct, completely disregarding the AUSA’s repeated misrepresentations to the court and the failure to obtain and prepare many of the critical documents until after the trial was underway. Instead, they claim for the first time on appeal that none of the 650 pages were required disclosures under Brady/Giglio. When the district court first indicated that it was inclined to dismiss the indictment, it noted that it was “concerned [that] any lesser sanction [would be] like endorsing [the AUSA’s conduct].” The government’s tactics on appeal only reinforce our conclusion that it still has failed to grasp the severity of the prosecutorial misconduct involved here, as well as the importance of its constitutionally imposed discovery obligations. Accordingly, although dismissal of the indictment was the most severe sanction available to the district court, it was not an abuse of discretion.

By the way, note that the panel decision was unanimous, and that the panel consisted of two moderate Clinton appointees (Judges Wardlaw and Hawkins) and a quite conservative Reagan appointee (Judge O'Scannlain).

In today's Ninth Circuit decision in U.S. v. Chapman:

The government misrelies upon United States v. Cadet, 727 F.2d 1453 (9th Cir. 1984), and United States v. Gatto, 763 F.2d 1040 (9th Cir. 1985), to argue that ....

A quick NEXIS search through the NEWS;CURNWS and NEWS;ARCNWS files for "misrely," "misrelies," or "misrelied" found zero mainstream publications using the term. (It did come up with one law review article.) Neither the OED nor the dictionaries available through onelook.com gave any definitions for "misrely." Google search likewise yielded very few examples; "misrely" produced only 158 items (not the number Google indicated at first, but the number one sees when one gets to the end of the Google results) — nearly all were either misspellings of "miserly," word lists, or junk. Likewise for "misrelied" (95 items) and "misrelies" (89 items).

But a Westlaw caselaw search found 30 cases, one from 1939 and the rest from 1973 or more recently, using the term or its variants. A search through law review articles found 9 items, though one was a quote of a case. That's not a lot of hits, but it suggests that the word is in some regular use: By way of comparison, eminently normal (again, not very common, but normal) words such as "enigmatically" (147 uses in caselaw), "pessimistically" (32 uses in caselaw), or "defeatist" (100 uses) are within an order of magnitude of this frequency (though I acknowledge that for "misrely" I looked at three grammatical forms of the term and not just one).

So this strikes me as an unusual example — a term that in Nexis-available sources is used exclusively by lawyers, that appears in its various forms on nearly 40 occasions in published legal work, and yet doesn't seem inherently tied to legal concepts. Why would the word have emerged among lawyers but not among others?

The Speculist has more, arguing that there's a lot of there there.

A very nice review from Tiger Jackson and Jeff Newman, in 11 Scribes J. Legal Writing 141 (2007):

Every law student is encouraged to try to make law review, but no one has ever explained how to do it as well as Volokh. His tone and style are so natural that you can hear his voice in your mind. Starting from scratch, he explains what a law review is, why the experience is valuable, what the write-on competition entails, how to boost your chance of success on it, and what the staff of a law review does. He demystifies the details of the write-on, making this section alone well worth the price for first-year law students.

But even a student who has no desire to be on law review will find this book enormously helpful for writing a seminar paper. In addition to reviewing important points of writing style (e.g., passive voice, legalese, redundancy), Volokh briefly explains the often-overlooked elements of logic and rhetoric and how their misuse can diminish an argument. Unlike most other writing guides, Volokh's book spends plenty of time showing the reader how to use evidence and why it must be critically examined rather than blindly accepted. Even though only five pages are especially devoted to seminar papers, much of the advice Volokh dispenses about writing for law review applies just as well to writing for a professor, and Volokh explains why. He encourages students to consider submitting papers to competitions and even to other law reviews, whether or not they are on their own schools' law review.

Despite the subtitle, this book isn't just for law students. Novice and experienced law-review writers will also find sound advice for improving their writing and expanding their markets. Volokh systematically guides the reader through the stages of producing publishable legal writing, from choosing your subject to methodically researching it, writing about it, and submitting the piece for publication. This book is a must-have for every law student. We also recommend it for practitioners interested in writing and publishing scholarly papers.

So the book is a nice present for incoming law students, for students who are starting their second year and plan to participate a law review write-on competition, for students who plan to write a student article (whether for law review or otherwise), or for graduates who are contemplating going into teaching and thus need to write more.

As I mentioned before, the publisher no longer gives me copies than I can sign and sell. But I've finally made up some bookplates — basically labels with a simple design on them — that I'll happily inscribe, sign, and send to anyone who asks. Send no money, but e-mail the address and the preferred inscription (if you have a preference) to volokh at law.ucla.edu.

Charles E. Pierce was prosecuted for violating section 12.05 of the Wisconsin Corrupt Practices Act, which bars spending aimed at "influenc[ing], directly or indirectly, voting at any election or primary," except (1) by a candidate or a candidate's campaign committee, (2) by a party committee, or (3) by people "residing with the county where such expenses are incurred" who are spending the money "for rent of hall or other rooms, for hiring speakers, for printing, for postage, for telegraphing or telephoning, for advertising, for distributing printed matter, for clerical assistance and for hotel and traveling expenses." (There was also an exception for speakers' paying their own traveling expenses.) The Wisconsin Supreme Court struck this down as a violation of the freedom of speech.

The interesting thing is that this happened in 1916, in State v. Pierce, 158 N.W. 696 — and the arguments about this sort of speech restriction were in many ways quite similar to what we hear today. Here are some excerpts, first from Chief Justice Winslow's majority opinion:

Freedom of speech and freedom of the press have always been supposed to be the very corner stones of Anglo-Saxon democratic institutions.... The Constitution of Wisconsin declares (section 3, art. 1): “Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press” [and Section 12.05 violates this provision] ....

Under [the] terms [of section 12.05] a man, or body of men, who are honestly convinced of the necessity of a change of policy in the state government, commit a crime if they spend any money in another county than their own in bringing their views to the notice of the voters of such other county. There is really but one exception to this, and that is that a public speaker may pay his traveling expenses in going to and from his own meetings, but even he may not hire a hall in which to make his speech. If this be not an abridgment of freedom of speech, it would be difficult to imagine what would be.

Under such a law no pioneer in any reform which depends for its success on a change in the law could leave his own county and communicate his sentiments at his own expense to his fellow citizens of other counties without committing a crime. Under such laws no great propaganda for better laws and better political conditions which has not been formally taken up by a political party can ever be carried on, and the reformer whose eye kindles with the dawning light of a better day must be content to confine his personal activities to the inhabitants of his own small bailiwick.

Almost every forward step in political and governmental affairs comes as the result of long agitation and discussion in the press, on the rostrum, and in the open forum of personal contact. This agitation and discussion often goes on for years before the idea is formally indorsed by any party. Yet it will generally be the case that during this period there will be individual candidates in one party or the other, or both, who favor the new thought. Now this law means that in such a situation no man, or group of men, can do a stroke of political work involving expense in any other county than their own, however legitimate and praiseworthy be the means which are used. No political committee will take up the work, for the very good reason that the party organization has not indorsed the doctrine.

There are times also when devoted citizens firmly believe that no organized political party stands for the right or deserves support, and that an independent candidacy is necessary. Can it be that under such circumstances these citizens can be wholly deprived of the right to go to any part of the state at their own expense, collect information on the subject, and endeavor by word of mouth or by the distribution of printed matter to put the issue as they see it before such fellow voters who are not residents of their own county? ...

We are by no means unmindful of the high and admirable purposes which inspired the authors of the Corrupt Practices Act. There is no member of this bench who is not in the fullest sympathy with any legislation which will tend to reduce to an absolute minimum the danger of corruption and coercion during political campaigns, but when such a law goes beyond regulation, and absolutely prohibits that which the Constitution expressly protects, the court can do nothing but say so....

Now here's Justice Siebecker's dissent, joined by Justice Kerwin:

The terms of section 12.05 are not, in my opinion, an invalid restraint or abridgment of these rights [to speak and publish] in the light of an urgent necessity to regulate the mischievous expenditures of money in elections. It is important to observe that the statute does not regulate the expenditures of money by persons in their political activities, or in promulgating their sentiments and convictions on any subject or any policy of government disassociated from and independent of any activity of influencing voters in an election, and also that no person is precluded from participating as a speaker in political campaigning in elections and speaking his sentiments freely, except that when a person so participates as a speaker in an election campaign to influence voters ... [he must] carry on his work at the expense of a party committee, a personal campaign committee, or a local county agency ....

The act also permits the widest freedom to all persons and groups of persons to promote and agitate for any cause by the press, and print through the mails at the place of their residence, and thence throughout the state. This shows that the freedom of speech and press is wholly unaffected by the provisions of this act, and is as unconfined as ever as to all matters other than campaigning for votes in an election, and in such campaigns all persons have the unrestricted liberty to speak throughout the state as they please and employ the mails of their counties, and thence throughout the state to publish their sentiments and expound their doctrines, policies, and reforms concerning any cause. [Note the echo of the modern "media exception." -EV] A very broad and unrestricted field for activity is thus available to every publicist, speaker, reformer, or any body of men honestly concerned with the necessity of bringing their views to the notice of votters of the state....

Reasonable regulations to guard the ballot are necessary to prevent unbridled license in the exercise of these fundamental rights [of speech and press] in order to maintain a government of laws.... [C]orrupt practices acts are enacted to remedy these evils, and the right of free speech and press does not imply that its inviolability is such that it can do no wrong. Indulgence of it is always conditioned on the proposition that its exercise does not subvert the government, and “is limited, but not abridged, by laws passed in the exercise of police power for the protection of the moral health of the community.”

The legislative provisions of section 12.05 are directed at the evils in elections, and seek to correct them by limiting contributions and expenditures of money, and by requiring all persons engaged in political campaigning to carry on their activities through the prescribed agencies of committees and local groups. To accomplish these purposes the Legislature found it necessary and expedient to subject the citizen to these methods of campaigning, which in some measure operate to confine the rights of the freedom of speech and press in elections to the prescribed manner of exercising them.

[The free speech/free press clause of the state constitution], in common with all other provisions, is subordinate to the great leading purpose for which constitutional governments have been established, namely, to form a more perfect government and to promote the general welfare, and, like all fundamental rights, requires regulation to prevent these rights from being abused, which is the law of liberty. This doctrine is forcibly and clearly expressed in the words: “Power to determine such questions so as to bind all must exist somewhere, else society will be at the mercy of the few, who, regarding only their own appetites or passions, may be willing to imperil the peace and security of many, provided only they are permitted to do as they please. Under our system that power is lodged with the legislative branch of the government. It belongs to that department to exert what are known as the police powers of the state and to determine primarily what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety.”

Where the abuse of the purity of elections begins, through whatever means it be accomplished, liberty of speech and press must end, for without such a check this right could be made a most effective instrument of mischief. The Corrupt Practices Act was framed to guard against such mischiefs, and the Legislature found its provisions appropriate and necessary to check existing evils, which threatened to subvert the rights and privileges, of the elective franchise. In the light of the public evils and the pernicious influence on voters in elections which flow from the lavish expenditure of money, there is much justice and sound public policy in the legislative restrictions imposed on persons by the Corrupt Practices Act.

No doubt exertion of the legislative power in this regard has its difficulties and embarrassments in order to preserve and protect the elective franchise from abuse and the rights guaranteed by liberty of speech and press.... [But the law is] within the discretion which obviously animated the legislators in their vigilance to correct existing mischiefs that threaten to subvert the purity of elections, and ... its provisions do not operate to unreasonably restrain or abridge the liberty of speech and press in the light of eradicating the evils that have grown up in the political field from lavish expenditures of money which menace the freedom and purity of the ballot....

From ABC News This Week on Sunday, an exchange about Sen. Hillary Clinton's gas tax suspension plans:

[George Stephanopoulos:] But economists say that's not going to happen. They say this is going to go straight into the profits of the oil companies, they're not going to actually lower their prices. And the top two leaders in the House are against it. Nearly every editorial board and economists in the country has come out against it. Even a supporter of yours, Paul Krugaman of 'The New York Times" calls it pointless and disappointing. Can name one economist, a credible economist who supports this suspension?

[Clinton:] Well, you know, George, I think we've been, for the last seven years, seeing a tremendous amount of government power and elite opinion basically behind policies that haven't worked well for the middle class and hard-working Americans. From the moment I started this campaign, I've said that I am absolutely determined that we are going to reverse the trends that have been going on in our government and in our political system. Because what I have seen is that the rich have gotten richer. A vast majority, I think something like 90% of the wealth gains over the last seven years have gone to the top 10% of wage earners.

[Stephanopoulos:] But can you name an economist who thinks this makes sense?

[Clinton:] Well, I'll tell you what, I'm not going to put my lot in with economists. Because I know if we did it right, if we actually did it right, if we had a president who used all the tools of the presidency, we would design it in such a way that it would be implemented effectively....

Thanks to Wall Street Journal's Best of the Web for the pointer.

California Lawyer cites Cornellian:

Last summer David B. Lat, a former federal prosecutor who writes Above the Law (www.abovethelaw.com), openly made fun of the lyrics to a song that law firm Nixon Peabody commissioned to celebrate its inclusion in Fortune magazine's list of the best companies to work for. Nixon Peabody asked Lat to take the posted song down from his blog, claiming copyright violation. The dispute landed in the New York Times and provided fodder for countless other blogs. "... boy am I glad I don't work at Nixon Peabody," commented someone called Cornellian at the popular Volokh Conspiracy blog (www.volokh.com). "That song makes it seem like a place run by Dilbert's pointy-haired boss."

Thanks to Nick Mikulicich for the pointer.

Patterico criticizes the use of statistics in this L.A. Times article:

[I]n 2004, a search of California's DNA database of [338,000] criminal offenders yielded an apparent breakthrough [in a 1972 rape/murder case]: Badly deteriorated DNA from the assailant's sperm was linked to John Puckett, an obese, wheelchair-bound 70-year-old with a history of rape.

The DNA "match" was based on fewer than half of the genetic markers typically used to connect someone to a crime, and there was no other physical evidence.

Puckett insisted he was innocent, saying that although DNA at the crime scene happened to match his, it belonged to someone else.

At Puckett's trial earlier this year, the prosecutor told the jury that the chance of such a coincidence was 1 in 1.1 million.

Jurors were not told, however, the statistic that leading scientists consider the most significant: the probability that the database search had hit upon an innocent person.

In Puckett's case, it was 1 in 3.... In every cold hit case, the [scientific expert advisory] panels advised, police and prosecutors should multiply the Random Match Probability (1 in 1.1 million in Puckett's case) by the number of profiles in the database (338,000)..

I'm not knowledgeable enough about these things to speak with confidence about just how these things can be explained accurately and comprehensibly to a jury. I may also be mistaken even about the more basic things (I've forgotten far too much about statistics, I'm sorry to report). Still, I'm pretty sure that both "the chance of such a coincidence was 1 in 1.1 million" and "the probability that the database search had hit upon an innocent person ... was 1 in 3" aren't quite right.

To begin with, if I'm right that the "1 in 1.1 million" number means roughly that 1 in 1.1 million people have the particular DNA markers that Puckett had, that's about 6000 people worldwide. To say that the defendant is one of only 6000 people who may have committed a crime (or one of only 3000, if the 1 in 1.1 million figure means 1 in 1.1 million males) doesn't by itself tell you much. It certainly doesn't tell you that there's only a 1 in 1.1 million chance that "although DNA at the crime scene happened to match his, it belonged to someone else."

Now it may well be that, coupled with other evidence, the DNA match information might be quite probative. To take a simple example, imagine that only 1 in 100 men have red hair, and it's discovered that the killer had red hair. That the defendant had red hair is surely relevant evidence, coupled with various other evidence. But it doesn't say that there's only a 1% chance that "although the hair color at the crime scene happened to match [the red-haired defendant's], it belonged to someone else."

On the other hand, "the probability that the database search had hit upon an innocent person ... was 1 in 3" also strikes me as wrong. Most obviously, I don't think it can't be the case that you should just "multiply the Random Match Probability (1 in 1.1 million in Puckett's case) by the number of profiles in the database (338,000). That's the same as dividing 1.1 million by 338,000" to yield the "chance that the search would link an innocent person to the crime." Say that the database had 2.2 million profiles; under that calculation, the chance that the search would link an innocent person to the crime would be 200%, obviously nonsensical.

Now I think that the multiplication might be someone's oversimplification of a different formula — the chance that a database of 338,000 people would yield a match with an innocent person, when there's a 1/1,100,000 chance that any particular innocent person would have the DNA markers. That formula is 1-(1-1/1,100,000)^338,000, which yields 26.5%, rather than 338,000/1,100,000 (30.7%). Nor is it an accident that the two percentages are close; when n is relatively low compared to a, 1-(1-1/a)^n is relatively close to n/a.

But even taking account of this oversimplification, this strikes me as mistaken. 1-(1-1/1,100,000)^380,000 is the probability that, if the rapist is not in the database, a database search would still come up with someone (who would then be innocent, since by hypothesis the rapist is not in the database). It is not "the probability that the database search had hit upon an innocent person."

Here's one way of seeing this: Let's say that the prosecution comes up with a vast amount of other evidence against Pickett — he admitted the crime in a letter to a friend; items left at the murder site are eventually tied to him; and more. He would still, though, have been found through a search of a 338,000-item DNA database, looking for a DNA profile that is possessed by 1/1,100,000 of the population — and under the article's assertion, "the probability that the database search had hit upon an innocent person" would still have been "1 in 3."

Despite all the other evidence that the police would have found, and even if the prosecutors didn't introduce the DNA evidence, there would be, under the article's description, a 1/3 chance that the search had hit upon an innocent person (Pickett), and thus a 1/3 chance that Pickett was innocent, presumably more than enough for an acquittal. That can't, of course, be right. But that just reflects the fact that 1/3 is not "the probability that the database search had hit upon an innocent person." It's the probability that a search would have come up with someone innocent if the rapist wasn't in the database.

So, as I said, I'm not sure what juries should be told about these statistics, and how to weigh them together with the other probative evidence that's introduced at trial. But it seems to me that both of the options given in the quote — "the chance [that although DNA at the crime scene happened to match [defendant's], it belonged to someone else] was 1 in 1.1 million" and "the probability that the database search had hit upon an innocent person ... was 1 in 3" — are incorrect.

The "rape by fraud" issue noted below does raise some interesting conceptual questions, for instance "Why do we make it a crime to take property when consent is gotten through fraud, but not to get sex when consent is gotten through fraud"? But while I think the "why" is interesting and important, the bottom line strikes me as clear: There is likely to be much more injustice and suffering if the criminal law were to police a vast range of lies and concealments in sexual relationships than if the criminal law stayed out of this.

Moreover, I should note that when people get property by lies that yield a marriage, that may well not be criminal or even civilly actionable. Consider, for instance, Askew v. Askew, 22 Cal. App. 4th 942 (1994), where a court rejected a man's claim that his wife had defrauded him by marrying him without ever having loved him or been attracted to him:

Ronald testified there were “numerous discussions” with Bonnette about “passion, desire or physical attraction” before their marriage. Bonnette said (in Ronald's words) “that she loved me. That she had this lust, this passion, this desire. That I could trust her. That I could believe in her.” Later he testified that Bonnette “described the passion as being this-this-this-this-love. This-this sexual desire. This-this strong commitment. This great endorsement for me as a person.” She also said, “I am honest with you. I will always be honest with you. You can trust me. You can believe in me. I will not lie to you.” Many times Ronald asked her to tell him “if there's anything I should know about our marriage, or anything about our relationship, be honest with me. Tell me. Tell me before the marriage.” Bonnette said there was “nothing” Ronald “need[ed] to know.”

Ronald then testified he relied on these statements in transferring the five properties “into [his and] her name [jointly].” But he would not have transferred the properties if he had “known the truth” (referring to the revelations from the 1991 counseling session) that he knew “now” — i.e., that she really had no desire for him “physically” or “sexually,” that she had no “passion” for him prior to the marriage, or “during” the marriage....

Bonnette was called as part of Ronald's case-in-chief. She admitted that she did not have sexual desire for Ronald prior to or during the marriage, even though she “may,” at one point “early on in the relationship,” have told Ronald that the two of them had a “very satisfying” sexual relationship. Ronald also called a friend of the Askews who testified that in about 1989 while at dinner at a local restaurant Bonnette told her that she did not love Ronald when they first got married.

Had this been a normal commercial relationship and the misrepresentations had been about ordinary commercial matters, the conduct likely would have constituted actionable fraud (and perhaps even criminal fraud). But the court read the state statutes abolishing the breach of promise of marriage and similar causes of action broadly:

At this point the policy behind the anti-heart-balm statutes bears some elaboration. Plainly, these statutes not only preclude certain “old fashioned” causes of action, but also embody a basic reluctance on the part of both the Legislature and the judiciary to allow recovery for promises of love. This reluctance stems, no doubt, from the sheer unseemliness of litigating tender matters of romantic or sexual emotion in courts of law. Using the courts to distinguish “between a false statement of one's feelings and a change in those feelings” presents, in Judge Posner's phrase, “exquisitely difficult” problems of proof....

Words of love, passion and sexual desire are simply unsuited to the cumbersome strictures of common law fraud and deceit. The idea that a judge, or jury of 12 solid citizens, can arbitrate whether an individual's romantic declarations at a certain time are true or false, or made with intent to deceive, seems almost ridiculously wooden, particularly where the statements were made prior to marriage and the marriage lasted more than 13 years. “The judiciary should not attempt to regulate all aspects of the human condition. Relationships may take varied forms and beget complications and entanglements which defy reason.” Love has been known to last a lifetime, but it has also been known to be notoriously evanescent. These are matters better left to advice columnists than to judges and juries....

Seems quite right to me — and imagine what would happen if people could sue not just over "I love you" marriage fraud, but also "She told me I was only her second lover" marriage fraud, or similar forms of fraud as to nonmarital sexual relationships. Or (to return to the preceding post) imagine such behavior could be made into a crime, either on the theory that the lie led to a transfer of property in the marriage or the love affair, or that it led to the sex in the first place.

That's what would happen under a proposed statute that's being promoted by Massachusetts state representative Peter Koutoujian, and is being supported by District Attorneys Joseph D. Early Jr. and Gerard Leone.

I suspect that this isn't the goal of the drafters, but that's what the language would call for, when (as I'm pretty sure happens quite often) the cheater has sex afterwards with the regular lover without disclosing the cheating. Here's what the proposed law says:

Whoever has sexual intercourse or unnatural sexual intercourse with a person having obtained that person's consent by the use of fraud, concealment or artifice, and who thereby intentionally deceived such person so that a reasonable person would not have consented but for the deception, shall be punished by imprisonment in the state prison for life or any term of years. As used in this statute, 'fraud' or 'artifice' shall not be construed to mean a promise of future consideration.

The law was apparently proposed in response to some recent fraudulent-sex incidents, one in which a man had sex with his brother's near-sleeping girlfriend pretending to be his brother, and one in which a medical technician conducted an unnecessary pelvic exam (with his fingers, I think) after having pretended to the woman that it was necessary and that he was trained and licensed to perform such exams. But it goes much further than that: Any time someone has consensual sex (1) having gotten the consent through (a) lying or (b) concealment, and (2) a jury (or perhaps a judge) concludes that "a reasonable person would not have consented but for the deception," that's a felony, labeled as a form of rape. Promises ("I'll marry you") are excluded, but other statements — or silences — are not.

So let's see how it plays out in the cheating situation. Alan and Beth are lovers. Beth has sex with Carl. She doesn't tell Alan (or, if Alan confronts her about his suspicions, denies it — that doesn't matter for purposes of the law), but then has sex with Alan again. That, under the law, is rape, so long as the jury or judge concludes that a reasonable person wouldn't have consented to have sex again with his lover had he known that she had cheated on him. Naturally, the same would apply with married couples, but this isn't even just a revival of criminal punishment for adultery — there's no requirement of marriage. (Note of course this would apply regardless of the sex, or sexual orientation, of the partners.)

The same could of course arise in lots of other contexts. A woman conceals from a prospective lover the fact that she'd been a prostitute, or even had had a lot of sexual partners. When they have sex, under the proposed law the man will have been raped as a result — depending, of course, on whether the jury or judge decides that a reasonable person would care about a lover's past prostitution, or even a lover's past promiscuity. (Let's assume that she doesn't have any sexually transmitted disease; there are some narrow laws that mandate revealing STD's to prospective lovers, but those are indeed limited to revealing STD's and preventing the spread of disease. They certainly don't cover all things that a reasonable lover might consider in deciding whether to have sex.)

Likewise if a man (or a woman) gets sex by falsely saying "I love you" (as opposed to "I will always love you" or "I will marry you," which is excluded), again if a jury finds that a reasonable person would have considered this. Same if someone gets sex by lying about his or her wealth or his or her age.

And of course all this would require the case-by-case, jury-by-jury development of the Law of Reasonable Sexual Criteria, as Massachusetts courts have to decide whether a reasonable person would treat a sexual partner's poverty, age, promiscuity, infidelity, and other attributes as sexual deal-killers. (Would it matter, by the way, how appealing the other person otherwise is? Would the jury have to decide whether the "victim" would have had sex with the "rapist" in any event, because the victim was so infatuated, or because the rapist was so hot? "True, Angelina Jolie didn't tell the victim that she was still in a sexual relationship with Billy Bob Thornton, but a reasonable man would have had sex with Angelina Jolie no matter what he knew about her"?)

Just awful. I do think some kinds of sexual frauds could properly be criminalized, for instance if the defendant impersonated some other specific person whom the victim knew, or if the defendant lied about having a serious sexually transmitted disease (or even concealed such a disease), or if the defendant lied about whether certain sexual contact was necessary for medical purposes. But these would be narrow and precisely drafted laws, which would cover a small range of clearly highly reprehensible and unusual conduct, and would not cover behavior that is either proper protection of privacy (e.g., not revealing one's sexual history) or that is an extremely common human failing (e.g., cheating).

UPDATE: Commenter Arkady hints at another hypothetical: Woman fakes orgasms, or more broadly tells the man that he's a great lover. Man says that he wouldn't have continued having sex with her if he'd known that she wasn't having orgasms -- or that he wouldn't have continued having sex with her if he'd known that she was willing to fake something like that, or to lie about his prowess. A prosecutor claims that a reasonable person would indeed have reacted the way this man says he would have reacted. The jury, or the judge deciding on a motion to dismiss, is supported to decide whether a reasonable person (not the average person, mind you, but a reasonable person) would have reacted this way. How on earth is a jury or a judge to make that legal decision?