Saturday, June 14, 2008

Are "White Shoe" Law Firms "Conservative"?:

There is a prevalent myth that large law firms, especially old, "white shoe" firms, are bastions of patrician conservatism. This may have been true forty years ago, but the evidence suggests that the vast majority of big law firms are firmly, institutionally, on the Left, whether judged by the political content of their pro bono work, the voting and contribution patterns of their partners, or their willingness to embrace politically correct agendas, such as racial preferences in hiring. Walter Olson offers a case in point: Clifford, Chance honoring heroes of the radical left. AmLaw Daily reports that "Clifford Chance sponsored the book party on the advice of a consultant who advises the firm on art and diversity," the very existence of which should tell you something.

As an aside, given that several of the honorees were PLO propagandists, back in the days when the PLO didn't even pretend to want a peaceful settlement with Israel, I wonder whether the diversity consultants considered the sentiments of Jewish partners and associates. (The PLO folks may or may not have been treated unfairly, I'm not familiar with the relevant story, but merely fighting a First Amendment battle successfully does not make you a "hero" worthy of having your picture in the lobby of Clifford, Chance. Or should I be sending the firm photos of the Nazis who won the Skokie case, for proud display?)

UPDATE: As a further aside, do you think any major law firm is going to honor the Boy Scouts of America as heroes of the First Amendment for winning what I think is one of the most important First Amendment cases of the last two decades, Boy Scouts of America v. Dale? No? Actually, it's almost unthinkable, despite the BSA's overall "mainstreamity". That, combined with Clifford Chance's honoring "heroes of the radical left" for their First Amendment battles, should give readers an idea of how "conservative" big law firms are.


What to Watch for in DC v. Heller:

That's the topic of an excellent analysis by Prof. Michael O'Shea, of the Oklahoma City University School of Law. Professor O'Shea and I will both be contributing articles to forthcoming symposium on Heller in the Syracuse Law Review.


Friday, June 13, 2008

More on Kozinski:

I don't have a great deal more to add to what Eugene [and Larry Lessig] have already said about this; there's nothing here that impugns Kozinski's status as a judge (or should cause him to recuse himself from an obscenity trial), and I agree that we should let the private story and its private embarrassments die. But there's one interesting angle here, that I haven't heard anyone comment on. This past March, I spoke at a very interesting conference at UC Santa Clara Law School, on law and cyberspace and virtual worlds and the like, and Judge Kozinski was the keynote speaker. I was really looking forward to hearing him; we had never met, though I've always been something of an admirer of his, and think of him as certainly one of the more interesting, and capable, members of the federal judiciary. Plus, I knew enough about him to know that at least we'd be entertained, if not necessarily enlightened, by his talk. Judge Kozinski's talk centered on the increasing difficulty, these days, of finding and navigating the line between what is private and what is public. I don't have his text in front of me [I believe it will be published in the Santa Clara Computer and High Technology Law JOurnal, along with the other symposium stuff], but the examples I recall him focusing on included Google Earth [he described, vividly, Barbra Streisand's discomfort at discovering that her carefully hidden home was basically available for all to peer into through this little piece of software), and he also spent a fair bit of time decrying the habits of those who feel no compunction whatsoever about revealing, while talking on a cell phone at high volume in a public space, pretty intimate details of their lives to total strangers who happening to be, say, sitting in the airplane seat next to them. He also talked at some length about the fuss he made, as Chief Judge of the 9th circuit, when he found out that federal agents were routinely monitoring the Internet traffic into and out of the federal courthouse buildings, and about his role in getting that to stop. In truth, I found the talk a little disappointing -- a little on the whiny side about the cell phones, a little too much on the theme of "things were a lot better in the old days." But that's neither here nor there; the talk does look different in light of recent events. The story here, to the extent there is a story, is precisely "about" the difficulty of navigating between private and public spheres, and in particular about Judge Kozinski's confusion (which, I hasten to add, he shares with millions of people) about what, on this "internet" thing, is private, and what isn't. Had he done what millions of people do -- store photos, some salacious and some not, on their hard drives, or in hard-copy in a locked file cabinet -- then there is, of course, no story here at all. You wouldn't think it would matter that he chose a different storage medium -- a "private" (or is it "public"?) webpage -- for those photos, but in some ways it does matter, and I think Kozinski was, as he seemed to be indicating back in March, quite genuinely confused on the matter -


Sometimes A Picture Really Is Worth A Thousand Words: My co-blogger Jonathan Adler earlier noted the quite puzzling decision by Ohio state court judge James Burge blocking the state's death penalty. After seeing the picture accompanying the USA Today's coverage of the decision, however, I think I understand. (Hat tip: Bench Memos)

Legal Right to Physically Discipline One's Children:

An interesting 4-to-1 decision from the Indiana Supreme Court. Here are the facts:

Sophia Willis is a single mother raising her eleven-year-old son, J.J., who has a history of untruthfulness and taking property belonging to others. The events at issue in this case began at an elementary school Friday, February 3, 2006. On that date J.J.’s fifth grade teacher, Ms. McCuen, saw J.J. giving a bag of women’s clothing to a classmate. Finding this to be an “odd exchange,” Ms. McCuen contacted J.J.’s mother. Willis met with Ms. McCuen and identified the clothing as hers.

Experiencing ongoing disciplinary problems with J.J., Willis sent him to her sister’s home over the next two days to ponder her options. When J.J. returned on Sunday Willis had a long conversation with her son and questioned him about his conduct. J.J. denied taking the clothing and instead concocted a story that shifted blame to other students. Willis warned that if he did not tell the truth he would be punished. J.J. again gave the same story. In response Willis instructed J.J. to remove his pants and place his hands on the upper bunk bed. J.J. complied, and Willis proceeded to strike him five to seven times with either a belt or an extension cord. [Footnote: The evidence on this point is in conflict.] Although trying to swat J.J. on the buttocks, his attempt to avoid the swats resulted in some of them landing on his arm and thigh leaving bruises. J.J. testified that during this exchange his mother was “mad.” Tr. at 9. Willis countered that she was not angry but “disappointed.”

The following Monday J.J. returned from gym class and asked to see the school nurse. Showing the nurse the bruises, J.J. told her that he received a “whooping” from his mother “[b]ecause I had took some clothes and I had lied.” The nurse contacted child protective services that in turn contacted the Indianapolis Police Department.

Willis was tried in a bench trial for felony child battery; the judge convicted her, but exercised his discretion to treat the crime as a misdemeanor, and sentenced Willis to eight days in jail plus 357 days probation.

The Indiana Supreme Court reversed the conviction. The court agreed with lower courts that the "legal authority" defense recognized by an Indiana statute covered reasonable corporal punishment of a minor, and tried to clarify the scope of the defense:

[We adopt the Restatement (Second) of Torts view:] “A parent is privileged to apply such reasonable force or to impose such reasonable confinement upon his [or her] child as he [or she] reasonably believes to be necessary for its proper control, training, or education....
In determining whether force or confinement is reasonable for the control, training, or education of a child, the following factors are to be considered:
(a) whether the actor is a parent;
(b) the age, sex, and physical and mental condition of the child;
(c) the nature of his offense and his apparent motive;
(d) the influence of his example upon other children of the same family or group;
(e) whether the force or confinement is reasonably necessary and appropriate to compel obedience to a proper command;
(f) whether it is disproportionate to the offense, unnecessarily degrading, or likely to cause serious or permanent harm.
We hasten to add that this list is not exhaustive. There may be other factors unique to a particular case that should be taken into consideration. And obviously, not all of the listed factors may be relevant or applicable in every case. But in either event they should be balanced against each other, giving appropriate weight as the circumstances dictate, in determining whether the force is reasonable....

Thus, to sustain a conviction for battery where a claim of parental privilege has been asserted, the State must prove that either: (1) the force the parent used was unreasonable or (2) the parent’s belief that such force was necessary to control her child and prevent misconduct was unreasonable.

The court then went on to apply the factors and conclude that the force used was reasonable, because (1) J.J. was eleven (rather than younger), (2) "most parents would likely consider as serious their eleven-year-old child’s behavior in being untruthful and taking property of others" and "a parent might consider that such behavior could set the stage for more aberrant behavior later in life" (especially where, as here, the child was already "not a first offender"), (3) Willis "used progressive forms of discipline," including "send[ing] J.J. to his room, ground[ing] him, [and] withhold[ing] privileges such as television, games, and time spent outdoors," and swatted him with the belt or electric cord only when these had failed, and (4) the punishment wasn't degrading, likely to be seriously harmful, or disproportionate to the offense.

In any case, an interesting case on a difficult legal question. I'm not sure how helpful the test the court announces will be, but I'm not sure how the court could have done better.



I've tried to avoid blogging about the Judge Kozinski story, because I'm so obviously biased on the subject. I clerked for the Judge. The Judge officiated at my wedding. I talk to him often. I consider him a close friend, he's taught me a huge amount, and he's helped me tremendously in my career, and not just by giving me a valuable credential. What I say on the matter will naturally and properly be discounted because of my bias. Still, I can't help myself any longer, so I'll pass along what I think, and you can give it whatever credit you think is due.

Here's what seems to me to have happened:

A lawyer (Cyrus Sanai) who has long had a grudge against Judge Kozinski finds out that the Kozinski family has a network server with various files on it. The controversial files on that server aren't linked to from the Web, and aren't indexed on search engines. They are generally meant only for family members and a few other people who get specific pointers to them. [UPDATE: Patterico reports that the directory's index was available on Yahoo, though apparently not Google, deep in the results of a search for ""; I presume this was because of some error in's robots.txt file. The lawyer, though, didn't find the files this way, and the files themselves weren't indexed.]

But the lawyer figures out the private server's internal directory structure, rummages around, finds some of the files, and downloads them. And some of the files contain what is basically — if what I saw at Patterico's site is representative — visual sexual humor. There are some spoofs, for instance of the MasterCard commercials, some puns, some absurdities. Kozinski, or someone in his family, apparently got them sent to him, and decided to save them alongside a bunch of other stuff he found interesting or amusing.

Now the fruit of this disgruntled lawyer's rummaging through someone else's personal files somehow becomes a national news story. Why? Because Kozinski is presiding over an obscenity trial? All this stuff — the sort of sexual humor that gets circulated all the time — is not remotely in the same league as what the defendant is being criminally prosecuted for. Recall that the defendant is being prosecuted precisely because his sex-and-defecation movies are so far out even by modern standards of actual pornography. Sanai's discoveries are similar to someone's finding that a judge who's presiding over a drunk driving trial has some screw-top bottles of rosé wine in his cupboard at home, shamelessly displayed in a way that the whole world can see them, if the whole world stands on its tiptoes and peers through a back window. The news value of that would be what, exactly? (Yes, I know screw-tops are becoming legit, but pretend it's ten years ago.)

OK, people are saying, it was careless of Kozinski not to make sure that the site (which was apparently managed by one of Kozinski's grown sons) was properly secured. Sure, in retrospect, whenever something leads to this sort of media circus, by definition one would have been wise to take more care to prevent it. But surely even otherwise reasonable people might fail to plan for their enemies' rummaging around through the files on a private family server.

It's kind of like your parking your car on the street, locking it, but forgetting to close a back window — or like your throwing out something in the trash without shredding it and leaving the trash cans by the curb. Then someone who has a grudge against you comes by and starts using the open window to rummage around in the stuff you have piled up in the back seat, or starts rummaging through your trash. (Note that to my knowledge such rummaging probably isn't even a crime in many places.)

Lo and behold, one of the items your enemy finds is a notebook in which you've pasted some visual sex jokes that people have sent you. He takes pictures of all the pages and then runs to the newspaper; because of your high-profile job, the newspapers all cover this. Should you have closed the back window? Should you have shredded the stuff before putting in the trash? In retrospect, sure. But how many of us live like that in everything we do?

Jeez, folks, Kozinski has a quirky sense of humor, and keeps some joke pictures and videos on his computer rather than throwing them away. I'm sure they aren't the kinds of things some people would enjoy seeing. But he wasn't trying to show them to those people! He was just minding his own business, keeping some files on his own private server. And now it's a national news story.

Enough already. As Larry Lessig puts it, no-one should be put in the position of "hav[ing] to defend publicly private choices and taste" in a situation like this. We should all leave Kozinski to his own privately expressed sense of humor, as we'd like the world to leave us to ours.


Lessig on the Kozinski Kerfuffle Larry Lessig has a blog post on what he calls, The Kozinski Mess, by which he means "the total inability of the media — including we, the media, bloggers — to get the basic facts right, and keep the reality in perspective. The real story here is how easily we let such a baseless smear travel - and our need is for a better developed immunity (in the sense of immunity from a virus) from this sort of garbage."

Here is how he explains the situation:
Here are the facts as I've been able to tell: For at least a month, a disgruntled litigant, angry at Judge Kozinski (and the Ninth Circuit) has been talking to the media to try to smear Kozinski. Kozinski had sent a link to a file (unrelated to the stuff being reported about) that was stored on a file server maintained by Kozinski's son, Yale. From that link (and a mistake in how the server was configured), it was possible to determine the directory structure for the server. From that directory structure, it was possible to see likely interesting places to peer. The disgruntled sort did that, and shopped some of what he found to the news sources that are now spreading it.

Cyberspace is weird and obscure to many people. So let's translate all this a bit: Imagine the Kozinski's have a den in their house. In the den is a bunch of stuff deposited by anyone in the family — pictures, books, videos, whatever. And imagine the den has a window, with a lock. But imagine finally the lock is badly installed, so anyone with 30 seconds of jiggling could open the window, climb into the den, and see what the judge keeps in his house. Now imagine finally some disgruntled litigant jiggers the lock, climbs into the window, and starts going through the family's stuff. He finds some stuff that he knows the local puritans won't like. He takes it, and then starts shopping it around to newspapers and the like: "Hey look," he says, "look at the sort of stuff the judge keeps in his house."

I take it anyone would agree that it would outrageous for someone to publish the stuff this disgruntled sort produced. Obviously, within limits: if there were illegal material (child porn, for example), we'd likely ignore the trespass and focus on the crime. But if it is not illegal material, we'd all, I take it, say that the outrage is the trespass, and the idea that anyone would be burdened to defend whatever someone found in one's house.

Because this is in many ways the essence of privacy. Not the right to commit a crime (though sometimes it has that effect). But the right not to have to defend yourself about stuff you keep private. If the trespasser found a Playboy on the table in the den, the proper response is not to publish an article reporting this fact, and then shift the burden to the home owner to defend the presence of the Playboy (a legal publication, harmless in the eyes of some, scandalous in the eyes of others). The proper response is to give the private party the benefit of privacy: which is, here at least, the right not to have to explain.

This analogy, I submit, fits perfectly the alleged scandal around Kozinski. His son set up a server to make it easy for friends and family to share stuff — family pictures, documents he wanted to share, videos, etc. Nothing alleged to have been on this server violates any law. (There's some ridiculous claim about "bestiality." But the video is not bestiality. It lives today on YouTube — a funny (to some) short of a man defecating in a field, and then being chased by a donkey. If there was malicious intent in this video, it was the donkey's. And in any case, nothing sexual is shown in that video at all.) No one can know who uploaded what, or for whom. The site was not "on the web" in the sense of a site open and inviting anyone to come in. It had a robots.txt file to indicate its contents were not to be indexed. That someone got in is testimony to the fact that security — everywhere — is imperfect. But this was a private file server, like a private room, hacked by a litigant with a vendetta. Decent people — and publications — should say shame on the person violating the privacy here, and not feed the violation by forcing a judge to defend his humor to a nosy world.

When it comes to government invasions of our privacy, we are (and rightly) a privacy obsessed people. We need to extend some of that obsession to the increasingly common violations by private people against other private people. There is nothing for Chief Judge Kozinski to defend because he has violated no law, and we live in a free society (or so he thought when he immigrated from Romania). A free society should feed the right to be left alone, including the right not to have to defend publicly private choices and taste, by learning not to feed the privacy trolls.
(Hat tip to Glenn)

Related Posts (on one page):

  1. Mrs. K for the Defense:
  2. More on Kozinski:
  3. Kozinski:
  4. Lessig on the Kozinski Kerfuffle

Thirty-three years ago today,

on a Friday the 13th (like today), my family, including Eugene and me, left the Soviet Union.


How the Irish Saved Civilization, Again

The Irish Times reports that the Lisbon Treaty has been defeated in a referendum held in the Republic of Ireland. The Lisbon Treaty is a new version of the proposed EU Constitution, which had previously been rejected by the voters of the France and the Netherlands. This time, the French and Dutch governments refused to allow a popular vote. In the U.K., the Labour Party had promised a referendum, but that promise was broken. Former French President Valery Giscard d'Estaing explained: "Public opinion will be led to adopt, without knowing it, the proposals that we dare not present to them directly... All the earlier [EU Constitution] proposals will be in the new text [Lisbon Treaty], but will be hidden and disguised in some way."

Treaty proponents lamented that Ireland, with only 1% of the EU population, could derail a 27-nation treaty. But the very fact that only 1% of the EU's population was allowed to vote on a treaty which would massively reduce national sovereignty and democratic accountability was itself an illustration of the enormous "democratic deficit" of the EU in general, and the Lisbon Treaty in particular. According to French President Nicolas Sarkozy, the Lisbon Treaty would be defeated in every EU nation if referenda were allowed.

The referendum debate in Ireland involved some Irish-specific issues, such as the Treaty's impact on farmers, its threat to Ireland's official foreign policy of neutrality, and the danger that Ireland might be forced to raise its low corporate income tax rate of 12.5% (which almost everyone agrees has been an essential part of the economic success of the Celtic Tiger). But the broader opposition seemed to stem from the sheer incomprehensibility of the Treaty. Even Taoiseich (Prime Minister) Brian Cowen admitted that he had not read the Treaty, which is over 400 pages long and deliberately written to be obscure. Treaty proponents included both of the two largest political parties (Fianna Fail and Fine Gael), and they appealed to the Irish people's strong support of trade with Europe, and to Ireland's optimistically internationalist orientation.

A group named Libertas was formed to lead the opposition, and Libertas agreed with the principles of international trade and Ireland's integration into Europe. But Libertas was successful at convincing Irish voters that the Treaty was perilous threat to the democratic sovereignty which is the glory of European civilization, and for which the Irish had struggled for so many centuries to win for themselves.

More coverage at the excellent British site EU Referendum (which astute readers may remember for its outstanding work in exposing media complicity in cooperating with Hezbollah to create staged pictures of the alleged Israeli atrocities at Qana, Lebanon).


Boumediene Insta-Symposium:

Opinio Juris is hosting an "Insta-Symposium" on yesterday's Boumediene decision. Contributors include Steve Vladeck, Deborah Pearlstein, Ted White, Eric Freedman, and the Opinio Juris regulars, among others, with more to come. Check it out.


Inaccurate Statement by Brady Campaign's head

The Brady Campaign's preemptive announcement of defeat in District of Columbia v. Heller contains an interesting bit of spin:

But given that McCain stood by his support for closing "the gun-show loophole" during a recent speech to the N.R.A., the Brady Campaign president hopes that new gun restrictions can make headway regardless of who wins in November.
"For John McCain to be the political candidate of the NRA shows how things have changed," Helmke said.
Plus ca "change," plus c'est la meme chose. In 2000, the NRA endorsed Texas Governor George W. Bush, who supported a similar provision regarding gun shows. Accordingly, the NRA's endorsement of McCain is not good evidence that gun control is more popular in 2008 than it was in 2000.

Related Posts (on one page):

  1. Inaccurate Statement by Brady Campaign's head
  2. "We've Lost the Battle on What the Second Amendment Means,"

Property Rights and Climate Change Revisited:

A few years back, I challenged the traditional "conservative" or "libertarian" approach to global warming. I wrote:

The scientific debate over global warming is not so much over whether anthropogenic emissions will affect the climate. Rather it is over the nature and magnitude of the likely effects. Even the most ardent global warming skeptics within the scientific community believe that the increased accumulation of greenhouse gases in the atmosphere will have some effect. The policy question, then, is what (if any) measures are justified to prevent or mitigate such effects.

Most on the "right" argue that the best response is to do little or nothing. While some advocate various "no regrets" policies to improve the efficiency of energy markets (and perhaps pave the way for alternative fuels) -- as I did here -- few conservatives, libertarians, or other free-market advocates believe the most reliable climate forecasts justify drastic measures to suppress the use of carbon-based fuels. The costs of such measures, many argue, are likely to swamp the costs of climate change, and more direct measures to address global ills that could be exacerbated by climate change (disease, flooding, weather extremes, etc.) would be far more cost-effective than reducing greenhouse gas emissions.

As an analytical matter, these assessments are probably correct -- it is hard to justify one Kyoto on economic grounds, let alone the dozen or so that would be necessary to stabilize greenhouse gas concentrations in the atmosphere -- but that does not mean the proper "free market" climate policy is to "do nothing."

If property rights lie at the heart of free market environmentalism (FME), then FME advocates should think seriously about the normative implications of human-enhanced climate changes that could disproportionately harm those portions of the world that have (at least thus far) contributed least to the problem. Even if a modest warming were, on balance, beneficial, the impacts would not be uniform. It may well be, as some argue, that increases in crop productivity and reduced energy costs in temperate regions will be greater than the costs to tropical regions, but this does not address the property rights concern absent some system whereby industrialized nations would compensate or indemnify less-developed nations. No such system exists -- nor is it likely that existing international institutions could implement such a system -- but that does not mean it would not be the first-best approach to climate change from an FME perspective.

Various folks, from Tyler Cowen to Brad DeLong to Carl Pope, responded favorably to this approach. My FME allies, not so much.

This week, the Reason Foundation is hosting a roundtable on the issue, featuring an exchange between me ("Climate Change As If Property Rights Mattered") and my friend Indur Goklany ("Climate Change: No Harm, No Claim"), with an introduction by Shika Dalmia. Ronald Bailey comments on Hit & Run here. I'll also be drafting a response to Goklany in the next few days.


FEC BCRA Regs Sent Back (Again):

This morning the U.S. Court of Appeals for the District of Columbia Circuit once again invalidated several Federal Elections Commission regulations implementing the Bipartisan Campaign Reform Act of 2002 (BCRA, aka "McCain-Feingold") in Shays v. FEC. The opinion for the court, by Judge Tatel, begins as follows:

Congress passed the McCain-Feingold Act, formally known as the Bipartisan Campaign Reform Act of 2002 (BCRA) in an effort to rid American politics of two perceived evils: the corrupting influence of large, unregulated donations called “soft money,” and the use of “issue ads” purportedly aimed at influencing people’s policy views but actually directed at swaying their views of candidates. The Federal Election Commission promulgated regulations implementing the Act, but in Shays v. FEC (“Shays II”), we rejected several of them as either contrary to the Act or arbitrary and capricious, concluding that the Commission had largely disregarded the Act in an effort to preserve the pre-BCRA status quo. Now the FEC has revised the regulations we earlier rejected and issued several new ones, three of which are before us here: (1) a “coordinated communication” standard, the original version of which we rejected in Shays II; (2) definitions of “get-out-the-vote activity” and “voter registration activity”; and (3) a rule allowing federal candidates to solicit soft money at state party fundraisers. Although we uphold one part of the coordinated communication standard known as the “firewall safe harbor,” we reject the balance of the regulations as either contrary to the Act or arbitrary and capricious. We remand these regulations in the hope that, as the nation enters the thick of the fourth election cycle since BCRA’s passage, the Commission will issue regulations consistent with the Act’s text and purpose.

I expect that Rick Hasen's Election Law Blog will have more on this later today.


"We've Lost the Battle on What the Second Amendment Means,"

says the president of the Brady Campaign, a leading gun control group. "Seventy-five percent of the public thinks it's an individual right. Why are we arguing a theory anymore? We are concerned about what we can do practically." The story continues:

If the Supreme Court strikes down the D.C. gun ban, the Brady Campaign is hoping that it will reorient gun control groups around more limited measures that will be harder to cast as infringements of the Second Amendment.

"The NRA [National Rifle Association] won't have this fear factor," [Campaign president Paul] Helmke said.

Bob Cottrol made a similar argument nearly 20 years ago (though he's generally a pro-gun-rights scholar, and probably has a different view than the Brady Campaign about which limited gun control measures are sound).

Related Posts (on one page):

  1. Inaccurate Statement by Brady Campaign's head
  2. "We've Lost the Battle on What the Second Amendment Means,"

Thursday, June 12, 2008

An Amazing Celtics Comeback:

I won't annoy our many California readers by rhapsodizing about it at length - or at least I won't annoy them more than "the public Safety may require":). But I do want to congratulate the Celtics for achieving the greatest comeback victory in the history of the NBA finals, overcoming a 24 point deficit to defeat the favored Lakers on the road. The Celtics were down by 20 as late as the middle of the third quarter. Considering the size of the deficit, the importance of the game, and the quality of the opponent, it's also probably the most impressive single-game comeback in the 125 year history of major professional sports in Boston. Go Celtics!

UPDATE: Judging by some of the comments, I suppose I have to spell out the obvious: For Boston fans, nothing can ever top the Red Sox comeback from 3-0 down in the 2004 American League Championship Series against the Yankees. However, the Reversal of the Curse was not a "single-game" comeback (a crucial qualification in the original post). In none of those four individual games did the Red Sox overcome a deficit nearly as great as that which the Celtics faced tonight. In the pivotal Games 4 and 5, the Red Sox never trailed by more than two runs. In games 6 and 7, the Sox led all the way. As a series, the 2004 ALCS was a vastly more important comeback than anything the Celtics do in the current series could be. But no single game in that series included as great a comeback as the one the Celtics just made.


Could Congress Suspend the Writ of Habeas Corpus in the War on Terror?

In my last post on the Court's decision in Boumedienne, I suggested that Congress could, if it wanted to, revoke War on Terror detainees' rights to a hearing in federal court by suspending the writ of habeas corpus. In his own more recent post, Jonathan Adler raises some interesting questions about whether Congress really could suspend the writ. As Jonathan puts it:

The Suspension Clause provides that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." This language seems to impose two separate conditions on the use of the clause: 1) "Rebellion or Invasion" and 2) "public Safety." Assuming, for the sake of argument, that these requirements are justiciable (an assumption I don't necessarily accept) what showing would the government have to make?

Before trying to address this issue, I should note that the meaning of these two requirements of the Suspension Clause have never been litigated in the Supreme Supreme Court, and that I am not a habeas expert. Therefore, I'm far from certain that I'm right about what I say below, and would welcome correction from specialists in the field.

That said, I think Jonathan asks exactly the right questions. However, I am less skeptical than he is that the requirements in question could be met. The War on Terror surely doesn't qualify as a "Rebellion," but Al Qaeda's attacks on New York and Washington DC and its attempts to attack other targets in the United States could potentially qualify as an "Invasion." A relatively small invasion to be sure (in terms of the number of enemy combatants involved). But a big one in so far as it has killed more Americans than any other incursion of enemy forces onto US soil in our history, at least since the War of 1812.

One could potentially interpret the requirement of "Rebellion or Invasion" to mean that the writ can only be suspended in those areas where the invasion is ongoing; Jonathan, in his post, seems to make this assumption or at least raise the possibility that it is correct. If the assumption is valid, it rules out suspension of the writ with respect to enemy personnel captured abroad or anywhere in the United States other than New York City and Washington, DC on the day of September 11, 2001 itself. However, I don't think the assumption is valid. No such restriction on the scope of the suspension power is is evident in the text. And it would be somewhat absurd to hold that Congress can only suspend the write of habeas corpus in those parts of the United States where US authorities have no ability to detain people anyway because the areas in question are occupied by enemy forces. I also don't think that the constitutional validity of suspension depends on whether the detainees are held at Guantanamo or some other site. Nothing in the clause suggests that suspension is only permitted if the detainees are held in the same general area as the location of the rebellion or invasion that triggered the Suspension Clause in the first place.

A related question is whether the "invasion" has ended now that (as far as we know) al Qaeda forces are no longer present on US soil in any significant numbers. My tentative view is that the emergency triggered by an invasion can continue so long as the war that the invasion was a part of does. It doesn't necessarily require the continued presence of enemy forces on US soil, though it probably does require a continued serious threat that they may return as part of the same ongoing conflict.

The second requirement - that "the public Safety may require" suspension - is even more difficult to assess. Much depends on the question of how much deference courts should grant to executive or congressional determinations that the public safety really would be threatened if the writ is not suspended. It seems to me that the text does mandate some degree of deference because it states that the standard is that "the public Safety may require" suspension. This suggests that the government need not definitely prove that suspension is essential to public safety.

At the same time, I don't think that the language of the Suspension Clause justifies near-absolute judicial deference to a congressional determination that the public safety requires suspension. My best guess is that the "public safety" prong of the Clause could be satisfied by something similar to proof by a preponderance of evidence. As a practical matter, I think that the Court would defer to Congress' judgment if the suspension were narrowly targeted and supplemented by some other form of due process protection for detainees.

As Jonathan indicates, the above analysis assumes that these issues are justiciable at all. It could be argued that they are within the exclusive judgment of Congress. I won't argue this issue in detail. But I doubt that the rebellion/invasion and "public safety" requirements of the Clause are completely nonjusticiable. If they were, Congress could decide that virtually any real or imagined emergency is a threat to "public safety" and then use it as an excuse to suspend the writ of habeas corpus.

To say that suspension of the writ would (probably) be constitutional is not to say that it should be done. I'm not sure that it should be enacted at all. If Congress does attempt suspension, I believe that any such effort should be narrowly focused, and supplemented with other types of protections for the rights of detainees.


Today's Other Habeas Decision:

Overshadowed by the Supreme Court's 5-4 decision in Boumediene was the Court's unanimous opinion in Munaf v. Geren, another habeas case arising out of the war on terror. In Munaf, the Court considered whether U.S. courts have jurisdiction over habeas corpus petitions filed on behalf of U.S. citizens challenging their detention in Iraq by the U.S. military and, if so, whether a U.S. district court may issue an injunction prohibiting the military from transferring such individuals to Iraqi authorities.

In an opinion by Chief Justice Roberts, the Court first concluded that U.S. courts may entertain habeas petitions brought by U.S. citizens in military custody overseas. The Court rested its decision on 28 U.S.C. 2241(c), which explicitly extends such jurisdiction to habeas petitions brought by individuals held "in custody under or by color of the authority of the United States," or "in custody in violation of the Constitution or laws or treaties of the United States." The government had sought to argue that this provision does not apply here because U.S. forces in Iraq are participating in a multi-national force, but the Court readily dispatched this argument noting that the petitioners "are American citizens held overseas in the immediate 'physical custody' of American soldiers who answer only to an American chain of command."

While the Court upheld federal jurisdiction, it nonetheless rejected the petitioners' ultimate claims, concluding that district courts could not issue the injunctions sought. The traditional remedy for a habeas violation is release. Yet that would not do the petitioners much good here, as to be released by U.S. troops would place the petitioners in danger of being apprehended by Iraqi authorities, producing the precise result they sought to avoid -- potential detention and trial by the Iraqi government. As Roberts concluded, "Habeas corpus does not require the United States to shelter such fugitives from the criminal justice of the sovereign with authority to prosecute them." That the petitioners alleged they could be subject to torture or other inhumane treatment may make them more sympathetic, but the Court rejected any suggestion such fears strengthened their legal claim. Thus, in the end, the Court concluded that the petitioners "state no claim in their habeas petitions for which relief can be granted," and ordered their petitions dismissed.


Can Congress Suspend Habeas in Guantanamo?

In his post below, Orin suggests that if Congress were to object to the Court's Boumediene decision, it could "formally suspend the Writ as it applies to Guantanamo Bay" under the Constitution's Suspension Clause. I am not so sure.

The Suspension Clause provides that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." This language seems to impose two separate conditions on the use of the clause: 1) "Rebellion or Invasion" and 2) "public Safety." Assuming, for the sake of argument, that these requirements are justiciable (an assumption I don't necessarily accept) what showing would the government have to make? Would Guantanamo itself have to be invaded or subject to a rebellion? Or would a rebellion or invasion somewhere else suffice? Even if not justiciable, the application of these requirements to Guantanamo seems problematic at a conceptual level. And insofar as Boumediene could be used support the application of the Suspension Clause's requirements to other territories outside of the de jure sovereignty of the United States, it seems to me that the conceptual problems would only increase. Am I missing something?


Lawrence panel at ACS:

Tomorrow at the annual convention of the American Constitution Society in Washington there will be a panel on the impact of Lawrence v. Texas five years after the decision. The panel is scheduled for 2:45 pm to 4:15 pm. The panelists are: Nan Hunter, Paul Smith, Joseph Guerra, H. Alexander Robinson, and me. If you're a reader and will attend, come by and say hello.

It's Unlikely, But Worth Noting: In today's debates on Boumediene v. Bush, I think it's worth noting that there's a way in which Congress could still go back to the pre-Rasul or pre-Boumediene state of the law: Congress could formally suspend the Writ as it applies to Guantanamo Bay. The Suspension Clause does not require the writ of habeas corpus; rather, it states that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." (emphasis added)

  As far as I know, the Court has never analyzed whether the "public safety" exception is justiciable or is a political question, or what standards could apply to judicial review of it. (See my colleague Amanda Tyler's article, Is Suspension a Politcal Question?, for more.) But if the political branches wanted to go back one more time, they could, subject to the possibility of judicial review of their assessment of the need for the suspension. To be clear, I'm not recommending this; and I think it's extremely unlikely that it would happen for political reason. But I think it's worth noting that it's possible.

Boumediene, Executive Power, and Congressional Power:

I have not yet had a chance to fully study the Court's opinion in Boumediene v. Bush. But I will note one very important aspect of this case that differs from the Court's previous war on terror decisions rebuking the Bush administration. In earlier cases such as Rasul v. Bush, Hamdi v. Rumsfeld, and Hamdan v. Rumsfeld, the Court invalidated unilateral actions taken the by the executive, repudiating the Bush Administration's ultra-expansive interpretation of wartime executive power. However, Hamdan specifically left open the possibility that the administration's Guantanamo policies might be constitutional if authorized by congressional legislation. The Republican Congress (for the most part) provided that authorization in the Military Commissions Act of 2006.

In Boumediene, the Court challenges congressional power as well as the executive. It strikes down as unconstitutional several provisions of the Detainee Treatment Act of 2005 and the MCA. This is a nearly unprecedented situation where the Court rejected an important assertion of wartime power backed by both of the other branches of government. To my knowledge, virtually every previous case in which the Court ruled an important wartime policy unconstitutional was one where the policy in question was adopted by the executive acting alone.

As a political matter, the majority justices might might well have reasoned that they could avoid a dangerous interbranch confrontation because the Republican Congress which enacted the DTA and MCA is now gone, and the Bush Administration has only a few months remaining. But even a Democratic administration and Congress might be reluctant to give terrorist detainees as much protection as Boumediene requires.

The fact that the decision challenges congressional power as well as executive power doesn't mean that it is necessarily wrong. On that question, I am divided in my own mind. The difficult question is whether habeas corpus applies to enemy combatants seized in operations abroad (I don't doubt that the Bush Administration was wrong to assert that it doesn't apply to US citizens accused of terrorist acts and captured in the US).

Importantly, the Court does leave Congress a way out. If it wants to, Congress could still strip detainees of the protection they get under Boumediene by enacting a statute suspending the writ of habeas corpus under the Suspension Clause. With a Democratic Congress, I suspect that we might get a new detainee law that suspends the writ for certain categories of terror detainees, but also perhaps gives them more procedural rights than they got under the Republican-enacted MCA. For a variety of reasons, I doubt that the Democrats will be willing to take the risk of allowing the detainees to retain full habeas rights. If they don't act and a terrorist released as a result of a habeas petition commits some atrocity, the Dems will take a predictable political hit. Especially if Obama wins the presidential election, expect the Democrats to enact some sort of partial suspension of habeas corpus, combined with new, but limited statutory procedural rights for detainees. At least that is my tentative prediction.

UPDATE: Some commenters cite Ex Parte Milligan as an example of a case where the Court invalidated a joint congressional-executive wartime policy. In a narrow technical sense, they have a point. However, it is important to recognize that Milligan was decided only after the war in question (the Civil War) was over. The Court would have been much more reluctant to take on both of the other branches if the war had still been ongoing (as of course it still is in the Boumediene case).

UPDATE #2: As Marty Lederman points out in an e-mail to me, the Milligan decision actually held that the president lacked congressional authorization for his actions in so far as the Habeas Corpus Act of 1863 forbade him to subject civilians to military jurisdiction in states where the civilian courts continued to operate. The Court also ruled that, in some situations, even Congress would lack the power to subject civilians to military trials; but it emphasized that Congress had not taken any such action in the case before it. Be that as it may, it is significant that even in Milligan, the Court did not repudiate both of the other branches of the federal government head on, in the way it has now done in Boumediene.


SSRN Citation: This is completely nonsubstantive, but I note that the Court's majority opinion in Boumediene cites a draft article up on SSRN:
See Halliday & White, The Suspension Clause: English Text, Imperial Contexts, and American Implications, 94 Va. L. Rev. (forthcoming 2008) (hereinafter Halliday & White) (manuscript, at 11, online at /papers.cfm?abstract_id=1008252 (all Internet materials as visited June 9, 2008, and available in Clerk of Court’s case file) (noting that “conceptually the writ arose from a theory of power rather than a theory of liberty”)).
As far as I know, that's the first Supreme Court citation to a forthcoming article that is on SSRN. I would guess that the citation will be changed to the final version by the time the Boumediene case is compiled into the U.S. Reports, so in the end the Court's opinion will cite an article as published that wasn't when the opinion was handed down. Kinda cool.

Key Quotes from Boumediene v. Bush: In this post, I want to excerpt the key passages from the majority opinion in Boumediene v. Bush. Boumediene is a remarkably long opinion — 70 pages, probably Justice Kennedy's longest majority opinion ever. Here are the key sections:

   First, in Justice Kennedy's majority opinion, the Court concludes that the detainees have a Constitutional right to habeas relief at Gitmo. Here's the holding stated in the majority opinion:
Petitioners present a question not resolved by our earlier cases relating to the detention of aliens at Guantanamo: whether they have the constitutional privilege of habeas corpus, a privilege not to be withdrawn except in conformance with the Suspension Clause, Art. I, §9, cl. 2. We hold these petitioners do have the habeas corpus privilege. Congress has enacted a statute, the Detainee Treatment Act of 2005 (DTA), 119 Stat. 2739, that provides certain procedures for review of the detainees’ status. We hold that those procedures are not an adequate and effective substitute for habeas corpus. Therefore §7 of the Military Commissions Act of 2006 (MCA), 28 U. S. C. A. §2241(e) (Supp. 2007), operates as an unconstitutional suspension of the writ. We do not address whether the President has authority to detain these petitioners nor do we hold that the writ must issue. These and other questions regarding the legality of the detention are to be resolved in the first instance by the District Court.
The Court then goes on to talk a lot about the history of habeas, and then distinguishes Eisentrager very much along the lines of Justice Kennedy's concurrence in Rasul v. Bush. The Court then concludes that the detainees have a constitutional right to habeas:
It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history. See Oxford Companion to American Military History 849 (1999). The detainees, moreover, are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government. Under these circumstances the lack of a precedent on point is no barrier to our holding.

We hold that Art. I, §9, cl. 2, of the Constitution has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees now before us, Congress must act in accordance with the requirements of the Suspension Clause. . . . The MCA does not purport to be a formal suspension of the writ; and the Government, in its submissions to us, has not argued that it is. Petitioners, therefore, are entitled to the privilege of habeas corpus to challenge the legality of their detention.
The Court then looks to whether the alternative to traditional habeas is adequate and effective, which the Court interprets as asking if the alternative is similar to traditional habeas. The Court concludes that the law Congress passed, the Detainee Treatment Act (DTA), is not adequate and effective alternative to traditional habeas:
Congress intended the Court of Appeals to have a more limited role in enemy combatant status determinations than a district court has in habeas corpus proceedings. The DTA should be interpreted to accord some latitude to the Court of Appeals to fashion procedures necessary to make its review function a meaningful one, but, if congressional intent is to be respected, the procedures adopted cannot be as extensive or as protective of the rights of the detainees as they would be in a [habeas] proceeding. Otherwise there would have been no, or very little, purpose for enacting the DTA.
The Court then details ways in which the DTA is insufficiently protective, and concludes that the problems with the DTA are too major to allow minor tinkering:
[E]ven if it were possible, as a textual matter, to read into the statute each of the necessary procedures we have identified, we could not overlook the cumulative effect of our doing so. To hold that the detainees at Guantanamo may, under the DTA, challenge the President’s legal authority to detain them, contest the CSRT’s findings of fact, supplement the record on review with exculpatory evidence, and request an order of release would come close to reinstating the §2241 habeas corpus process Congress sought to deny them. The language of the statute, read in light of Congress’ reasons for enacting it, cannot bear this interpretation. Petitioners have met their burden of establishing that the DTA review process is, on its face, an inadequate substitute for habeas corpus.

Although we do not hold that an adequate substitute must duplicate §2241 in all respects, it suffices that the Government has not established that the detainees’ access to the statutory review provisions at issue is an adequate substitute for the writ of habeas corpus. MCA §7 thus effects an unconstitutional suspension of the writ.
Finally, near the end of the decision, the Court gets to the timing of habeas review. Can a court step in with a habeas proceeding immediately, or do they have to wait for CSRT hearings? Here's what Justice Kennedy concludes:
In cases involving foreign citizens detained abroad by the Executive, it likely would be both an impractical and unprecedented extension of judicial power to assume that habeas corpus would be available at the moment the prisoner is taken into custody. If and when habeas corpus jurisdiction applies, as it does in these cases, then proper deference can be accorded to reasonable procedures for screening and initial detention under lawful and proper conditions of confinement and treatment for a reasonable period of time. Domestic exigencies, furthermore, might also impose such onerous burdens on the Government that here, too, the Judicial Branch would be required to devise sensible rules for staying habeas corpus proceedings until the Government can comply with its requirements in a responsible way.

Our holding . . . should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ runs. The Executive is entitled to a reasonable period of time to determine a detainee’s status before a court entertains that detainee’s habeas corpus petition. The CSRT process is the mechanism Congress and the President set up to deal with these issues. Except in cases of undue delay, federal courts should refrain from entertaining an enemy combatant’s habeas corpus petition at least until after the Department, acting via the CSRT, has had a chance to review his status.
However, the Gitmo detainees have been held for up to 6 years, and they deserve a prompt hearing:
While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing.
Justice Kennedy's opinion concludes with a message to the Bush Administration:
Officials charged with daily operational responsibility for our security may consider a judicial discourse on the history of the Habeas Corpus Act of 1679 and like matters to be far removed from the Nation’s present, urgent concerns. Established legal doctrine, however, must be consulted for its teaching. Remote in time it may be; irrelevant to the present it is not. Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives.

Our opinion does not undermine the Executive’s powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch. Within the Constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person. . . The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.

Soccer. Soccer. And More Soccer.

My last posting about the European soccer championships generated some of the usual soccer/anti-soccer comments, which I had hoped to avoid so that we could talk about the games, instead of talking about whether we should be talking about the games . . . Listen, I understand that some of you don’t like soccer – that’s your loss, as far as I’m concerned, but there you go. Watching sports is fundamentally an aesthetic experience, and some like Radiohead and some people don’t, some like Rauschenberg and others like Bellini, some can watch an NBA game and actually enjoy the experience, others (like me) are unable to do so. There’s really not much point in arguing about it. What can be said about comments like:

“Even pro-soccer articles make it sound horrible. Exciting 1-0 games! Inspiring 2-0 games!”

My response to someone who can’t even imagine an exciting 1-0 game is much like my response to someone who says they can’t listen to Wagnerian opera or the symphonies of Beethoven – man, you’re missing something pretty amazing, but what can I say? I don’t get NASCAR – some people do. Or this:

“Soccer is a game with flawed rules and I can prove it. First of all a team can be man down for an entire game and not be assured of losing. That means that the rules are set too far in favor of the defense, there is no other sport that you could play with 1 fewer player all game and still be competitive or actually win.”

It’s true – teams that are a man down can, sometimes, actually prevail. That’s a bad thing because ? ? ?

Anyhow, on to the games. I’m going to keep writing about the Euro2008, because it’s a global event of significant magnitude for hundreds of millions of people, and because the soccer is so damned good. [And if you are posting comments, please do respect the “Tivo courtesy” rules – don’t give away any scores, please, in case some of those reading the comments have yet to see the games. [, incidentally, has a nice “replay” subscription you can buy, 20 euros for a streamed version of every game, beginning 6 hours or so after the final whistle]

The Netherlands destroyed Italy, 3-0 – with many interesting back stories flying around, not the least of which was that the crucial first goal was (notwithstanding UEFA’s declaration to the contrary, the result of a blown offside call). Not only had the Dutch not beaten the Italians in 30 years (since the days when they were led by the great Johann Cruyff), but they had been knocked out of the 2000 championships by Italy under the cruelest of circumstances. I actually attended that game, and it was without question the most extraordinary sporting event I have ever witnessed. It’s the semifinal, the game is in Amsterdam, the Dutch have looked completely unbeatable (they took Yugoslavia apart, 6-1 I think it was, in the quarterfinals), and the Dutch – who have produced some remarkable teams, but only one European champion to go along with their zero World Cups) – were delirious. Amsterdam was in a frenzy all day long. At the Amsterdam Arena (capacity 55,000), there are 50,000 people dressed entirely in orange, waving little orange flags, singing in unison, beginning an hour or so before kickoff. And one little tiny patch of blue – the Italians, maybe 3,000 strong. The Dutch play beautifully – but simply cannot put the ball in the net. Bergkamp hits the post . . . Kluivert hits the crossbar. There are not one but TWO penalties awarded to the Dutch – and they miss them both!! The feeling in the stadium was palpable, and unlike anything I’ve ever experienced – dread and foreboding and a kind of horrified resignation that it wasn’t to be. The Dutch players – quite visibly – began to tighten up, to get frustrated and angry. The game ends 0-0, and the Dutch, predictably, make a horrible hash out of the penalty shootout, missing three of their four attempts. It was ghastly. The crowd, walking back to the subway, was silent. Not quiet – completely silent. It was quite terrifying, actually. At about 3 AM I walked from the train station in Rotterdam to my hotel; not a soul on the street except for me and one old man, who, as he walks by me, just puts up his hand with all five fingers spread out in the air, and grunts “Funf!” [referring, of course, to the 5 penalty kicks they missed].

I’ve always pulled for the Dutch, and I think they could make a run for it this time. It’s a hell of a squad they’ve got – though their defense is suspect, and they are in a true “Group of Death” with Italy, France, and Romania in the first round. My money, though, is still on Spain (who looked wonderful in taking apart the Russians). Look for a Spain-Netherlands semifinal – that would be a helluva matchup.

Related Posts (on one page):

  1. The Euros March On:
  2. Soccer. Soccer. And More Soccer.
  3. One - Nil:

As Expected: Based on a very quick skim, it looks the Court's opinion in Boumediene v. Bush is pretty much exactly what I predicted would happen in my Senate testimony over a year ago. Nothing I've seen in the Court's opinion so far is at all surprising, and it's a big defeat for the Bush Administration. This doesn't mean I have some amazing powers of observation; rather, I think this was a defeat that you could see coming from miles (or in this case, years) away. Or perhaps that whatever happened inside the Court on the road to the opinions, the result is pretty much what was expected.

Another 5-4 Opinion Today:

Among today's opinions, the Supreme Court also issued a 5-4 decision in Irizarry v. United States, a sentencing case. Here's the line-up: Justice Stevens wrote the opinion for the Court, joined by the Chief Justice and Justices Scalia, Thomas, and Alito. Justice Breyer dissented, joined by Justices Kennedy, Souter, and Ginsburg.


BREAKING - Gov't Loses Boumediene 5-4:

Details on SCOTUSBlog (where else), as they become available. Justice Kennedy wrote the majority opinion. The opinions are here.

UPDATE: The Chief Justice and Justice Scalia wrote dissenting opinions (each joined by the usual suspects). Justice Souter wrote a concurrence joined by Ginsburg and Breyer.

FURTHER UPDATE: Lyle Denniston is giving insta-analysis of the opinions here. While it was generally anticipated that the government would lose the case, he calls the decision a "stunning blow to the Bush Administration in its war-on-terrorism policies."

LAST UPDATE: As I (super-quickly) skim Justice Kennedy's opinion for the Court, it appears to hold that Guantanamo detainees have habeas rights, that these rights can only be denied through a valid suspension of habeas rights (under the Suspension Clause of the Constitution), that the procedures created by the Detainee Treatment Act were not an adequate substitute for habeas, and therefore Section 7 of the Military Commission Act is an unconstitutional suspension of the detainees' habeas rights. I'm sure I (and others) will have more to say about this case in subsequent posts.


A Day in the Life:

So here’s a summary of my 24 hours, beginning this past Sunday morning. I was going from my home in DC to New York, where I was meeting some friends and going out to the soccer game (U.S. v. Argentina) that evening at the Meadlowlands. The following morning, I had to take the train to Windsor Locks CT – my car was parked at Bradley Airport outside of Hartford, and I was going to pick it up.

The Acela from DC to NYC arrived 45 minutes late – due in at 348 PM, it arrived around 430. My friends and I were driving to the game – there is some public transportation to the Meadowlands, but it’s limited to a bus from Port Authority terminal in New York, and we’ve heard too many horror stories of people stranded for hours after events, waiting for the bus, to want to risk it. Traffic to and from the stadium is a complete nightmare – everyone is diverted into a large 4-story parking garage, and we sit in traffic for around 45 minutes or so, creeping along at 2-5 mph. [Wasting insane amounts of gasoline in the aggregate, needless to say]. Having left the Upper West Side at 6 PM, we get to the traffic knot at around 6:20 or so, but we don’t make it to our seats until 7:35, precisely at kickoff.

Getting out, as you might guess, was even worse – we sat, literally motionless, for over an hour on one of the garage ramps. And my train to Windsor Locks the next morning? Again, an hour or so behind schedule. Not to mention the utter bleakness of the built environment through which you pass; there are some lovely spots along the way, but the stations in Stamford, Bridgeport, New Haven, and Hartford, and the landscapes around them, are about as ugly as anything you’d see in Moldova or Indonesia -- not quite "third world," but surely not top drawer.

This country is starting to feel second-rate to me, and it’s not a pleasant feeling. The worst part of this entire experience was that nobody really seems to give a damn, or be in the least surprised, about complete breakdowns like these. There’s nothing in the newspaper the next day: “Thousands Stranded at Stadium – Meadowlands Operators Apologize for ‘Appalling Inefficiency.’” Why would there be? It happens like this all the time. It’s just the way it is. Folks sitting in their cars, listening to the radio, and the guys with the flashlights who are supposedly guiding the traffic just standing around, doing absolutely nothing. If you want to go to an event in the Meadowlands, just plan on wasting a minimum of 3 or 4 hours sitting in your car. What can you do? The Windsor Locks train (the “Vermonter”) arrives on schedule, according to Amtrak’s own figures, about 20% of the time. Think about that for a second – running a train that keeps to its schedule 1 day out of every 5. [And I strongly suspect that Amtrak's definition of "on time" is something like (within 1/2 hour of the schedule). Well, what can you do? It’s just the way it is.

Really, our public infrastructure – our public life – is in the process of deteriorating, and we don’t seem to be able to summon up the energy required to do anything about it. Maybe I’m wrong about that. I work in Philadelphia, probably the world capital of “what can you do? it’s just the way it is” – the public transportation system in Philadelphia is a grotesque monstrosity, filthy, noisy, and monumentally unpleasant, and the general feeling seems to be that it would be a miracle if we could find some way just to keep it from getting any worse – so maybe I’m oversensitive to the problem. But if I had had a guest with me from overseas on this trip, I would have been appalled and embarrassed by the state of decay into which we, collectively, have allowed things to fall.

Maybe it had something to do with the fact that we were playing Argentina – Argentines, after all, understand all too well how first-rate countries can become second-rate countries, in the blink of an eye. In 1920, Argentina was the sixth- or seventh-richest country in the world; by the end of the century, it was far, far down the list. .


Are the Chinese Drilling of Florida's Coast?

It's become a regular talking point in energy policy debates that China and Cuba are drilling for oil only 60 miles off of Florida's coast. If true, it would mean that China is drilling for oil closer to Florida than any U.S. firm. But this report from the McClatchy news service says it's just an urban legend.

no one can prove that the Chinese are drilling anywhere off Cuba's shoreline. The China-Cuba connection is "akin to urban legend," said Sen. Mel Martinez, a Republican from Florida who opposes drilling off the coast of his state but who backs exploration in ANWR.

"China is not drilling in Cuba's Gulf of Mexico waters, period," said Jorge Pinon, an energy fellow with the Center for Hemispheric Policy at the University of Miami and an expert in oil exploration in the Gulf of Mexico. Martinez cited Pinon's research when he took to the Senate floor Wednesday to set the record straight. . . .

China's Sinopec oil company does have an agreement with the Cuban government, but it's to develop onshore resources west of Havana, Pinon said. The Chinese have done some seismic testing, he said, but no drilling, and nothing offshore. . . .

Cuba's state oil company, Cupet, has issued exploration contracts to companies from India, Canada, Spain, Malaysia and Norway, according to diplomats.

But many oil companies from those countries have expressed reservations about how to turn potential crude oil into product. Cuba doesn't have the refinery capacity, and the Cuban embargo prohibits the oil from coming to U.S. refineries, Pinon said.

The most recent high-profile contract with Cuba went to Brazil's state oil company, Petrobras. Cuba inked a contract with Petrobras in January, allowing the Brazilian energy giant to search for oil in the deep waters of the Gulf of Mexico that are within Cuba's sovereign territory.


Is the NBA Trying to Silence Donaghy?

I've discussed the recent controversy about the NBA game fixing in a couple of recent posts — a subject being batted around in the blogosphere. What has not been widely discussed is Donaghy's additional allegations that the NBA is trying to silence him. Whatever one makes of the other allegations, this one rings true.

Sentencing in the case was originally set for November 2007. The NBA did not request any restitution. Sentencing was postponed, presumably to allow Donaghy to cooperate with the government. On May 19, 2008, Donaghy sent his letter describing his "cooperation" to the sentencing judge — a letter which included the sensational allegations about NBA game fixing. The result? On June 5, 2008, the NBA sent a letter to the probation officer working on the case requesting — for the first time — $1 million in restitution. The NBA argues that this was the cost of the "internal investigation" that it had to conduct to determine who was involved in illegal gambling.

I'm an advocate for crime victims. I believe that the victims should be fully reimbursed for losses that they have suffered as a consequence of the crime. But as the NBA's lawyers must know, current federal law does not allow for restitution of consequential damages — such as the costs of an internal investigation.

I testified about this very problem back in April before the Crime Subcommittee of the House Judiciary Committe. My testimony can be found here. The problem is that current federal restitution law only allows a victim to recover for losses that fall into certain narrow pigeon holes — lost income, medical expenses, and the like. Consequential damages are simply not authorized.

In light of all this, I agree with Donaghy's lawyers that the NBA's belated request for $1 million in restitution is a "transparent effort to intimidate Mr. Donaghy." A copy of Donaghy's lawyer's letter can be found here.

Update: Here is an interesting analysis of the issue from the Opposition Brief.


Wednesday, June 11, 2008

Was Ralph Nader Right About the NBA's Failure to Investigate Bad Refs?

As mentioned in my earlier post, disgraced NBA referree Timothy Donaghy has essentially accused the NBA of fixing games. In his sentencing letter (linked in my earlier post), he makes a thinly-veiled reference to game six of the Lakers-Sacramento series in 2002:

Referees A, F, and G were officiating a playoff series between the Team 5 and Team 6 in May of 2002. It was the sixth game of a seven-game series, and a Team 5 victory that night would have ended the series. However, [I] learned from Referee A that Referees A and F wanted to extend the series to seven games. [I] knew Refereees A and F to be "company men," always acting in the interest of the NBA, and that night, it was in the NBA's interest to add another game to the series.

Ralph Nader complained about this game to NBA Commissioner Stern at the time in a letter that can be found here. What he wrote at the time takes on a whole new cast now:

Calls by referees in the NBA are likely to be more subjective than in professional baseball or football. But as the judicious and balanced Washington Post sports columnist Michael Wilbon wrote this Sunday, too many of the calls in the fourth quarter (when the Lakers received 27 foul shots) were "stunningly incorrect," all against Sacramento. After noting that the three referees in Game 6 "are three of the best in the game," he wrote: "I have never seen officiating in a game of consequence as bad as that in Game 6....When Pollard, on his sixth and final foul, didn't as much as touch Shaq. Didn't touch any part of him. You could see it on TV, see it at courtside. It wasn't a foul in any league in the world. And Divac, on his fifth foul, didn't foul Shaq. They weren't subjective or borderline or debatable. And these fouls not only resulted in free throws, they helped disqualify Sacramento's two low-post defenders." And one might add, in a 106-102 Lakers' victory, this officiating took away what would have been a Sacramento series victory in 6 games.

This was not all. The Kobe Bryant elbow in the nose of Mike Bibby, who after lying on the floor groggy, went to the sideline bleeding, was in full view of the referee, who did nothing, prompted many fans to start wondering about what was motivating these officials.

Wilbon discounted any conspiracy theories about the NBA-NBC desire for a Game 7 etc., but unless the NBA orders a review of this game's officiating, perceptions and suspicions, however presently absent any evidence, will abound and lead to more distrust and distaste for the games in general.

Nader makes a point that I agree with: The NBA should not prohibit coaches and players from criticizing referees, on penalty of substantial fines.

Donahy's suggestions, contained in his letter, are less helpful. He suggests "that the league train referees to treat all players equally, regardless of popularity. This policy would help ensure that referees officiate games fairly." Well, yeah, but how are you going to do that?

UPDATE: As pointed out by a VC reader, there's a good, balanced discussion of the issue over at Salon, found here.

Related Posts (on one page):

  1. Is the NBA Trying to Silence Donaghy?
  2. Was Ralph Nader Right About the NBA's Failure to Investigate Bad Refs?
  3. Does the NBA Rig Games?

Does the NBA Rig Games?

Yesterday defendant Tim Donaghy (and former NBA ref) submitted a letter to the federal judge who will sentence him shortly for various federal offenses involving match fixing. While one "bad apple" can exist among referees in any sport, Donaghy's letter makes some allegations that go to the very core of the integrity of the NBA.

For example, Donaghy alleges that certain referees were known as "company men" who always acted in the business interest of the NBA. Accordingly, these referees acted to extend a playoff series because that would be good for the NBA. Similarly, Donaghy stated:

league officials would tell referees that they should withhold calling technical fouls on certain star players because doing so hurt ticket sales and television ratings. . . [T]here were times when a referee supervisor would tell referees that NBA Executive X did not want them to call technical fouls on star players or remove them from the game. In January 2000, Referee D went against these insturctions and ejected a star player in the first quarter of the game. Refereee D later was reprimanded privately by the league for that ejection.

[i]n other instances . . . the manipulation was more subtle. If the NBA wanted a team to succeed, league officials would inform referees that opposing players were getting away with violations. Refreees then would call fouls on certain players, frequently resulting in victory for the opposing teams.

The full text of Donaghy's letter can be found here.

I am frequently skeptical of claims made by defendants to save their own skin shortly before sentencing. But here Donaghy through his attorney is describing what "cooperation" he provided to the FBI (under penalty of perjury) after his indictment.

As someone who lives in small market NBA town (Salt Lake City), I have always wondered whether the Utah Jazz are disfavored when they play a big market team (i.e., the L.A. Lakers). NBA basketball turns so heavily on foul calls, that even a slight emphasis for one team or another can easily make or break a team. In fact, I find it hard to watch NBA basketball any more, because its level of subjectivity approaches that of figuring skating (Was that a charge on Carlos Boozer? Or a blocking foul on Kobe? Do you like Sasha Cohen? Or Michele Kwan?)

One interesting thing about Donaghy's claim is that he lists several specific games in which the NBA favored one team or another. Will anyone go back and watch the videotapes of those games and see whether his claims seem true?


"Attention Anonymous Internet Posters and Bloggers,"

Judge Richard J. McAdams of the California Court of Appeal wrote yesterday, in Tendler v. (UPDATE: originally unpublished, but published July 7, 2008), so I thought I'd pass it along:

Attention anonymous Internet posters and bloggers: this court has good news and bad news for those of you who engage in nontortious discourse [i.e., in this context, speech that isn't libelous -EV]. The good news, announced earlier this year: your message will be protected by the First Amendment and your identity will be protected by the court quashing a third-party subpoena, unless the requesting party can make a prima facie showing of defamation. (Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154 (Krinsky).) The bad news: it may cost you tens of thousands of dollars to preserve your anonymity.

I must concur with my colleagues’ ultimate conclusion that Code of Civil Procedure section 425.16 [the so-called "anti-SLAPP" statute -EV] does not apply to requests for subpoenas, but I write separately for two reasons: First, I cannot agree with the rationale employed by the majority in reaching the conclusion that the statute is inapplicable here [discussion omitted -EV]. Second, I urge the Legislature to consider whether the statute should be expanded to include third-party subpoena requests of this type....

2. The Legislature should give this issue its consideration.

As this court noted in Krinsky, “computer users have encountered a proliferation of chat rooms and websites that allow them to share their views on myriad topics from consumer products to international diplomacy.” (Krinsky, supra, 159 Cal.App.4th at p. 1158.) Given that fact, there is good reason to believe there has been and will continue to be a corresponding increase in requests for subpoenas served on ISPs and other site hosts to disclose the identities of writers. Some requests will be based on a legitimate right to discover the source of libelous statements or business disinformation schemes; but some will be solely for the purpose of silencing a critic by harassment, ostracism, or retaliation.

I urge the Legislature to consider whether section 425.16 as currently written adequately addresses this rapidly expanding arena of public expression and whether the statute leaves this popular forum open to potential “abuse of the judicial process” without the level of protection afforded “causes of action.”


n Guilty Men:

I ran across a cite to this 1997 article (146 U. Penn. L. Rev. 173) by my brother, and decided to do a quick search for how often it has been cited elsewhere.

It turns out that the Westlaw TP-ALL count is 55, plus 6 cites visible on Amazon, and 7 more on Google Scholar -- very good for a piece written by someone who at the time hadn't even gone to law school, and who has only now taken a tenure-track teaching job. Plus it's "One of the best law review articles ever written on any subject" (and, no, that's not just my view, or our mother's). Cool.


On-Line Database of State Employee Salaries. A good idea?

Recently the Denver Post published a searchable database of all state employees in Colorado. (The salary database is part of the Post's on-line Data Center, which publishes a wide variety of useful data.) The database provides the name and the job title of each employee. It does not include home or work addresses, social security numbers, or state employee ID numbers. In response to strong objections from advocates for victims of domestic violence, and other objections related to employee safety, the Post stated that newspapers in other states had published similar databases, and there had never been any safety or violence problems as a result. So here is my bleg: Do VC readers know of any safety of violence problems that have resulted from the publication of a person's name in an on-line database when: 1. the published information was already a public record (but was not previously available on-line), AND the publication did not disclose the person's address?


"France Blocks Online Child Porn, Terrorism, Racism":

AP reports:

France is joining at least five other countries where Internet service providers block access to child pornography and to content linked to terrorism and racial hatred, the French interior minister said today.

The agreement will take effect in September. A blacklist will be compiled based on input from Internet users who flag sites containing offensive material, Interior Minister Michel Alliot-Marie said.

All service providers in France have agreed to block offending sites, he said.

"We can no longer tolerate the sexual exploitation of children in the form of child pornography," Alliot-Marie said. "We have come to an agreement: access to child pornography sites will be blocked in France. Other democracies have done it. France could wait no longer."

Related Posts (on one page):

  1. "France Blocks Online Child Porn, Terrorism, Racism":
  2. ISPs Agree to Block Child Pornography Sites:

SSM in Norway:

Today the Norwegian parliament passed a bill granting gay couples full marriage rights. Previously, Norwegian partners were entitled to enter domestic partnerships that withheld certain rights. Bruce Bawer watched the debate in parliament and sent this dispatch just before the vote:

Today Tor André and I have been sitting at home watching online the final debates in the Norwegian Parliament before they vote on full gay marriage. Everybody knows that the vote will be for gay marriage, so the debate is a formality. Nonetheless it has been gripping and at times extremely moving.

As some of you know, we already have gay partnership in Norway, which gives gay couples all the rights of marriage except for the word itself, adoption rights, and the right to a marriage in the state church. The new law will give us all those things.

Kim Friele, a now elderly lesbian who was the very first person in Norway to come out of the closet and who has made gay rights a lifetime cause, has been sitting in the Parliament gallery during the debates and the camera has cut to her now and then. It's remarkable to think of how far things have come in a lifetime, and inspiring to be reminded how much can be accomplished in a relatively short time (historically speaking) by a movement for justice that begins with only a small group of extraordinarily brave and farsighted people. (Yes, I'm thinking of you, Frank Kameny.)

Bruce also sends along a helpful summary of the Norwegian ”fellesekteskapsloven” – the new common marriage law, as it's called. The summary appeared in today’s issue of the newspaper VG. Bruce's translation is in brackets:

*Homofile skal ha samme rett til å inngå ekteskap som heterofile. [Homosexuals will have the same right to marry as heterosexuals.]

*Homofile ektepar vil få mulighet til å bli vurdert som adoptivforeldre på linje med heterofile. [Homosexual couples will have the opportunity to be considered as adoptive parents along the same lines as heterosexual couples. Note: Until now, adoption by gay individuals was permitted, but not adoption by same-sex couples.]

*Lesbiske par skal ha samme mulighet til å bli vurdert for assistert befruktning på samme måte som heterofile. [Lesbian couples will have the same opportunity to be considered for artificial insemination as heterosexuals. Note: Until now this was illegal.]

*Kirken skal ha rett, men ikke plikt til å vie homofile par. [The church will have the right but not the obligation to marry homosexual couples. Note: This means that individual clergy have the right to refuse to perform same-sex marriages.]

*De som ønsker det, kan få omgjort partnerskap til ekteskap. De som ikke ønsker det, får beholde sin status som registrerte partnere. Det vil ikke være mulig å inngå partnerskap etter at loven trer i kraft. [Those who wish it can have their partnership upgraded to marriage. Those who don't, can keep their status as registered partners. It will not be possible to enter into partnership after the law takes force.]

Norway becomes the sixth country to grant full marriage rights to same-sex couples. Four of the six have done so entirely through legislative action, without prompting from courts.


Sex, Dementia, and Informed Consent:

Slate has a very interesting article on the subject, and last year had another, focused more specifically on the legal issues. The theory that people with sufficient mental disabilities lack the capacity to consent, and therefore sex with them should be illegal, is sensible and probably usually right. But the consequence, when the disability is irreversible, is that they are doomed to live the rest of their lives without sex (or with sex that makes their partners criminals, and makes those who facilitate the sex -- for instance, relatives or nursing home operators -- into criminals as well).

My highly tentative sense is that giving guardians the right to consent on the person's behalf is probably a reasonable approach. We rightly don't generally let parents do this for children, partly because for children we're telling them just to wait a few years, not to remain abstinent for the rest of their lives, and partly because we fear that allowing such parental consent will lead to a considerable number of parents prostituting their children (a tiny fraction, I'm sure, but a considerable number). But these reasons don't apply to the elderly permanently disabled, and at least the first reason doesn't apply to the younger adult permanently disabled. (Pregnancy risks are also not a problem for the elderly permanently disabled.)

In any case, though, it strikes me as an interesting and important subject, and I'm glad Slate is covering it.


Girls Soccer and ACL Injuries

David's recent post about the Euro Soccer Championships got me thinking about a recent cover story in the New York Times Magazine. Written by Michael Sokolove, the article (which can be found here) reports that the ACL injury rate for girls in soccer (and perhaps similar "cutting" sports like basketball) may be as high as eight times the rate for boys.

The article concludes that a sort of political correctness has kept coaches - and parents — from addressing the problem. Sokolove calls for strengthening programs, like the PEP program that is being tested in Southern California girls soccer teams. The exercise routine is basically a knee strengthening program, focusing on squats and core exercises and the like. (Click here for details.)

I am a big fan of girls (and women's) soccer. But the injury rate figures that Sokolove reports are truly troubling. I suspect that the issue of girls sports injuries hasn't received as much attention as it should because of fears that inquiries might be viewed as objecting to girls playing at all.

I hope that the doctors working in this area can confirm that programs like the PEP program work and that soe that fewer young girls who devote their lives to becoming fine atheletes won't have to go through the heartbreak of an ACL tear.

P.S. Sokolove has also just published a book, from which the NY Times piece is excerpted — “Warrior Girls: Protecting Our Daughters Against the Injury Epidemic in Women’s Sports.”


Happy Drug Warrior No More:

Former Republican Representative Bob Barr was once a committed advocate of -- indeed, participant in -- the "war on drugs." One could assume that a change of heart was necessary for him to secure the Libertarian Party nomination for President. He explains why he now opposes the drug war here. An excerpt:

Bob Barr, formerly the War on Drugs loving, Wiccan mocking, Clinton impeaching Republican is the presidential nominee for the Libertarian Party.

Now, you may be asking how this happened and my answer is simple: "The libertarians won."

For more than three decades, the Libertarian Party and small "l" libertarians have done their part to prove to America that liberty is the answer to most of the problems that we face today. Over the past several years, I was one of the many people influenced by this small party.

Whether through the free market or by simply allowing families to make their own decisions regarding the education of their children, libertarians have taught us that liberty does truly work.

In stark contrast, when government attempts to solve our societal problems, it tends to create even more of them, often increasing the size and depth of the original problem. A perfect example of this is the federal War on Drugs.

For years, I served as a federal prosecutor and member of the House of Representatives defending the federal pursuit of the drug prohibition.

Today, I can reflect on my efforts and see no progress in stopping the widespread use of drugs. I'll even argue that America's drug problem is larger today than it was when Richard Nixon first coined the phrase, "War on Drugs," in 1972.

America's drug problem is only compounded by the vast amounts of money directed at this ongoing battle. In 2005, more than $12 billion dollars was spent on federal drug enforcement efforts while another $30 billion was spent to incarcerate non-violent drug offenders.

The result of spending all of those taxpayer's dollars? We now have a huge incarceration tab for non-violent drug offenders and, at most, a 30% interception rate of hard drugs. We are also now plagued with the meth labs that are popping up like poisonous mushrooms across the country.

While it is clear the War on Drugs has been a failure, it is not enough to simply acknowledge that reality. We need to look for solutions that deal with the drug problem without costly and intrusive government agencies, and instead allow for private industry and organizations to put forward solutions that address the real problems.


Ohio Court Rejects Death Penalty Method Upheld in Baze:

Lorain County Court of Common Pleas Judge James Burge held yesterday that use of the three-drug lethal injection "cocktail" considered by the U.S. Supreme Court in Baze v. Rees violates Ohio's lethal injection statute because it does not cause death "quickly and painlessly." As the NYT reports here, the judge ordered the administration of a large dose of a single drug instead. Because he invalidated the lethal injection protocol on state statutory grounds, the judge did not consider the state or federal Constitutional claims asserted in the case.


"Buy and Bail":

A new twist in the foreclosure drama--a consumer gets a mortgage to buy a second home by promising to rent out his first home and using the rental payments to pay the second mortgage. Then, once he buys the second home, he does a walk-away foreclosure on the first home rather than renting it out. The new loan thus is obtained before the foreclosure damages his credit score. From the WSJ story:

Next month, Michelle Augustine plans to walk away from her four-bedroom house in a Sacramento, Calif., subdivision and let the property fall into foreclosure. But before doing so, she hopes to lock in the purchase of another home nearby.

"I can find the same exact house as what I live in right now for half the price," says Ms. Augustine, 44 years old, who runs a child-care service out of her home. She says she soon will be unable to afford her monthly payments, which will jump to $4,000 from $3,300 in August, and she doesn't want to continue to own a home that is now worth $200,000 less than what she paid for it two years ago.

In markets hit hardest by falling home prices and rising foreclosures, lenders and brokers are discovering a new phenomenon: the "buy and bail," in which borrowers with good credit buy a new home -- often at a much lower price -- then bail out of the "upside down" mortgage on their first home.


That loophole currently works like this: Homeowners provide a rental agreement showing that they will rent out their first home, and underwriters allow rental income to cover as much as 75% of the mortgage payments on the first home when determining whether the borrower can make payments on two homes. This allows homeowners to secure a second mortgage that they might not otherwise afford.

The strategy is especially attractive in states with antideficiency laws for purchase-money mortgages, such as California and Arizona. One Nevada real estate broker who specializes in "buy and bail" plans says he is receiving one to two dozen inquiries per week about buy and bail plans.

Fannie Mae is proposing new guidelines to try to restrict the practice.


Updated SCOTUSblog StatPack: The latest ScotusBlog StatPack of the current Supreme Court Term is now available. Some interesting stats from it:

  The percentage of cases in which Chief Justice Roberts has agreed in full with each of the other Justices so far this Term (in order from most agreement to the least) is: 1) Kennedy, 87%; 2) Alito, 81%; 3) Breyer, 73%; 4) Souter, 66%; 5) Ginsburg, 64%; (6)-(7) tie between Stevens and Scalia, 62%; and 8) Thomas, 60%.

  On the other hand, the percentage of cases in which Chief Justice Roberts has agreed as to the result (affirm, reverse, etc.) with other Justices is: 1) Kennedy, 91%; 2) Scalia, 89%; 3) Alito, 87%; 4) Breyer, 84%; (5)-(6) tie between Stevens and Thomas, 79%; (7)-(8) tie between Souter and Ginsburg, 72%.

  The two Justices with the highest rate of agreement in full so far this Term are Roberts and Kennedy, at 87%; The two Justices with the highest rate of disagreement so far this Term are Thomas and Ginsburg, at 40%.

  The Court has reversed in 59% of cases so far this term; that includes 5 of the the 6 cases decided so far from the Ninth Circuit

Tuesday, June 10, 2008


The surprising likely origin of the word "bad" -- "effeminate man." From the Oxford English dictionary (OE = Old English, ME = Middle English):

Prof. Zupitza, with great probability, sees in bad-de (2 syll.) the ME. repr. of OE. bæddel ‘homo utriusque generis, hermaphrodita’ ... and the derivative bædling ‘effeminate fellow, womanish man ...’ applied contemptuously; assuming a later adjectival use, as in yrming, wrecca, and loss of final l as in mycel, muche, lytel, lyte, wencel, wench(e. This perfectly suits the ME. form and sense, and accounts satisfactorily for the want of early written examples. And it is free from the many historical and phonetic difficulties of the derivation proposed by Sarrazin [which ends up relating it to an OE. word meaning ‘forced, oppressed’] .... No other suggestion yet offered is of any importance; the Celtic words sometimes compared are out of the question.

The Random House and Webster's Revised Unabridged echo this; the Online Etymology Dictionary suggests that bæddel and bædling also meant "pederast."

Thanks to Language Log for the pointer. Naturally, I do not mean to imply that I agree with the thinking reflected in the etymology, much like I don't think that Slavs are naturally slaves. I just thought it interesting that such a simple, foundational-seeming term as "bad" appears to stem from attitudes about sex roles.


Tenth Circuit says Lawrence was a rational-basis case:

The past few weeks have provided more evidence of confusion and disagreement in the federal courts about the meaning and implications of Lawrence v. Texas, and specifically whether that decision recognized a fundamental right or merely applied a rational-basis test to the Texas sodomy law.

Today, in Seegmiller v. Laverkin City, a panel of the Tenth Circuit unanimously upheld a city's private oral reprimand of a police officer for an adulterous affair she had with another officer not in her department. The city concluded that the affair interfered with her duties as an officer. The officer then challenged the reprimand on state and federal tort and constitutional grounds citing, in part, Lawrence. The unanimous panel opinion held that Lawrence did not recognize a fundamental right to private adult sexual intimacy, but instead struck down state sodomy laws as irrational.

The Tenth Circuit parted company with (but did not cite) recent opinions by both the First Circuit, which applied a balancing test to a challenge to "Don't Ask, Don't Tell" yesterday based on Lawrence, and with the Ninth Circuit, which last month applied intermediate scrutiny to a DADT challenge based on Lawrence. In so doing, the Tenth Circuit repeated some of the arguments that other courts and Justice Scalia have made about the decision. Like other courts, the panel even cited Justice Scalia's dissent as an authoritative guide to the meaning of Justice Kennedy's majority opinion in Lawrence:

One of the Court’s most recent opinions concerning substantive due process also counsels against finding a broad-based fundamental right to engage in private sexual conduct. In Lawrence v. Texas, 539 U.S. 558 (2003), the Court struck down a Texas law that criminalized homosexual sodomy. But nowhere in Lawrence does the Court describe the right at issue in that case as a fundamental right or a fundamental liberty interest. It instead applied rational basis review to the law and found it lacking. Lawrence, 539 U.S. at 578 (stating the Texas statute in question “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual”); see also id. at 594 (Scalia, J., dissenting) (noting that majority applied “rational basis” test to overturn statute). As one recent decision aptly noted, the Court declined “to recognize a fundamental right to sexual privacy . . . where petitioners and amici expressly invited the [C]ourt to do so.” Williams, 378 F.3d at 1236.

Nor did the Lawrence Court conclude that an even more general right to engage in private sexual conduct would be a fundamental right. See id.; see also Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 745 n.32 (5th Cir. 2008) (explaining “Lawrence did not categorize the right to sexual privacy as a fundamental right”); Muth v. Frank, 412 F.3d 808, 817 (7th Cir. 2005) (holding “Lawrence . . . did not announce . . . a fundamental right, protected by the Constitution, for adults to engage in all manner of consensual sexual conduct”); Lofton v. Sec. of Dept. of Children and Family Servs., 358 F.3d 804, 817 (11th Cir. 2004) (“We conclude that it is a strained and ultimately incorrect reading of Lawrence to interpret it to announce a new fundamental right.”). Indeed, as we noted above the Court resolved the constitutionality of Texas’s sodomy law in Lawrence by applying the rational basis test, rather than heightened scrutiny. See Lawrence, 539 U.S. at 578.

Op. at 18-19.

For reasons both Eugene and I have given elsewhere (see posts here and here), I think these arguments about the meaning of Lawrence are unconvincing. The context in which the Lawrence court placed its discussion of the private sexual conduct at issue, linking the conduct to the Court's fundamental right to privacy, contraception, and abortion cases, indicates to me that the Court believed it was dealing with a fundamental right. As I argued in the Minnesota Law Review shortly after the decision, on rational basis review, the Texas sodomy law would probably have been upheld, foolish and demeaning as it was on policy grounds. So it seems to me that something more than rational-basis review was applied. Additionally, the Court's failure to mention a standard of scrutiny or to use talismanic words that fit neatly into the Court's earlier opinions, while frustrating to lower courts and to legislatures, is hardly unprecedented. But it has to be admitted that other interpretations of Lawrence are plausible, including the one the Tenth Circuit adopted today.

It may be that state and federal governments, in their capacity as managers of large numbers of employees, should be given considerable leeway in making employment decisions related to work performance. Perhaps Lawrence should be largely limited to protecting from state law infrigement the private sexual lives of private citizens. Perhaps, as in other constitutional contexts, the government should be free to limit its own employees' behavior in ways that would be unacceptable if applied to a private citizen. As with the military context in the recent challenges to DADT, the public employment context in the Tenth Circuit case may make Seegmiller special, requiring more-than-usual deference to state decisionmaking.

Those considerations aside, the Tenth Circuit opinion adds to the need for some guidance from the Supreme Court. This isn't news to most of us who've struggled to understand Justice Kennedy's opinion, but it is now clear that nothing about Lawrence is clear. One group of courts believes that Lawrence was a rational-basis case; another group believes Lawrence was somewhere between rational basis and strict scrutiny; and a few courts and some commentators suggest it was a fundamental-right case. There is a real and growing circuit split on this basic doctrinal issue with potential consequences to a range of governmental policies. Whatever one thinks of the result in Lawrence, the Supreme Court has created a mess that only it will be able to clean up.

(Thanks to reader Elliot Scott for pointing me to the decision.)


[James Q. Wilson, guest-blogging, June 10, 2008 at 4:18pm] Trackbacks
Can I Be a Meaningful Blogger?

A lot of readers have suggested that I am not a helpful blogger because I refer people to other studies for data to support my arguments. These critics are probably right. Were I devoted to blogging full time, I would quote all the data and summarize all of the studies, thereby getting nothing else done. I had assumed when I started my blog messages that people would pause, think, and look up facts. A few have, but most seem to have opinions they like to express quickly. There is nothing wrong with this, except that it doesn't advance knowledge. Let me join the opinion parade by offering a few of my own: This country imprisons too many people on drug charges with little observable effect. A better solution can be found in Hawaii, where a judge uses his powers to keep drug users in treatment programs (it's called Project Hope; look it up). The costs of crime are hard to measure (so are the costs of confinement). The reader who does not want to drive five miles to find the book, Prison State, that discusses this in detail is wasting my time and his. It is not hard to study deterring crime, but I can't imagine trying to teach someone in a blog how to do a regression analysis. I wish I could do that, but it would take time, and blog commenters seem not to have much time.

Now for a few more facts, but I warn you that to believe my assertions you will actually have to go out and read something. Intensive Probation: This is a good idea, but so far the studies of it have not suggested it lowers the crime rate. I wish it did, because it is cheaper than prison. The chief study, done at RAND, compared probationers under intensive supervision with similar ones not under such control. There as no difference in their crime rates while under supervision. There are two possible explanations for this: Either there was no difference in crime rates, or those under intensive supervision had more crimes noticed by their probation officers.

The effect of prison on crime rates: The chief study is by William Spelman and appears in the book, The Crime Drop in America, edited by Alfred Blumstein and Joel Wallman (2000).

The problem of the mentally ill in prison: This is a very large problem, caused in part by the dramatic drop in the number of mentally ill people in mental institutions. De-institutionalizing the mentally ill may have been a good idea, but the price we pay for it is to have a big increased of the mentally ill in prison. I would prefer that they be in mental health care institutions, but our society does not let that happen.

Abortion and crime rates: Steven Levitt is one of the authors of the study claiming, on the basis of a study of crime rates in five states where abortion was legal before Roe v. Wade and the 47 states where it became legal after Roe v. Wade, that abortion reduced the number of "unwanted children" and hence helped lower the crime rate. Levitt may be right, but to show that it is first necessary to count abortions in many states where, though it was illegal before Roe, occurred anyway to protect the health of the mother, and to control for other factors that affect the crime besides the number of "unwanted" children.


Stop All "Disparaging Remarks About Gays and Homosexuals,"

as well as against the university professor and self-described "activis[t] for social justice issues" who filed a complaint against you: That's what the Alberta Human Rights and Citizenship Commission ordered Stephen Boisson and The Concerned Christian Coalition Inc. to do in Lund v. Boissoin. The Commission had earlier found Boissoin and the Coalition guilty of "causing to be published in the Red Deer Advocate (before the public), a publication in which it was likely to expose homosexuals to hatred or contempt because of their sexual orientation"; I oppose bans on such speech that exposes groups "to hatred or contempt," but at least on their face they seem to be limited to relatively harsh criticisms that tend to arouse hatred or contempt and not mere disagreement or disapproval.

But in reaction to this, the Commission went beyond imposing financial liability for speech likely to arouse hatred or contempt, and ordering that Boissoin stop engaging in speech likely to arouse hatred or contempt. Rather, it expressly ordered that Boissoin apologize, and

That Mr. Boissoin and The Concerned Christian Coalition Inc. shall cease publishing in newspapers, by email, on the radio, in public speeches, or on the internet, in future, disparaging remarks about gays and homosexuals. Further, they shall not and are prohibited from making disparaging remarks in the future about Dr. Lund or Dr. Lund’s witnesses relating to their involvement in this complaint. Further, all disparaging remarks versus homosexuals are directed to be removed from current web sites and publications of Mr. Boissoin and The Concerned Christian Coalition Inc.

This is a breathtakingly broad prohibition, which extends far beyond the terms of the (already troubling) statute. Boissoin and his group aren't allowed to saying anything "disparaging" about homosexuals, which presumably would even extend to statements such as "homosexuals are acting sinfully" or "The Bible, which I believe should be our moral guide, condemns homosexuality."

Nor can they say anything disparaging (not just anything false or threatening, but anything disparaging) about Prof. Darren E. Lund of the University of Calgary Faculty of Education, a self-described "activis[t]" for "social justice issues in schools and communities," and his witnesses, who include Prof. Kevin Alderson of the University of Calgary, and Douglas Robert Jones, a recently retired Calgary City Police Service officer who has been Liaison to the GLBT Community. I would have thought that activist university professors were proper subjects for discussion, criticism, and even disparagement — but the Alberta Human Rights and Citizenship Commission forbids Mr. Boissoin and the Concerned Christian Coalition from engaging in such speech.

Recall that the Supreme Court of Canada originally upheld the Canadian "hate speech" bans precisely because

[T]he phrase 'hatred or contempt', are sufficiently precise and narrow to limit its impact to those expressive activities which are repugnant to Parliament's objective. The phrase 'hatred or contempt' in the context of s. 13(1) refers only to unusually strong and deep‑felt emotions of detestation, calumny and vilification and, as long as human rights tribunals continue to be well aware of the purpose of s. 13(1) and pay heed to the ardent and extreme nature of feeling described in that phrase, there is little danger that subjective opinion as to offensiveness will supplant the proper meaning of the section.

Well, it looks like the Alberta Human Rights Commission is no longer "pay[ing] heed" to the limits imposed by the law. Unfortunate — but not surprising.


ISPs Agree to Block Child Pornography Sites: The Washington Post reports:
Some of the nation's largest Internet service providers have agreed to block connections to newsgroups and Web sites that offer child pornography, according to an announcement today by the New York State Attorney General's Office.

The move follows an eight-month child pornography investigation. The probe turned up 88 newsgroups involving 11,390 sexually lewd photos featuring prepubescent children. Among them were photos of children being raped and sexual activity involving animals, according to state Attorney General Andrew M. Cuomo.
The announcement over at the New York AG's website adds some details:
[T]he Attorney General’s office developed a new system for identifying online content that contains child pornography. Every online picture has a unique “Hash Value” that, once identified and collected, can be used to digitally match the same image anywhere else it is distributed. By building a library of the Hash Values for images identified as being child pornography, the Attorney General’s investigators were able to filter through tens of thousands of online files at a time, speedily identifying which Internet Service Providers were providing access to child pornography images.

In addition to eliminating the Newsgroups, the ISPs have also agreed to purge their servers of all child pornography websites identified by the National Center for Missing & Exploited Children (“NCMEC”). NCMEC regularly reviews and updates its registry of these illegal sites to ensure the list reflects the current presence of such websites on the Internet.
  When Pennsylvania tried to do something somewhat similar -- albeit with court orders rather than a voluntary agreement -- Pennsylvania's effort was struck down as unconstitutional. I blogged about Pennsylvania law here in 2003, and the law was invalidated in CDT v. Pappert, 337 F. Supp.2d 606 (E.D. Pa. 2004).

  New York's effort is different in that the state has reached an agreement with the ISPs; the ISPs have agreed to "voluntarily" block the connections rather than be forced to do so. Off the top of my head, I don't know whether customers of these ISPs could still challenge the agreement on some of the constitutional grounds raised in the Pennsylvania case. I would think not, but I don't know.

Related Posts (on one page):

  1. "France Blocks Online Child Porn, Terrorism, Racism":
  2. ISPs Agree to Block Child Pornography Sites:

Article III, Congress, and the Texarkana Courthouse

When a comment on the Texarkana thread pointed to a story about the Texarkana federal courthouse and a special federal statute that would let cases in the courthouse be heard on either side of the state line, I remembered Brian Kalt's fascinating The Perfect Crime -- the rare law review article that has inspired a mystery novel. Brian Kalt, naturally, had the same thought, but based on actual knowledge of the legal issue, and was kind enough to pass it along:

Your Texarkana post last week caused Ira Matesky to contact me with an interesting constitutional issue that the Texarkana Courthouse presents.

I had been corresponding with Mr. Matesky about my new piece, Tabloid Constitutionalism. The piece is a case study of the near-comic fecklessness of Congress and the courts in dealing with a loophole I identified (in which people can arguably commit crimes with impunity in a small corner of Idaho).

In Tabloid Constitutionalism, I had to respond to people who said that Congress had better things to worry about than my little issue (short answer: fair enough, but they aren't fixing those other things either). The Texarkana story adds a different sort of data point to the field. Here, Congress went out of its way to act, addressing a non-existent problem yet failing to solve it.

As this article explains, the federal courthouse in Texarkana straddles the state line. Part of the building is in the Eastern District of Texas and the Fifth Circuit, while part is in the Western District of Arkansas and the Eighth Circuit. It's a fun little anomaly, and things seem to work pretty well. Here's the problem (emphasis added):

The temptation is to borrow a courtroom from the other district. But does that mean a Texas case could wind up being heard in an Arkansas courtroom?

"It's usually not a problem with civil cases, with the consent of the parties," said [Judge David] Folsom. "But we'd be concerned about the change with criminal cases, or in the rare civil case where the parties might object to their case being heard in another state."

To settle that question, a provision in the Federal Courts Improvement Bill of 2004 would allow the Western District of Arkansas and the Eastern District of Texas to hold court anywhere within the federal courthouse.

Sure enough, Congress enacted the Federal Courts Improvement Act of 2004 (FCIA), § 103 of which declared that cases in Texarkana in either district/state could be heard anywhere in the courthouse. It does not limit itself to civil cases.

The problem is that Article III, § 2, cl. 3 states that federal criminal trials "shall be held in the State where the said Crimes shall have been committed." So if you commit a crime in Texas, you have a constitutional right to have your trial in Texas. Not "Texas or really close to Texas," just "Texas."

So what does the FCIA accomplish in criminal cases? Let's take a hypothetical scenario. Say I get arrested in nearby Atlanta, TX for RICO violations stemming from my unhealthy obsession with local talk-radio station KALT (1610 on your AM dial). The courtrooms on the Texas side of the Texarkana courthouse are unavailable when my trial date rolls around, so they assign me to a courtroom on the Arkansas side, citing the FCIA.

The chances of this being a problem seem pretty slim: I might plead guilty, or I might go to trial but waive my Article III right to be tried in Texas. But if either of those things happened, then the prosecutors would be safe even without the FCIA. I could have pleaded guilty or waived my right just as easily before the Act passed. The FCIA changes nothing in the criminal context.

On the other side, I might object. I have a constitutional right to be tried in Texas, after all, and as the original post made clear to anyone who didn't know it before, Arkansas definitely is not Texas. If I object to the application of the FCIA in my case, what can the prosecutor say? The Act can't amend Article III, after all. There is no question that the trial is on the wrong side of the state line. I'd have a decent argument that the trial and the FCIA are simply unconstitutional.

Maybe I'd lose. Perhaps the prosecutor could argue that this is a de minimis violation; this is literally as near to compliance with Article III as a wrong-state trial can be. But would DOJ really litigate the issue and risk losing a criminal case over this? One would hope that they would play it safe and just switch courtrooms if I objected. But if they do that, then what was the point of the FCIA? And conversely, if DOJ fought the issue and won -- that is, if the court refused to apply Article III so strictly -- wouldn't DOJ have been able to get the same result even without the FCIA? It's hard to imagine a court saying: "This wrong-state trial would ordinarily be unconstitutional. Because Congress encouraged it in this statute, however, it is now OK."

In other words, there was a scheduling problem with criminal trials at the federal courthouse in Texarkana. A solution worked its way through the labyrinthine legislative process; Congress found out about the problem and took decisive action. The solution didn't actually affect the problem at all, but hey, at least it was decisive.


One - Nil:

So Euro 2008, the European soccer championships – the world’s second-greatest sporting event – has begun, as some of you, at least, are aware. Let’s skip over the usual soccer meta-discussion, which we’ve had a number of times here before: Is soccer the world’s greatest sport? Will Americans will ever become true soccer-philes on the order of the British, or the Argentines, or the Malaysians, or the Ghanaians, or damned near everyone else on the planet (except, oddly the South Asians)? Why do people care as much as they obviously do about the fate of their national soccer teams? Etc. On to the games . . .

Switzerland and Austria, the co-hosts this year, both lost their opening games, 1-0 – but what a difference between the two! The Swiss come into the tournament with pretty high hopes: they’ve got a young, untested team, but with a lot of talent, and they’ve played well in the run up to the tournament. They’re in a 4-team group with Portugal, the Czech Republic, and Turkey – it won’t be easy getting through the group stage to the quarterfinals (only the top 2 out of each group of 4 advance to the quarterfinals), but it’s certainly not out of the question. Though the Swiss have never gotten through to the quarters before, there’s never been a Euro championship where a host nation did not advance at least to the quarterfinals, and they have good reason to hope and believe that this is their year. It’s the opening game of the tournament, in Basel, against the Czechs, and the home crowd is pumped. The Swiss thoroughly and completely outplay the Czechs, creating chance after chance but not getting the ball into the net; the Czechs play dispiritedly, they get one shot on goal the whole game, and it goes in. On top of which, Switzerland’s top goal-scorer, Alexander Frie, wrenches his knee and is taken out of the game; as he is being helped to the locker room, TV pictures show him crying uncontrollably, just like a kid who’s just been taken out of the soccer tournament he’s been looking forward to pretty much his whole life . . .

So the Swiss are pretty bummed. The Austrians, on the other hand, are almost jubilant after their 1-0 loss to the Croatians. The Austrian team, it is generally believed, stinks – there’s no chance, zero, that Austria would have made it into the tournament at all had they not, like Switzerland, got the “automatic bid” that goes to the host nation(s). When Austria-Switzerland were announced as the hosts many years ago, I suspect most Austrians were delighted at the prospect that their national team would be placed automatically into the tournament field, without the worry and suspense (and possible failure) of having to go through the qualifying rounds to get there. Now, however, they see the dark side of automatic qualification – if you really stink, and you’re up against the best teams Europe has to offer, the potential for serious humiliation is a real one. Losing 6-0, or 7-1, doesn’t happen often in soccer, but it does happen; it’s never pleasant, and it’s particularly gruesome if it happens in front of 50,000 of your home fans. . . . That’s what’s going through everyone’s mind as the game begins – and three minutes in, there’s a penalty kick awarded to the Croatians, they score, and it’s already 1-0. Oh, the horror!!

But it doesn’t happen – the Austrians pull themselves together, play incredibly well for the rest of the 87 minutes, keep the Croatians away from goal and mount a number of serious attacks of their own. The crowd, having prepared for the worst, is deliriously happy, and the team leaves the field to a rapturous ovation.

And on top of all that, there’s Germany-Poland. The Poles and the Germans have, shall we say, strong feelings about each other. The Poles have never, in 14 previous meetings, beaten the Germans – 10 losses, 4 draws. The Germans score mid-way through the first half – but again, the Poles storm back, launching attack after attack on the German goal and coming heart-breakingly close on a couple of occasions to the equalizer. You have a feeling it’s coming any minute now, . . . and then Germany hits them on the counter-attack and scores goal #2 towards the end of the 2d half and it’s all over. And get this: both German goals are scored by striker Lucas Podolski – now a naturalized German citizen, but born, as you might guess from his name, in Poland. Cruelty, thy name is soccer.


'All Worldview, No Evidence":

Ron Bailey flunks Ben Stein. He find's Stein's movie Expelled "free of scientific content: It gives no scientific evidence against biological evolution and none for “intelligent design.” Instead, host Ben Stein spends most of the movie asking various proponents of evolutionary theory for their religious views." But it gets even worse:

The most egregious part of the movie is the attempt to link evolution with Communism and Nazism. The claim that Communism was motivated by Darwin is just silly. Official Soviet biological doctrine was Lysenkoism, and Russian Darwinists were denounced as “Trotskyite agents of international fascism” and thrown into the Gulag for their scientific sins.

And Nazism? In the film, the mathematician David Berlinski says, “Darwinism is not a sufficient condition for a phenomenon like Nazism, but I think it was a necessary one.” Berlinski is suggesting that scientific materialism undermines the notion that human beings occupy a special place in the universe. If humans aren’t special, goes this line of thinking, then morals don’t apply.

But people through the millennia have found all sorts of justifications for murdering each other, including plunder, nationalism, and, yes, religion. Meanwhile, insights from evolutionary psychology are helping us understand how our in-group/out-group dynamics contribute to our disturbing capacity for racism, xenophobia, genocide, and warfare. The field also offers new ideas about how human morality developed, including our capacities for cooperation, love, and tolerance.

At one point in the film, the science studies gadfly Steve Fuller archly poses the question: Which comes first, worldview or evidence? Fuller aims his question at the proponents of evolutionary biology. As this dreary film itself makes it painfully clear, the question is far more relevant to the supporters of intelligent design.

I'm glad Ron sat through the movie so we don't have to.


Judicial Nominees By the Numbers:

A reader who follows judicial nominations quite closely sends along the follwing comment on my recent judicial nominations post:

In some respects, your numbers are technically correct, in that you have the number of confirmed divided by the number of nominations. But using nominations [as the CRS report did], instead of nominees, as the denominator in any calculation when evaluating the percentage of people appointed can lead to misleading calculations if you're not precise about the language you use. President Clinton, for the appellate courts, made 115 nominations, of which 65 were confirmed, hence the 56.5% number. But those 115 nominations were of 90 nominees (25 were renominations of people who had already been nominated), so the more accurate calculation for President Clinton, if you're talking about nominees, as you do in the last sentence quoted above, would be 65 confirmations of 90 nominees, or 72.2%. The comparable numbers, for the courts of appeals, for Presidents Carter, Reagan, and H.W. Bush, are 93.3%, 88.3%, and 79.2%, respectively. For Carter, Reagan, and H.W. Bush, the differences are smaller, in part because there were fewer returns by the Senate and thus fewer renominations.

For President George W. Bush, the Senate has 59 confirmed of 82 nominees, or 72.0%. The nomination-nominee numbers are markedly different for President Bush because there have been many more returns, and therefore many more renominations, in this administration than in previous administrations. Part of this comes from all pending nominations being returned in 2001 after the Senate control flipped from Republican to Democratic, part of it has come from long-running stretches of nomination, return, and renomination of the same person. Terrence Boyle was nominated to the Fourth Circuit six times by the current President.

I suspect your hand calculations for the current President may conflate nominations and nominees in the same statistic and, as a result, may confuse your readers. Without seeing how you got the 67% and 56% numbers, I can't be sure. By the metric of nominations, the Senate has confirmed 59 of 150 nominations to the courts of appeals, or 39.3%. But the 72.0% number looks at nominees, not nominations, and may better reflect the Senate's record on this issue, though, of course, it doesn't fully account for the fact that some individuals have had to go through multiple nominations before being confirmed by the Senate.

These statistics take as their unit of analysis the "President-person", so Roger Gregory and Helene White are 2 of the 25 unconfirmed Clinton nominees; Gregory is also one of the 59 confirmed W. Bush nominees, and Helene White is, for now, also one of the 23 unconfirmed W. Bush nominees.

The reader is correct that I was not sufficiently attentive to the nominee/nomination distinction, and I thank him for the note.


"An Animal to Save the World":

Lawyers at the Center for Biological Diversity spent years looking for "an animal to save the world." Their criteria: A charismatic animal dependent upon arctic ice habitat threatened by global warming that could be listed under the Endangered Species Act. The Kittlitz's murrelet didn't cut it, nor did an arctic spider or Carribean coral species. The polar bear, however, is another story. This year the polar bear joined the nearly 2,000 species listed as threatened or endangered under the ESA, and instantly became the new mascot for global warming policy. The question now is whether the polar bear will be more than just a symbol.

I discussed this issue yesterday on a panel at AEI with Bryan Arroyo, assistant director for the Endangered Species Program at the U.S. Fish and Wildlife Service. If a video or transcript of the event become available, I will post a link.

Arroyo and I agreed on many of the legal implications of the polar bear listing. For instance, listing the polar bear as "threatened" triggers its classification as a "depleted species" under the Marine Mammal Protection Act (MMPA). This means an immediate ban on the importation of sport-hunting trophies from Canada. Why does this matter? Because sport-hunting (like it or not) is an important source of revenue for community-based conservation programs. Such programs have been important for polar bear conservation in Canada, and will become ever more important if the loss of arctic sea ice habitat is a big a threat to polar bear survival as many fear.

We also agreed that some conservative complaints are overstated. There is little risk that the federal government, or even a wayward federal judge, will hold that some power plant or other large greenhouse gas emitter is guilty of "taking" polar bears in violation of the ESA. As broad as the ESA's take prohibition may be, it has never been interpreted to reach such attenuated private harm.

The interesting question is what the polar bear listing will mean for projects that require a federal permit. Under Section 7 of the ESA, the federal government must "insure" that any actions authorized, funded, or permitted by any federal agency do not jeopardize an endangered or threatened species or destroy critical habitat for such a species. In my opinion, this means that the federal government will have a very difficult time approving new oil and gas leases in the arctic, and ESA consultation could well be required for federal projects and permits that could produce increased GHG emissions. Such actions will be allowed, in all likelihood, but simply requiring consultation can increase the time and expense of such activities.

Arroyo explained the administration's position that consultation should not be required for permitted activities that will increase GHG emissions, and outlined how the Interior Department has sought to "harmonize" polar bear protection with existing regulations under the MMPA. But he agreed that there is likely to be a substantial amount of litigation challenging administration policy, and that such litigation could have a substantial effect. If nothing else, it will devote FWS staff and resources away from other activities (e.g. actual conservation efforts).

The polar bear listing, and consequent regulatory restrictions, will be the subject of court battles for many years. CBD is already challenging the Interior Department's efforts to limit the listing's fallout and failure to designate critical habitat. Alaska Governor Sarah Palin also announced her intent to challenge the validity of the listing. Whatever the outcome of this litigation, one thing is certain: The listing will do very little to conserve polar bear populations. Even if the listing spurs greater action on climate change, it will be too little, too late to address the projected loss of sea ice of the next few decades and (as I note above) it could complicate other conservation efforts. The polar bear may be an "animal to save the world," but the Endangered Species Act will do little save the bear.


Why Are We Giving Nuke Tech to the Saudis?

Representative Ed Markey wants to know -- and so do I (though I suspect he has just a bit more pull).

Last month, while the American people were becoming the personal ATMs of the Organization of the Petroleum Exporting Countries, Secretary of State Condoleezza Rice was in Saudi Arabia signing away an even more valuable gift: nuclear technology. In a ceremony little-noticed in this country, Ms. Rice volunteered the U.S. to assist Saudi Arabia in developing nuclear reactors, training nuclear engineers, and constructing nuclear infrastructure. While oil breaks records at $130 per barrel or more, the American consumer is footing the bill for Saudi Arabia's nuclear ambitions.

Not only do the Saudis have no need for nuclear power, it seems quite unwise to feed another Middle Eastern state's nuclear ambitions. But, hey, they're our friends, right?


Monday, June 9, 2008

"Universities should not be in the social justice business":

So says Stanley Fish, and of course he is correct. I wish someone would explain this to those who run Brandeis University, my alma mater.

It was bad enough that President Jehuda Reinharz added "social justice" to Brandeis's mission statement (though this language now seems to have been moved to Brandeis's official "Diversity Statement", which states that "Brandeis University considers social justice central to its mission as a nonsectarian university founded by members of the American Jewish community." It's also one of Brandeis's "Four Pillars," though here "social justice" is used interchangeably with "social action," an even more clearly inappropriate mission for a university to undertake.) At least there was still some "plausible deniability" that Brandeis's oft-proclaimed "commitment to social justice" should be interpreted as having political or ideological connotations.

In fact, however, it seems clear that Brandeis wishes to use its professed commitment to "social justice" to attract donations from left-liberal alumni and other left-liberal sources. The most recent brochure from the Brandeis development office has a message from Nancy Winship, Senior Vice President of Institutional Advancement, in which she remarks that "Today's Brandeis students will become tomorrow's enlightened leaders--individuals who will operate socially responsible businesses [just running a successful business that employs many people and provides wanted goods and services apparently is not "enlightened"], pursue ground-breaking medical breakthroughs, head progressive national governments, and serve in life-change non-profit organizations." I suppose few Brandeis alums, myself included, would be proud of alumni who run regressive national governments, but surely Ms. Winship is well aware that "progressive" is a synonym for American "liberals," or what in European terms would be Social Democrats or Greens.

Elsewhere in the same brochure, we learn from Mia Goldwasser '10 that "one theme I see arise often in my coursework is social justice, a central part of the Brandeis mission. Whether it's through my work on campus with Students for Environmental Action or volunteering in a local elementary school, this commitment to helping the less fortunate continues to serve as a guiding force."

In short, Brandeis is, officially, in the social justice business. At best, this is just p.r. talk, and has no effect on academic freedom in the university, and is merely embarrassing. At worst, Brandeis in fact institutionally favors certain ideological views over others, and has no claim to be a university devoted to the pursuit of truth regardless of ideological implications.

Many Brandeis professors have been quick to condemn the administration when they think that concerns over donor relations have led Brandeis to implicitly disavow academic neutrality with regard to Israel. I'm still waiting for any of these professors to challenge Brandeis's far more blatant and overt commitment to a left-liberal "social justice" agenda.

UPDATE: Reader HLSLibertarian comments:

No one has suggested that Brandeis shouldn't have the right to promote any political agenda it chooses. My qualm, and I imagine Prof. Bernstein's as well, is that Brandeis holds itself out [ed: selectively] to be an institution without such an agenda.

I'm a fairly recent alum, and was disgusted at the pervasiveness of a political agenda in many departments. Brandeis is churning out clueless grads who are completely unaware that serious arguments exist for positions on the right. Brandeis teaches them that there is only Enlightenment and Ignorance. They graduate ill-equipped to have a normal conversation with a Republican, much less try to convince one of anything.


U.S. Senate Discovers The Problems With Big Government: At least when it comes to the Senate's government-run restaurants.

Law Review Shenanigans, This Time from a Faculty-Edited Journal:

My colleague Stephen Bainbridge (Business Associations Blog) reports on a faculty edited journal that basically accepted the piece and then in fairly short order withdrew the acceptance, apparently with no justification, offering "scrambled communications" as the only excuse. (I describe the first e-mail as an acceptance because of the statement, "I look forward to hearing back from you at your convenience with a revised final draft that I could then send along to [the chief editor] for conversion into galley proofs.") Not the best behavior, it seems to me.

Related Posts (on one page):

  1. More on "Law Review Shenanigans":
  2. Law Review Shenanigans, This Time from a Faculty-Edited Journal:

[James Q. Wilson, guest-blogging, June 9, 2008 at 5:40pm] Trackbacks
The Costs and Benefits of Prison:

Several readers have said that prison would be fine if it did not cost so much. They typically quote the figure of $25,000 per year per inmate. Nobody knows if that is the right number, but let us assume that it is. Anne Morrison Piehl, Bert Useem, and others have estimated the costs of crime. Their calculations, presented in the book Prison State, shows that property and assault crimes committed by the median (50th percentile) offender in Wisconsin, New Jersey, New York, Arizona, and New Mexico range from $26,000 to $46,000. It would seem that prison pays: crimes avoided exceed the annual cost per inmate of locking them up.


[James Q. Wilson, guest-blogging, June 9, 2008 at 5:26pm] Trackbacks
Drug offenders in prison:

Some readers have asked whether the population of American prisons is large because we lock up so many drug users. It is true that the proportion of inmates described as drug offenders has gone up dramatically, but as Jonathan Caulkins and Mark Kleiman point in their essay in Understanding America, very few are in prison because of drug possession. Many are either major dealers or plead down to a drug possession charge in order to avoid being convicted of a more serious offense. There are more than one million arrests every year for drug possession, but very of them result in prison or jail time. Cannabis possession, when it is punished at all, is typically with a fine or probation.


What Next for Don't Ask, Don't Tell?

Recall that last month, the Ninth Circuit parted from several other federal courts, and held that Don't Ask, Don't Tell might be unconstitutional. It then concluded that the case should be remanded to the district court, "to develop the [factual] record" as to whether Don't Ask, Don't Tell "significantly furthers the government's interest [in 'unit cohesion' and the like] and whether less intrusive means would achieve substantially the government's interest."

It wasn't clear, though, that -- even if the Ninth Circuit refused to rehear the case en banc -- either the government or the challengers would ask the Supreme Court to hear the case (the government asking for Don't Ask, Don't Tell to be upheld even without further district court hearings, and the challengers asking that it be invalidated even without further district court hearings). Nor is it clear that the Supreme Court would agree to hear the case even if it was asked to do so, given that the case had been remanded to the trial court. The Supreme Court tells to be reluctant to consider lower court cases, even federal court cases, when there's no final judgment below, though that's not a categorical rule.

The First Circuit decision may affect this analysis, but it's not clear. (I assume for purposes of this discussion that the First Circuit refuses to rehear the case en banc.) The challengers will be free to petition for certiorari, and there is a final decision here, so that procedural obstacle isn't present here the way it is in the Ninth Circuit. What's more, there is a circuit split -- several circuits have upheld Don't Ask, Don't Tell, but the Ninth Circuit adopted different reasoning that has led to a different intermediate result (remanding to the district court instead of upholding the policy).

On the other hand, the split is "soft," in that the bottom line even in the Ninth Circuit may end up being the same as in the other circuits. And the factfinding in district court on remand from the Ninth Circuit may well illuminate the issue, so that there might be good reason for the Court to wait.

The most important factor here, I think, will be whether the Administration files a brief in support of the certiorari petition, arguing that the Court should hear the case, though of course they would want the Court to affirm rather than reverse. If the Administration so argues, perhaps on the grounds that the government shouldn't be burdened with defending the case further in the Ninth Circuit (and perhaps based on the unstated concern that the longer it takes for the issue to reach the Court, the more likely it will be that the Court's personnel will change in a way that favors the challengers), then I expect the Court will be inclined to agree. The Executive Branch's views on whether to grant certiorari in a case are generally quite influential.

On the other hand, if the Administration argues that the Court should wait until after the factfinding in district court on remand from the Ninth Circuit is done, and the Ninth Circuit has another chance to review the case, then the Court would likely deny certiorari and leave the matter for a later day. That, at least, is my tentative sense of the matter.


First Circuit upholds DADT:

Disagreeing with the recent Ninth Circuit decision applying intermediate scrutiny to the military's exclusion of gay personnel under "Don't Ask, Don't Tell," a 2-1 decision from the First Circuit today rejected a facial and as-applied challenge to DADT. The First Circuit's decision is available here. The court rejected due process, equal protection, and First Amendment challenges to the law (the dissent disagreed only on the First Amendment issue).

A critical question in the case was how to understand the effect of Lawrence v. Texas, the Supreme Court's notoriously opaque decision from 2003 striking down state sodomy laws under the Due Process Clause. Some commentators, like Eugene and me, have understood Lawrence to recognize a fundamental right of private adult sexual intimacy. Others, like Justice Scalia in his dissent in the case, believe the Court applied only rational-basis review. A third group of scholars, like Nan Hunter and Paul Secunda, think Lawrence broke with the usual bifurcated approach to substantive due-process rights and is charting a new course.

The First Circuit, citing Hunter's work, read Lawrence to protect a "liberty interest" for adults to engage in sexual intimacy that "defies either the strict scrutiny or rational basis label." Op. at 18. Thus, it rejected Justice Scalia's, and a number of courts', interpretations of Lawrence. But it also rejected the idea that strict scrutiny applies, as would be the case if the Supreme Court had recognized an old-fashioned fundamental right. Instead, the First Circuit concluded that Lawrence "balanced" the state's asserted interest "against the degree of intrusion into the petitioner's private sexual life." Id. at 28.

The right recognized in Lawrence, said the First Circuit, is only the "narrow" one to be free of intrusion into one's sexual life in the home and in one's private life. On the other hand, the government's interest, recognized by Congress when it adopted DADT as a federal statute, is of the highest order since it involves legislative judgments about military needs that receive substantial deference from courts. "Balancing" the relatively weak individual liberty interest of a service member against the relatively strong military interest of the state, the First Circuit concluded the government should prevail.

I'll bracket the question whether, under any standard of review, the federal courts should set aside Congress' conclusion about the need for DADT in the special context of the military. Instead, I'll focus on a different issue.

The First Circuit's decision, and to some extent the Ninth Circuit's less deferential decision on the same issue, illustrates how amorphous and unpredictable balancing approaches can be. Whatever the faults of the traditional bifurcated approach, it at least provides a degree of certainty about the outcome. By contrast, balancing approaches under which courts somehow determine the "strength" of the government's interest, the "strength" of the individual liberty interest, and then weigh the two against one another, leave us largely at sea.

I am not sure how courts are supposed to do any of this, and I have never read an explanation of how it's supposed to be done that doesn't make practically any result possible and defensible. There is no methodology in the First Circuit's opinion; there is simply opinion. The more we are left to guess the more room there is for judicial policy-making. The First Circuit's policy conclusion, decorated though it is in the language of deference, may be the right policy result or the wrong policy result, the right opinion or the wrong opinion. But it's impossible to say it's right or wrong under the balancing approach because that approach gives us no practical guidance, no evaluative tools. Judicial decisions involving spacious constitutional principles are already highly discretionary; balancing is discretion on stilts.

Consider how courts will likely use their enormous maneuvering room under balancing, especially given the composition of the federal bench. Since Lawrence, many federal courts have gutted the decision by giving it the narrowest possible rational-basis reading, meaning that Justice Scalia's dissenting opinion is effectively the controlling opinion in the case. Would gay-rights or other liberty advocates fare better under a balancing approach than they have under rational-basis review? The same courts, using the black-box analysis of balancing, will likely use the freedom such an approach provides them to reach the same result they would have reached under rational-basis review. That's what the First Circuit has done by calling the individual interest "narrow." Of course, advocates of the third-way approach to substantive due process rights could argue that the First Circuit got it wrong: that the liberty interest is not narrow or insubstantial. But is that the way courts are likely to understand their job when balancing the relevant interests? I think the First Circuit opinion, and many others post-Lawrence, suggest not.

On the other hand, a federal bench more favorably disposed toward gay rights could just as easily use the plasticity of balancing to reach the same results they would have reached under a traditional fundamental-rights/strict-scrutiny analysis.

In short, I do not see how a balancing approach helps us resolve any difficult or interesting issue. It simply kicks the can down the road, leading to ad hoc decisionmaking in the courts and confusion in the legislature about what kinds of laws it can and cannot adopt.

If Lawrence is to have any substantial bite beyond its immediate holding that sodomy laws are unconstitutional, the federal courts are going to need clear marching orders. Instead, what they got from the decision was poetry, and especially abstract poetry at that. Whether it comes under the title "rational basis" or "balancing," the last line of the poem is the same: liberty denied.

UPDATE: Eugene beat me to it on this one. I have shut off comments to avoid duplication. You can comment on his post about the decision, as well as mine, here.

[James Q. Wilson, guest-blogging, June 9, 2008 at 5:20pm] Trackbacks
Deterring crime:

Several readers have asked whether prison deters crime, some saying that correlation is not the same as causation. Social scientists have known that dictum for the better part of a century and have worked hard at finding out whether prison deters crime among would-be-offenders (it obviously prevents it among people already locked up). Steven Levitt, principal author of Freakonomics, discusses the issue in that book and summarizes the evidence, now very strong, in the chapter he wrote from a book I and Joan Petersilia edited entitled Crime. The econometric technique is simple: construct an equation that asks what can explain the crime rate using, as explanations, everything that we think causes crime (for example, urbanization, unemployment, and the like) and adds the chances of going to prison. When you do this, you find that the higher the chances of going to prison in a state, the lower the crime rate, other things being equal. (You also discover that the unemployment rate has very little effect on crime.)


Don't Ask, Don't Tell Cases and Government Employees:

As Paul Secunda (Workplace Prof Blog) points out, the First and Ninth Circuit's have an important effect beyond "Don't Ask, Don't Tell": Because they hold that Lawrence v. Texas recognizes a right to sexual autonomy (subject to a balancing test), they mean that government employers' discrimination against gays, lesbians, people engaged in premarital sex, and possibly even adulterers (though that's not clear) would also be subject to constitutional challenge.

The government may be able to justify such discrimination, if it can show that the employee's or applicant's sexual activity seemed likely to sufficiently interfere with the government employer's operations. (After all, such restrictions are allowed even as to expressly secured rights, such as the freedom of speech.) But it would now have to justify such discrimination -- at least in the First and Ninth Circuits -- rather than having a free hand to discriminate based on sexual conduct.


First Circuit Demands Heightened Scrutiny of Restrictions on Homosexual Conduct, but Upholds "Don't Ask, Don't Tell" On Deference-to-Military Grounds:

This is in today's mostly unanimous Cook v. Gates. A brief summary:

1. Sexual Autonomy Rights: Like the Ninth Circuit did a few weeks ago, the First Circuit strongly suggests that Lawrence v. Texas recognizes a fundamental constitutional right to sexual autonomy, so that laws that burden this right must be subject to some heightened scrutiny. (The court defends this interpretation of Lawrence in great, and in my view persuasive, detail, at pp. 18-28.) I've long argued that this is how Lawrence must be read, but this deepens a circuit split with an Eleventh Circuit decision holding that Lawrence only mandated rational basis scrutiny.

Also, like the Ninth Circuit, the court seems to opt for some sort of intermediate scrutiny, though it's less precise in the terms of the scrutiny than is the Ninth Circuit: The First Circuit calls for "balanc[ing] the strength of the state's asserted interest ... against the degree of intrusion into [people's] private secual life." (See my earlier post for a discussion of some precedents for this sort of intermediate scrutiny.)

2. Special Standards for the Military: Nonetheless, unlike the Ninth Circuit, the First Circuit upheld Don't Ask, Don't Tell despite its intrusion on sexual autonomy rights, because of the special deference that the Court has generally given the government in controlling the actions of military personnel. I touched on that too in my post about the Ninth Circuit decision, where I faulted the Ninth Circuit for not discussing those military deference cases. The First Circuit did discuss them, and drew from those precedents the plausible conclusion that in this case, like in most others, Congress's judgment about military regulation must be deferred to.

3. Equal Protection: The court rejected the Equal Protection Clause challenge on the grounds that, despite Lawrence, discrimination based on sexual orientation is subject only to rational basis scrutiny.

4. First Amendment: The court rejected by a 2-1 vote (District Judge Saris dissenting) the First Amendment challenge on the grounds that Don't Ask, Don't Tell basically uses speech as evidence of behavior, which doesn't generally pose serious First Amendment problems. "The Supreme Court has held that the First Amendment 'does not prohibit the evidentiary use of speech to establish' a claim 'or to prove motive or intent[,]' Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993)," the court reasons, and the same applies when speech is used as evidence of likely future behavior. (I hope to blog more on that soon, since the speech-as-evidence question arises in lots of different contexts.) I should also note that even if the law were treated as an actual restriction of the speech rather than just the use of speech as evidence of likely conduct, it might well still be constitutional given the weak role that the First Amendment — like other constitutional rights — plays as to military personnel.



I was looking on Westlaw for the Colorado case involving the affirmative action initiatives, and found this case title (2008 WL 2205060):

Colorado Citizens for Ethnics in Government v. Committee for American Dream

Odd, I thought -- isn't "Ethnics" an oddly archaic term to use in that group name (or is it just an old group, like the National Association for the Advancement of Colored People)? Reading the court's official case name rather than Westlaw's, though, made matters clear: The petitioner is the Colorado Citizens for Ethics in Government. Whoops! I'll e-mail Westlaw about this, but I thought I'd note this while it hasn't yet been fixed.


"Legal Ethics Is to Actual Ethics As ...":

Sasha posted a comment several days ago saying that "legal ethics is to actual ethics as Madison, Wisconsin is to James Madison: the former is vaguely inspired by the idea of the latter." (Hat tip to Jack Balkin, who originated this line when commenting on Cass Sunstein's "Madisonian" First Amendment theory, see 104 Yale L.J. 1935, 1955.) The Legal Ethics Forum takes up the baton with a contest (and a book for a prize): They're looking for the best entry that starts "Legal ethics is to real ethics as ...." Give them your best.

By the way, while I much appreciate Ann Althouse's linking to Sasha's comment, I should note that neither Sasha nor, to my knowledge, Jack Balkin were trying to "dis" Madison, Wisconsin -- I'm sure Madison is a fine place, but I don't think anybody would claim that Madison is somehow especially "Madisonian" in the sense of embodying the views of James Madison. So the answer to Ann's question, "If we could reanimate James Madison and show him this place, would he really have such a problem with us?," is "no"; the point is simply that, with no disrespect to the city, neither would Madison the person think that Madison the city is somehow specially connected to him in any way beyond the name. (There's also an exchange about this between Sasha and Ann in Ann's comments.)


[James Q. Wilson, guest-blogging, June 9, 2008 at 12:01pm] Trackbacks
What Do We Get From Prison?

We are frequently told that America should be ashamed of having sent so many people to prison. We are compared unfavorably to most of Europe. But these complaints rarely ask what benefits flow from prison.

The best scholars have estimated that between 25 and 30 percent of the recent decline in crime rates is the result of imprisonment. A comparison with England is helpful. At one time it imprisoned a higher fraction of offenders than did the US, but in the 1980s it changed by imprisoning fewer people. As a result (I think), the British crime rate soared while ours fell.

Between 1980 and 1985 the American prison population increased by more than half and between 1985 and 1990 it again increased by half. But from 1987 to 1992, the British prison population dropped by about five thousand inmates despite a sharp rise in the crime rate.

These different responses did not happen by accident. Americans, voting for district attorneys, mayors, and governors, chose people who would take crime seriously. In England hardly any of these offices are filled by local election; instead, the Parliament and the Home Office decide on crime policies.

Those decisions included a bill that urged judges not to send offenders to prison unless the crime was very serious, and in determining seriousness the judges were asked to ignore the prior record of the offenders.

In short, American policies were driven by public opinion while British ones were shaped by elite preferences. As a result, victim surveys show that by the late 1990s the British robbery rate was one-quarter higher and the burglary and assault rates twice as high as those in this country.

This raises the interesting question of why elite views should be so different from popular ones. Some possible explanations: Elites can more easily protect themselves from criminal attacks; elites tend to have a therapeutic rather than punitive view of crime; elites in parliamentary regimes are protected against sharp swings in public moods.

There are a lot of criticisms one can make of prisons, but sending offenders there, provided it is done correctly and without abuse, is an eminently democratic strategy: We deprive guilty people of liberty to make innocent people safer.


Merits Brief in Pearson v Callahan: On Friday, we filed our merits brief in Pearson v. Callahan, 07-751, a Fourth Amendment and qualified immunity case that the Supreme Court will be hearing this fall. I have posted a copy of the brief for interested readers: Brief for Petitioners, Pearson v. Callahan, 07-751. You can read Linda Greenhouse's story about the case for the New York Times here. You can also access the cert petition, brief in opposition, and cert-stage reply brief here.

Still Waiting on Those 5-4 Opinions:

The Court issued four more opinions this morning. Three were unanimous, and one (Engquist v. Oregon Dept. of Agriculture) was decided 6-3. Details here.


James Q. Wilson Guest-Blogging:

I'm delighted to report that James Q. Wilson -- one of the leading criminologists in the nation -- will be guest-blogging this week, chiefly about incarceration and crime rates in the U.S.

Prof. Wilson is emeritus professor at UCLA's management school, and is now Ronald Reagan Professor of Public Policy at Pepperdine; before that, he was professor of government for 26 years at Harvard. He has served on many national commissions (including the White House Task Force on Crime and the President's Foreign Intelligence Advisory Board), as well as the president of the American Political Science Association. He is the recipient of the Presidential Medal Freedom, and the American Political Science Association's James Madison Award for a career of distinguished scholarship. He has written extensively about crime in books such as Thinking about Crime, Crime and Human Nature (with Richard J. Herrnstein), and Crime: Public Policies for Crime Control (with Joan Petersilia). His most recent book, co-edited with Peter H. Schuck, is Understanding America: The Anatomy of an Exceptional Nation.


Judicial Vacancies and the Confirmation Numbers: I was fascinated by the stats my co-blogger Jonathan Adler posted on the numbers of appellate judges confirmed for each President over the last 30 years. Jonathan focuses on the difficulty of filling vacancies, but I think there is also an interesting story about the rates at which vacancies have become available.

  Judicial vacancies come available when a judge retires or resigns or when Congress creates more judgeships. I haven't looked into whether the rates of judicial retirement/resignation have changed, but I think that the authorization of new judgeships has had a major impact on the changing numbers of confirmations. In 1977, Congress had authorized only 97 federal appellate judgeships. That number went up to 132 in the Carter years, 168 in the Reagan years, and 179 in the Bush 41 years. Since Bush 41, however, Congress has not authorized any additional appellate judgeships.

  I would think that some of the explanation of the changing confirmation numbers is a reflection of Congress's decision not to add new judgeships since 1990. When Congress adds a bunch of judgeships, it is more likely to fill them; that boosts the numbers. Of course, the addition of more judges is partially a reflection of Congressional attitudes towards confirmation. If there is a strong contingent in the Senate that doesn't want to let judges through, that same contingent presumably will block legislation adding more judges. Still, decisions on the number of judges can reflect other concerns (such as the size of the docket). Given that, I think the vacancy side of the picture is worth keeping in mind.

Sunday, June 8, 2008

More AALS Mid-Year Conference Blogging:

Some other law profs blogged portions of the AALS Mid-Year Conference on Constitutional Law. On Balkinization, Stephen Griffin reflects on the conference, and Mark Graber writes on "Regime Politics and the Countermajoritarian Problem." Over at Dorf on Law, Michael Dorf comments on the opening plenary's discussion of the Roberts Court, and outlines his Friday luncheon address on contemporary constitutional law scholarship.


Government Stupidity:

Former Treasury Department officials Ernest Christian and Gary Robbins write:

Last August, the government lost track of six nuclear warheads that ended up in cruise missiles affixed to the wings of B-52 bombers flying over American cities. The Federal Emergency Management Agency recently spent $2.7 billion to purchase 145,000 formaldehyde-soaked house trailers. They were for use by people who'd lost their homes when levees designed by the Army Corps of Engineers broke and flooded New Orleans. The FBI is currently forcing its most skilled and experienced antiterrorism field supervisors to accept "promotions" to paper-shuffling jobs in Washington.

But the millions of inanities that occur daily throughout the government's world-wide empire are mere trifles compared to its big-ticket failures.

What kind of government forces people to make gasoline out of food, artificially boosts the price of corn to $6 a bushel, guarantees that inflated price as the "base" for higher federal subsidies to corn farmers in the future, and then tries to hide its own depredations by excluding high food prices from its measure of "core" inflation?

Washington never learns from its mistakes.


More on Montana's "Republican" Senate Nominee:

Bob Kelleher was the surprise winner in Montana's Republican Senate primary this past week. He's a former Democrat who also ran for office on the Green Party ticket, though the Green Party has disavowed him. The Missoulian has more on him here.

For the last 44 years, Kelleher has run for office 16 times and lost 15. His only taste of victory came in 1971, when he was elected a delegate to Montana’s Constitutional Convention. There, he helped replace the state’s century-old territorial constitution with one of the most progressive governing documents in the nation. Kelleher’s political passion then, as now, is unique - and largely unpopular: He wants to replace the U.S. Senate, House and presidency with a parliament.

Under a parliamentary system, citizens vote for parties, not individual candidates. The party with the most votes selects a prime minister, who serves as a kind of president, from the ranks of the legislative branch. Under a parliament, Kelleher said Wednesday, you can’t have a president of one party playing the blame game with a Congress controlled by the opposing party while the nation’s real problems and real people wait endlessly for real solutions.

“There’s no more passing the buck,” he said. “The party in power is responsible for everything that goes wrong, as well as everything that goes right. Now, nobody is responsible, really.”

Such broad representation would free America to deal with the problems that have literally been known to bring tears to Kelleher’s eyes: He is passionate about eradicating poverty. He believes health care is a right of all citizens and the government should pay for it with tax dollars. He believes bad trade policies have shipped American jobs overseas, while bad tax policy has created a startling dichotomy between rich and poor that threatens democracy itself. He believes government exists to serve the common good, not necessarily private interests, and that taxation, if spent wisely, is a solution to America’s problems, not the cause.

Kelleher said he intends to campaign on those very issues, along with his long-held pro-life stance, in the general election against Baucus.

Related Posts (on one page):

  1. More on Montana's "Republican" Senate Nominee:
  2. Green Party Activist Wins GOP Senate Primary in Montana:

Sunday Song Lyric: Weezer is a quirky band from L.A. with a devoted following. One VC reader wrote to recommend their latest single, "Pork and Beans," for today's song lyric. The Wikipedia page on the song has an interesting tidbit about its inspiration:
This was written by [lead singer Rivers] Cuomo as a reaction to a meeting with Geffen where the band was told it needed to record more-commercial material. Cuomo remarked, "I came out of it pretty angry. But ironically, it inspired me to write another song."
The YouTube-inspired video is available on YouTube (where else) here. The lyrics begin:
They say I need some Rogaine to put in my hair
Work it out at the gym to fit my underwear
Oakley makes the shades that transform a tool
You’d hate for the kids to think that you lost your cool

I’mma do the things that I wanna do
I ain’t got a thing to prove to you
I’ll eat my candy with the pork and beans
Excuse my manners if I make a scene
I ain’t gonna wear the clothes that you like
I’m finally dandy with the me inside
One look in the mirror and I’m tickled pink
I don’t give a hoot about what you think
The full lyrics can be found here.