Author Archive | Sasha Volokh

Western Christians, Orthodox Christians, and Jews: the coming convergence

Over the last few days, I’ve been blogging (here and here) about calendrical differences and how that affects the calculation of the date of Easter.

The good news is that these problems are going to diminish substantially pretty soon.

Recall the Orthodox calendar, which is 13 days off from the Western calendar. The Orthodox calendar is getting more and more off, by about 3 days every 400 years. But some of the Eastern Orthodox churches have adopted the Revised Julian calendar, also called the Milankovic calendar. The Revised Julian calendar omits 7 century leap years every 900 years, so there are 218 leap years instead of 225 every 900 years. (The two centuries that remain leap years are those that are equal to 200 or 600 mod 900, i.e., 2000, 2400, 2900, 3300, etc.) This makes an average year length of 365.24222 days. By contrast, the Gregorian calendar omits 3 century leap years every 400 years, so there are 97 leap years instead of 100 every 400 years. This makes an average year length of 365.2425; the two calendars will thus diverge by one day every 3600 years, on average. The true tropical year length is 365.24219, so the Revised Julian calendar is even a bit more accurate than our Gregorian one.

As I said earlier, it’s one thing to come up with a more accurate system; it’s another thing to get people to incur the transition costs. The Wikipedia article says that, so far, the Revised Julian calendar “has been adopted by the Orthodox churches of Constantinople, Alexandria, Antioch, Greece, Cyprus, Romania, Poland, and Bulgaria (the last in 1963), called the New calendarists. It has not been adopted by the Orthodox churches of Jerusalem, Russia, Serbia (including the uncanonical Macedonian Orthodox Church), Georgia, Mount Athos and [...]

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Orthodox Easter: What’s up with that? — Part 2

Yesterday, I posted about the difference between the Gregorian calendar that we use in the West and the Julian calendar that’s still used by most Eastern Orthodox churches. There’s a 13-day difference between them for the period between 1900 and 2100, so any given day (e.g. October 12) shows up 13 days later on the Julian calendar than on the Gregorian calendar. So someone with a Julian calendar would celebrate October 12 on a day that shows up as October 25 on our Gregorian calendars.

Now, step 2 in understanding Easter: how is Easter defined? As an initial matter, note that Easter Sunday is the day when Jesus Christ rose from the dead, and the Gospels say that happened when he came to Jerusalem to celebrate Passover. So in principle, you could think that Easter happens at Passover — more precisely, on 14 Nisan, the day before Passover starts on 15 Nisan. (See also various verses in chapter 19 of the Gospel according to John.) Now the Jewish calendar is a complicated thing, but the bottom line is that 15 Nisan is always on a full moon after the spring equinox. How do they guarantee that this happens? Intercalation, that’s how. Because Jewish months are lunar, the folks in charge of the calendar stick in a whole nother month, called Adar II, before Nisan just to ensure that Passover is on a full moon after the equinox.

So why not tie Easter to Passover and celebrate it whenever 14 Nisan would fall in the Jewish calendar? The Christians who believed you should do this were called Quartodecimans, or “fourteeners” if you will. Various Christian communities followed the “14 Nisan” rule and just asked their local Jews when Passover started, but after controversies in the second and third [...]

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Orthodox Easter: What’s up with that?

Easter is this Sunday, March 31. But Orthodox Easter, celebrated by most branches of the Eastern Orthodox Church (including the Russian Orthodox Church) and some Oriental Orthodox churches, is May 5 this year, a full five weeks after Easter as celebrated by Western Christian churches. (As a footnote, you may listen to Rimsky-Korsakov’s Russian Easter Overture at this site.) The five-week difference has happened recently in 2002, 2005, and 2008. But in 2001, 2004, 2007, 2010, and 2011, Western and Orthodox Easter fell on the same day. And in 2000, 2003, 2006, 2009, and 2012, Orthodox Easter was one week after Western Easter. What’s up with that?

First, let’s go over the basic difference between the Julian and Gregorian calendars. The Julian calendar, introduced in 45 BC, is easy: the year is 365 days long, except that we have a leap year every four years. After some confusion caused by off-by-one errors, apparently the proper sequence of leap years was reestablished by AD 4 or AD 8. (Good thing 4 and 8 happen to be divisible by 4: otherwise we might have leap years that occur on non-multiple-of-four years, which would be more confusing! Of course the numbering that established those years as being 4 and 8 came around much later, and was based on a totally different criterion.)

The Julian calendar had the advantage that it made the average year length 365.25 days rather than 365, which is closer to the astronomic truth. Without leap years, the years would be too short, so every four years the solstice would have a calendar day that seems a day later; instead of June 21, in 120 years we’d have it at July 21; and roughly 600 years after that, the summer solstice would be in December. All [...]

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More on DOMA and federalism

I have some questions for Jonathan (or anyone else), along the lines of my previous comments on DOMA and federalism:

1. Suppose DOMA defined “channels” to mean “navigable-in-fact waterways, as well as all interstate and intrastate waters including (but not limited to) intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, drainage ditches, and ephemeral streams,” as Jonathan suggests. Jonathan suggests there would be something unconstitutional here because “the practical effects of this definition would be expand the scope of federal power so as to supplant state authority in an area of traditional state concern.”

I would think, though, that the problem isn’t with the definitional statute itself. For instance, suppose there were such a definitional statute, but it were never used anywhere — presumably no harm, no foul? Or what if it were only used in one statute somewhere in the U.S. Code, where Congress expressed its sense that channels were awesome things, or established a spending program to beautify channels. Again, nothing unconstitutional? I would think that any unconstitutionality would occur if and when that definition gets used in a way that regulates channels beyond what’s allowed under the Commerce Clause or any other source of federal power. So the problem isn’t with the definition but with the specific substantive provision where that definition gets used. There could be no such unconstitutional statutes, or one, or however many, but the fact that DOMA affects hundreds of statutes seems to play no role here.

Getting back to DOMA, I would then doubt that there’s any displacement of state authority as to marriage in any particular statute. Because, take the tax code: Congress didn’t have to grant special tax treatment, say, to married couples; Congress could have written the [...]

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Auer and Chevron

As Jonathan wrote earlier, the Supreme Court’s Wednesday decision in Decker v. Northwest Environmental Defense Center might portend big things for Auer deference. Jonathan’s already hit the high points, but I wanted to note what Scalia said about how deferential Auer deference really is.

It turns out there’s disagreement in the literature over the strength of Auer (or Seminole Rock) deference, i.e., the deference that’s due to an agency’s construction of its own regulations, relative to Chevron deference, the deference that’s due to an agency’s construction of a statute (when the agency is making statements that have the force of law, as per Mead). Robert A. Anthony, in The Supreme Court and the APA: Sometimes They Just Don’t Get It, calls Auer “an indulgent if not downright abject standard of deference.” Bill Eskridge and Lauren Baer, in The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, classify Seminole Rock/Auer deference as stronger than Chevron deference. Stephen M. Johnson, in Bringing Deference Back (But for How Long?): Justice Alito, Chevron, Auer, and Chenery in the Supreme Court’s 2006 Term, also describes Auer deference as “even more deferential than Chevron deference.”

But not everyone takes this view. Richard Pierce, the author of one of the leading administrative law treatises, writes in Democratizing the Administrative State that “Seminole Rock deference is about as strong as Chevron deference.” (All this is taken from Hanah Metchis Volokh, The Anti-Parroting Canon, 6 NYU J. L. & Liberty 1 (2011).)

Scalia, in Decker, comes down on the Pierce side:

The canonical formulation of Auer deference is that we will enforce an agency’s interpretation of its own rules unless that interpretation is “plainly erroneous or inconsistent with the regulation.” But of course whenever

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What a Recent Labor-Relations Decision Teaches Us About the Meaning of “Public” and “Private”

My new post is up on the Reason Foundation web site. (Earlier, I had posted there on the Supreme Court’s antitrust decision in FTC v. Phoebe Putney.) Here’s the beginning:

In June 2010, the Chicago Alliance of Charter Teachers & Staff filed a petition to be certified as the exclusive bargaining representative of teachers at the Chicago Mathematics & Science Academy (CMSA), a charter school. The petition was filed with a specialized state agency—the Illinois Educational Labor Relations Board (IELRB)—presumably because that’s the agency that enforces the Illinois Educational Labor Relations Act (IELRA), which, by its terms, extends to “educational employer[s],” a term defined to include charter schools as well as public schools.

The charter school, though, thought otherwise. The school’s position was that it was subject to federal, not state, labor law—specifically, that it was governed by the National Labor Relations Act (NLRA), enforced by the National Labor Relations Board (NLRB). The NLRA, after all, extends to all “employer[s]” with a handful of exceptions. The only arguably relevant exception is the NLRA doesn’t cover “a political subdivision” of a state; but the charter school argued that, unlike a public school, it isn’t a political subdivision, so the only labor law that applies is the federal NLRA. Because of federal supremacy, anything in the IELRA to the contrary is preempted, and IELRB jurisdiction is inappropriate.

Why should a school care whether it’s under the jurisdiction of a state or a federal agency? Federal and state labor law differ in various ways, but one relevant consideration is possibly that federal law requires secret ballots when an employer doesn’t recognize the union voluntarily, while state law also allows for union recognition using the non-secret “card-check” method. And employers are far more enamored of secret ballots than are unions. In any

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Ammori on local taxicab competition, antitrust, and other solutions

My friend Marvin Ammori has a piece in Slate about Uber, Lyft, and SideCar, three new companies trying to provide competition to the taxicab market. Here’s what he has to say about the antitrust solution to taxicab monopolies:

It might seem odd to call for a federal agency like the FTC to take action in what appears to be a purely local issue. But not only does the FTC have the authority to take these cities to impartial federal courts and end their anticompetitive actions; it also has deep expertise in taxi markets and antitrust doctrines. By law, the FTC’s power to regulate “interstate commerce” is just as broad as Congress’, and that power is famously far-reaching, even covering the growing of plants at home for purely personal use. Here, as the agency noted in its 1984 cases against Minneapolis and New Orleans, the FTC could regulate local taxi markets merely because interstate travelers take taxis (and Ubers) to and from the airport when they fly across state lines. Moreover, Uber, SideCar, and Lyft are California-based technology companies competing in multiple states.

The FTC’s general antitrust authority, however, only sometimes outranks city authority. Under the Constitution, federal law trumps both state and city law. But antitrust law allows states some exceptional leeway to adopt anticompetitive business regulations, out of respect for states’ rights to regulate business. This federal respect for states’ rights does not extend to cities—they are subject to the antitrust laws unless states pass legislation absolving them. For example, Minneapolis ended up avoiding the 1984 lawsuit by acceding to the FTC and permitting more competition. New Orleans did something different: It succeeded in lobbying the state of Louisiana to authorize its anticompetitive actions, to the detriment of consumers.

Some states, including Florida, Nevada, and Texas, could argue that

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Two excellent talks in Atlanta

Yesterday and today, I attended two excellent talks in the Atlanta area — the free-market/libertarian scene in Atlanta is actually kind of booming these days, with FEE, AFF, GPPF and ATLOS having an active presence, as well as some interesting student organizations.

Last night, Tom Palmer of Cato/Atlas came down to Kennesaw State University to talk about his new edited volume, After the Welfare State. I met Tom 20 years ago at an IHS conference, and he’s always an excellent speaker. (You can get the book from Amazon, but Students for Liberty and others are also giving it out at events, to student groups, etc.)

Then, this morning, Yaron Brook of ARI gave a talk on “Morality and the Marketplace” as part of his book tour for his (and Don Watkins’s) new book, Free Market Revolution: How Ayn Rand’s Ideas Can End Big Government. I’d never met Yaron or heard him speak before, and (not being an Objectivist) I wasn’t sure whether I’d like it, but it was an outstanding speech, from which one may possibly extrapolate that those who take an interest in this sort of thing might enjoy his book. The Georgia Public Policy Foundation’s monthly policy breakfasts and other events have been consistently interesting, from what I’ve seen of them so far. [...]

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Yiddish, Esperanto, and the Doctor’s Wife

I just finished reading Michael Chabon’s The Yiddish Policemen’s Union, which I loved. It turns out that both this and the last English novel I read, David Bezmozgis’s The Free World, both have Esperanto components to the plot, which was unexpected but not totally out of left field, since both books have to do, broadly speaking, with the intellectual interests of twentieth-century Jews.

Is it just me, or did anyone else immediately imagine the Bina Gelbfish character as Alex Kingston, aka River Song, the Doctor’s Wife? [UPDATE: Commenter MathAdder points out that The Doctor’s Wife could refer to this, but see also this.] [...]

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Cavete Idus Martias

Soothsayer. Caesar!

CAESAR. Ha! who calls?

CASCA. Bid every noise be still: peace yet again!

CAESAR. Who is it in the press that calls on me?
I hear a tongue, shriller than all the music,
Cry ‘Caesar!’ Speak; Caesar is turn’d to hear.

Soothsayer. Beware the ides of March.

CAESAR. What man is that?

BRUTUS. A soothsayer bids you beware the ides of March.

CAESAR. Set him before me; let me see his face.

CASSIUS. Fellow, come from the throng; look upon Caesar.

CAESAR. What say’st thou to me now? speak once again.

Soothsayer. Beware the ides of March.

CAESAR. He is a dreamer; let us leave him: pass. [...]

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Happy Pi Day!

In honor of Pi Day (3/14), I’ll share a mnemonic for 167 digits of pi, which I developed with some friends in the mid-’90s.

Many people know the common mnemonic: “How I need a drink, alcoholic of course, after the tough lectures involving quantum mechanics.” Count the number of letters in each word and stick a decimal point after the 3, and you get: 3.14159265358979, which is already more than you need for most purposes. The thirty-second digit after the decimal point is a zero, which in this mnemonic we represent by the end of a sentence. Here’s 167 digits’ worth:

How I need a drink, alcoholic of course, after the tough lectures involving quantum mechanics; but we did estimate some digits by making very bad, not accurate, but so greatly efficient tools! In quaintly valuable ways, a dedicated student — I, Volokh, Alexander — can determine beautiful and curious stuff, O! Smart, gorgeous me! Descartes himself knew wonderful ways that could ascertain it too! Revered, glorious — a wicked dude! Behold an unending number: pi! Thinkers’ ceaseless agonizing produces little, if anything! For this constant, it stops not — just as e, I suppose. Vainly, ancient geometers computed it — a task undoable. Legendre, Adrien Marie: ‘I say pi rational is not!’ Adrien proved this theorem. Therefore, all doubters have made errors. (Everybody that’s Greek.) Today, counting is as bad a problem as years ago, maybe centuries even. Moreover, I do consider that variable x, y, z, wouldn’t much avail. Is constant like i? No, buffoon!

Note that the word “greatly” in the first sentence was originally “f**king”, but this is a family blog.

This was written up in the March 18, 1996 issue of The Scientist magazine (at the link you’ll also find a picture of me [...]

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Voting is medieval

David M. Perry writes in The Atlantic about How History Can Help Us Predict the Next Pope. I like his first point, “Voting is Medieval”:

Voting is a quintessentially medieval activity. Sure, popular representations of the Middle Ages focus on kings and knights, princesses and peasants, but medieval people, especially in cities, loved to vote. They organized themselves into groups — guilds, religious fraternities, charitable organization, drinking societies — and wrote complicated bylaws governing elections. Many cities embraced various kinds of representative government during the High Middle Ages. Even the army outside the walls of Constantinople in 1204 took time to develop a voting system to elect the next emperor.

It’s easy to characterize the Conclave of Cardinals as an authoritarian relic of the past. It’s not. It’s the same kind of democratic tradition that permeates modern American and European life, from board rooms to union halls to church groups to town councils.

As they say, Read The Whole Thing. [...]

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The Antitrust State Action Doctrine and State Licensing Boards

Since I’ve been spending time recently, in the wake of FTC v. Phoebe Putney, posting on the antitrust state action doctrine (see, e.g., here and here), here’s a student comment from a recent issue of the University of Chicago Law Review, called The Antitrust State Action Doctrine and State Licensing Boards, by Ingram Weber. Here’s part of the introduction:

Imagine that a state board of dentistry claims that consumers could be harmed when a popular procedure such as teeth whitening is performed incorrectly. The board issues a rule prohibiting anyone other than a state-licensed dentist from offering teeth-whitening services in the state. This rule ensures that only those with the most training and experience treating teeth in the state– dentists–may perform the service.

But whatever increased safety is generated by this rule comes at two costs. First, dental hygienists, nondentist doctors, and other groups can no longer earn money from teeth whitening. Second, because the rule shrinks the number of suppliers, consumers may have to pay more for the service.

When such a rule is promulgated by a state legislature and enforced by bureaucrats, consumers and nondentist competitors often accept the state’s judgment that the benefits to public safety justify the anticompetitive effects. But because the hypothetical board of dentistry is composed of practicing dentists, there is a greater fear that the professed threat to public safety is an excuse to allow dentists to enrich themselves by monopolizing the market for teeth whitening.

To continue this hypothetical, based on In the Matter of the North Carolina State Board of Dental Examiners, imagine further that the Federal Trade Commission (FTC) and aggrieved competitors seek to defeat the board’s rule by alleging that it represents a conspiracy in restraint of trade in violation of the Sherman Antitrust Act.

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Some questions on the DOMA federalism theory

I’m also one of those who are skeptical of the federalism brief against DOMA. But I have a few questions, based on perusing the recent posts here and elsewhere by Dale, Randy, Jonathan, Nick, and my former boss Ed. (I read the brief itself a while back, but declined to sign; forgive me if the answers to my questions are right there in the brief.)

1. Ed distinguishes three types of statutory schemes: (a) a statute attaching consequences to marriage, with a definitional section defining “marriage”, (b) a statute where the word “marriage” is simply replaced with its definition, and (c) a statute without a definition of marriage, but where “marriage” is defined in a separate statute. Would the federalism theory be fine with (b) but not with (a) and (c)? Or, based on the idea that Congress has no power to care about what’s a good marriage, would the theory would also invalidate (b)? What’s the dealio?

2. If the problem is that Congress enacted DOMA for the purpose of furthering traditional marriage, does that mean I have to buy into purposivism or intentionalism to buy this theory?

3. What about all the statutes granting benefits to a spouse derivatively of the eligibility of a primary person, like Social Security (for purposes of survivorship), the immigration laws, etc.? The statute could have been written to apply to the actual eligible person: no Social Security benefits for widows, no special immigration treatment for the wife of an eligible person, etc. And yet they did write the statute to give special treatment to spouses that isn’t available for boyfriends/girlfriends, business partners, best friends, chess partners, etc. What was Congress’s power to do so, thus privileging the marital relationship over other kinds of relationships (even long-standing [...]

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