Wednesday, October 4, 2006Judge Pryor on Criticisms of the Judiciary:
In today's Wall Street Journal, Eleventh Circuit Judge William Pryor responds to concerns that the judiciary today is under attack. I tend to think Judge Pryor has it about right. Thanks to Feddie for the link.
More on the Foley Legal Issues:
Most of the legal discussion that I've seen of the Foley case has focused on whether he could be on the hook for attempting to physically seduce the pages. Might it be a crime, though, for him to try to get the page to masturbate? (It's not clear from the material that I've seen whether he was in fact trying to do that, but I suppose it's possible.) Masturbating isn't a crime, fortunately, whatever the age of the person's who's masturbating; but getting a minor to masturbate for you might be, depending on the jurisdiction and on the minor's age. People v. Imler., 9 Cal. App. 4th 1178 (Cal. App. 1992), for instance, held that Cal. Penal Code § 288()a), "Any person who willfully and lewdly commits any lewd or lascivious act, ... upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony," outlawed a person's telephoning a child and ordering him (through threats of harm to the child's parents) to masturbate while the child is on the phone:
(The logic of the case would extend to persuasion without the use of threats as well.) Likewise, People v. Poplaski, 616 N.Y.S.2d 434 (N.Y. Dist. Ct. 1994), held that N.Y. Penal Law § 260.10(1), which prohibits "knowingly act[ing] in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old," made punishable the defendant's phone conversations in which he directed 12-to-15-year-olds to masturbate. My sense is that such a theory is a longshot, even if Foley was trying to get a minor to masturbate during their electronic conversation; among other things, I'm not sure that all similar statutes would be read this way, and I'm not sure that many states have such statutes that reach up to the level of the older minors who seem to have been involved in the Foley case. (I should note that some states ban using a child in a "sexual performance," which conceivably could include getting the child to masturbate in front of one person, but the Florida statute, for instance, is limited to visual performances rather than acts which someone merely hears, or is told about.) And, more importantly, it's hard to figure all this out without knowing more about exactly what Foley said, and exactly where the minors were at the time. Related Posts (on one page):
Haynesworth Apologizes, Will Not Appeal:
ESPN reports that Albert Haynesworth personally apologized to Andre Gurode over the phone for stomping on Gurode's face during Sunday's game between the Tennessee Titans and Dallas Cowboys. Further, Haynesworth says he accepts his punishment and will not appeal the five game suspension -- a suspension that will cost him close to $200,000 in lost salary. The NFL Players Association wanted to appeal the suspension, which is more than double the longest suspension ever for on-field conduct (two-games for throwing a quarterback onto the ground after the play ended), but such an appeal would seem to be difficult without Haynesworth's support. There is still no word on whether Haynesworth could face additional penalties in court. Gurode is still weighing whether to press criminal charges or file a civil suit against Haynesworth. I suspect the latter decision will depend, in part, on the extent of the damage Gurode suffered. As of this morning, the press reported Gurode is still suffering from blurred vision. Related Posts (on one page):
Creative destruction:
A fun quote from Joseph A. Schumpeter's Capitalism, Socialism, and Democracy (I'm reading from the 3rd edition from 1950):
This is from p. 82 (footnote omitted). Tuesday, October 3, 2006We're Not the Judean People's Front's Harvard Law & Policy Review:
dammit! We're the People's Front of Judea's Harvard Journal of Law & Public Policy. Wankers. OK, that's not that close an analogy, but I still couldn't help thinking of it. Related Posts (on one page):
Harvard Law & Policy Review:
The American Constitution Society has launched an official journal, the Harvard Law & Policy Review. (This is not to be confused with the Harvard Journal of Law & Public Policy, a journal founded in 1978 that leans conservative/libertarian and is famous for its outstanding executive editing in Volume 20.)
The HLPR is accompanied by HLPR Online, "a forum for progressive debate about new and unorthodox solutions to the most pressing problems facing the nation." There are a bunch of interesting essays up on the site's webpage by the like of Laurence Tribe, Robert Post & Reva Siegel, Joe Singer, and David Barron. I was particularly interested in this essay by Ian Bassin, former President of the Yale ACS student chapter. An excerpt: Ask a group of self-described liberal law students to articulate what they stand for and you’re likely to get either rambling, incoherent replies or blank stares. Those who do answer may touch upon issues ranging from equality to opportunity to reproductive freedom, but are unlikely to be able to unite these ideas under any consistent philosophical framework. Those who have a philosophical framework are lucky if they can explain it in less than 30,000 words.I wonder, do law students (on the left or the right) agree that this is true? For a reaction to the new journal posted at the conservative Weekly Standard, click here. Related Posts (on one page):
Kant bleg:
"Out of the crooked timber of humanity, no straight thing was ever made." Does anyone know the actual source for this in Kant, and the actual quote in German? A Google search for "krummen Holz" yields a number of different formulations and no actual citation. Does Isaiah Berlin (whose book I don't have on hand) give a citation? UPDATE: Well, that was quick. Thanks, all! Legal Issues in the Mark Foley Investigation:
The FBI is investigating whether Congressman Mark Foley violated federal law in his sexually explicit IMs and e-mail communications with House pages over the last few years. The case actually brings up a bunch of very interesting legal questions, and I wanted to explain the issues for readers who are following the story in the news.
The basic law at issue here is 18 U.S.C. § 2422(b), sometimes known as the federal enticement statute, which is part of the Victorian-era legislation known as the Mann Act. The basic point of the statute is making it a crime to use a means of interstate commerce to try to persuade a minor to engage in an illegal sexual act. Here's the key text: Whoever, using . . . any facility or means of interstate or foreign commerce . . . knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in . . . any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 5 years and not more than 30 years.Using IM or e-mail clearly counts as using a facility or means of interstate or foreign commerce. See, e.g., United States v. Tykarsky, 446 F.3d 458, 470 (3d Cir. 2006). And at least based on the e-mails we know about, it looks like Foley didn't actually succeed in persuading any minors to engage in sexual activity. So the question is whether Foley made an attempt to persuade, induce, or entice a minor to engage in an illegal sexual act. What does this mean? Well, the answer is a little technical. It turns out that in criminal law, attempting to do something means more than just trying to do it. Different courts use different tests, but all distinguish between mere preparation to commit the crime and an actual attempt to commit it. Only the latter is prohibited. Federal courts generally use the "substantial step" test for attempt borroewed from the Model Penal Code. Under this test, a person is guilty of an attempt to commit a crime "if, acting with the kind of culpability otherwise required for commission of the crime, he ... purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime." United States v. Hsu, 155 F.3d 189, 202-203, 203 n. 19 (3d Cir. 1998) (quoting Model Penal Code § 5.01(1)(c)). As you might guess, this often requires difficult line-drawing; whether conduct is a "substantial step" or not can be mushy, and generally is a question for the jury that courts are reluctant to second-guess. The requirement that the sexual act be "activity for which any person can be charged with a criminal offense" generally incorporates the state law where the suspect expects the illegal sexual act will occur. State laws can vary, which can make it important to figure out the state in which the suspect was trying to have the offense occur. For example, in United States v. Patten, 397 F.3d 1100 (8th Cir. 2005), a police officer in West Fargo, North Dakota, posed in an Internet chat room as a 16 year old girl. The defendant visited the chat room from his home in nearby Moorhead, Minnesota. The officer persuaded Patten to come to a grocery store in West Fargo, where the defendant was arrested. The law of North Dakota and Minnesota differ in a critical respect: in Minnesota, consensual sexual conduct between an adult man and a 16 year-old girl is legal, whereas the same conduct is illegal in North Dakota. The defendant argued that there was insufficient evidence that he had intended to engage in sexual activity in North Dakota, and therefore had not violated the federal statute. According to the defendant, he had planned to engage in the illegal activity in Minnesota, where it would have been legal. The Eighth Circuit affirmed the conviction, ruling that there was sufficient evidence from the facts of the case for a reasonable juror to conclude that the defendant intended to persuade the girl to engage in sexual activity in North Dakota. See id. at 1103-04. So where does that bring us? Putting the pieces together, the legal question is whether Foley's communications were a substantial step in a course of conduct planned to culminate in persuading a minor to commit a sexual act that would be illegal where the act was expected to occur. Would a jury convict on the basis of that test? I haven't done more than scan quickly through some of the published e-mails and IMs, and I'm not sure all of the communications have been made public, so I don't know whether I think a jury should convict. And of course we would need to know what state we're talking about to answer the question fully. But whether a jury would convict may depend at least in part on where any case would be brought, which depends on where venue is present. In an 18 U.S.C. § 2422 case, venue is proper in "any district in which such offense was begun, continued, or completed." 18 U.S.C. § 3237(a). See United States v. Byrne, 171 F.3d 1231, 1235 n.2 (10th Cir. 1999). Although I don't know of any cases testing how far this goes, it clearly would allow a prosecution wherever Foley was or wherever the minor was who Foley may have been attempting to entice. I would guess that prosecutors are looking for IMs and e-mails sent to minors when they were back home, far from Washington DC, perhaps in socially conservative states or districts where jurors would be particularly likely to see Foley's e-mails as the danergous products of a sexual predator. If they decide to prosecute, the feds probably would bring the case in that state or district. Related Posts (on one page):
Trusting, Insular Communities:
The New York Times writes about the recent school shootings:
What does this mean? If I'm not stopped from entering a school while heavily armed, is it likely because the community is "trusting" or "insular"? Would a more cynical community have said "Hey, wait a sec, you're carrying three guns into the school! We don't trust you!" Would a more worldly community have said "We're not like those hicks down the road -- we know that guns can actually kill people, and strangers who go heavily armed into a school are likely up to no good?" My sense is that the only thing that could have stopped this murderer is someone else who's armed -- whether an armed security guard (something that even many non-trusting, non-insular schools don't have), an armed teacher, or someone else who had the requisite firepower (and willpower). Better yet would have been someone else who's armed but who's not in uniform, since even an armed but uniformed school guard could easily be surprised by the killer, who could murder him and then go inside with impunity. One can debate the merits of allowing teachers to be armed. But if one is going to talk about why there was "no one to stop [the killer] from entering with a shotgun, a rifle and an automatic pistol," that's the debate we should be having -- stressing the community's being "trusting" and "insular" as a possible cause seems to me a red herring. Convicting the Guns (or the Bottles):
The New York Times writes about the recent school shootings:
Just what is the editorial board proposing that we do? Apparently it's that we shouldn't "acquit the guns," but what does that mean? Are they urging gun registration of some guns (since they claim that they're not supporting "keep[ing] tabs on every gun")? That surely would do nothing about such school shootings. Are they implicitly urging handgun bans? Even if such bans succeeded in preventing a material number of would-be murderers from getting handguns, which I doubt, this very incident reminds us that shotguns and rifles can be at least as lethal (in fact, are in many respects more lethal, and just as usable if you're not worried about easy and convenient concealability, and are willing to carry the long gun open, to conceal it in a suitcase, or to saw it off). When pro-gun-control forces urge restriction on guns in response to certain kinds of crimes — for instance, crimes where the criminal is trying to evade detection and capture — then it's at least credible that those controls would be limited to (say) handguns, or illegal carrying of handguns, or some such. But the only gun control that would stop people who are willing to commit multiple murder, and who don't worry about getting caught, would be (1) a total ban on guns, (2) confiscation of the likely more than 200 million guns in private American hands, and then (3) diligent action to control the black market in guns that would inevitably result. So when such multiple murders are seen as occasions for calls to gun control, however disclaimer-laden ("Nor is it possible or politically tolerable to keep tabs on every gun"), people who care about gun rights and self-defense naturally worry that the gun controllers' true goal is broad indeed. I agree that murder and crime more broadly is a very serious problem, and that gun homicides and (to a lesser extent) other gun crimes are a very serious aspect of that problem. Likewise, for instance, alcohol-related death and crime is a very serious problem. The question is what exactly should be done about it. Should we ban guns and alcohol? Try to seriously diminish access to them? Try to regulate them in ways that don't seriously diminish access, at least to law-abiding citizens? If we have in mind a particular manifestation of the problem (e.g., school shootings, or drunk-driving deaths, or whatever else), what policy proposals would diminish that aspect of the problem, without unduly exacerbating other problems? Hard questions, and important ones. But simply talking about "not acquit[ting]" the vodka bottle or the shotgun — an inanimate object that one would have thought wouldn't be subject either to acquittal or to conviction — hardly advances the analysis. The Animals:
It struck me again today, from some flyer I noticed lying around, how peculiar it is that our two major political parties are represented by (1) a donkey and (2) an elephant. There are reasons, I suspect, that one never hears of the University of X Donkeys playing the Y State Elephants on Saturday afternoons -- they're just two of the oddest damn animals around, and wouldn't seem, at first glace, to be portraying the kind of virtues one looks for in a political party. I think the portrayals capture, in a small way to be sure, some of the American dislike and distruct of politics, politicians, and political parties. Largest Suspension in NFL History:
On Sunday, the Tennessee Titans' Albert Haynesworth stomped on the head of the Dallas Cowboys' Andre Gurode, while Gurode was lying on the ground at the end of a play without his helmet. Gurode required 30 stitches and may press charges. The NFL responded swiftly, suspending Haynesworth for five games. This is the longest suspension [for on-field conduct] in league history. Indeed, until now the league had not supsended a player for more than two games. Because players are not paid during suspensions, Haynesworth stands to lose approximately $500,000 for his conduct. This suspension was also the first significant disciplinary decision made since Roger Goodell assumed the post of NFL commissioner. Haynesworth will not appeal the suspension, according to Titans coach Jeff Fisher. Nonetheless, the NFL Players Association indicated it may challenge the suspension. Fisher's respsonse seems more appropraite: This was a severe and unprecedented disciplinary action, but such is appropriate for such a severe case of unacceptable on-field conduct. [Note: Post edited as indicated above to correct a minor error.] Related Posts (on one page):
WSJ Op-ed on State Courts and Daubert:
As noted previously, my op-ed on this topic appeared in the Wall Street Journal Saturday. Since there is no free link, I'm reprinting it below, with permission. Rule of Law Quackspertise By David E. Bernstein 30 September 2006 The Wall Street Journal A9 A recent decision by a New York court is a stark reminder that, despite far-reaching reforms, junk science still plagues American courtrooms. The case, Nonnon v. City of New York, involves a group of plaintiffs claiming that exposure to toxic substances in New York City's Pelham Bay landfill caused their cancers. They presented no study to the trial court showing that any substance found in the landfill causes their types of cancer; and the testimony of their expert witnesses was speculative and based on a single methodologically deficient study. When one of these experts was challenged, he "persisted in providing insufficient information about his methods and incomplete information about his analysis," wrote two judges of the intermediate-level appellate division. His conclusions were at odds with the conclusion of the city's expert, who used "explicit, detailed, generally accepted methods." Should the trial judge have approved this dodgy testimony? The two judges quoted above said no, but were outvoted by three colleagues in June. New York has a rule for excluding unsound scientific evidence, but the majority troika refused to apply it — on the question-begging grounds that it would deprive plaintiffs "suffering the ill effects . . . of environmental contaminants" from obtaining compensation. The outcome would likely have been different had the suit been brought in federal court. That's because cases based on the sorts of "quackspertise" that once led to multimillion dollar payouts for trial lawyers — claims that breast implants cause immune-system disease, power lines cause leukemia, vaccines cause autism, and the like — now routinely get dismissed before trial. The reason is a strict reliability test for expert testimony first announced by the U.S. Supreme Court in the 1993 case of Daubert v. Merrell Dow Pharmaceuticals. But Daubert's reliability test, codified in Federal Rule of Evidence 702, only governs federal trials. [click to continue reading] (show) How to rise to the top of the SSRN download rankings:
The 16,170 downloads that he got for this paper have enabled the author to rise to the top of the Social Science Research Network's rankings for legal scholars with the most downloads over the last 12 months. When I post my next paper on SSRN, I'm going to have to seriously consider putting some words in the title that can't be repeated on a family-oriented blog such as the VC! Failure to Warn:
California Court of Appeal Justice William Bedsworth reports:
Note that the claim that the bed was defectively designed because it lacked a guardrail had been dismissed earlier, and the failure-to-warn claim is all that remained. The opinion is here; thanks to How Appealing for the pointer. Monday, October 2, 2006Federal District Court Strikes Down Parts of Funeral Picketing Ban,
in McQueary v. Stumbo (E.D. Ky. Sept. 26, 2006) (Caldwell, J.). The challenged provision, 2006 Kentucky Laws Ch. 50, sec. 5, read:
The court held that, though this provision should be analyzed under the law governing content-neutral speech restrictions, and though the court "that the state has an interest in protecting funeral attendees from unwanted communications that are so obtrusive that they are impractical to avoid," the law is unconstitutional, partly because the 300-foot buffer zone is too large. I think that's largely right, for reasons described here. Related Posts (on one page):
Congress outlaws gun confiscation during disasters or emergencies:
This weekend, Congress passed, and sent to the President for his signature, the Homeland Security appropriations bill, H.R. 5441. The Conference Report of the bill includes a variety of non-appropriations measures to enhance homeland security. The most notable of these is the construction 700 miles of fence along the portions of the Mexican border which are the main transit zones for illegal aliens. Also included in the legislation is a ban on gun confiscation during emergencies and natural disasters, to prevent a repeat of the post-Katrina abuses such as law enforcement officers breaking into homes and confiscating firearms from law-abiding citizens. SEC. 557. Title VII of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5201) is amended by adding at the end the following: SCOTUSBlog's New Look:
For the new Supreme Court term, SCOTUSBlog has unveiled a new look with new features. Assessing the 109th Congress:
The lead editorial in today's WSJ assesses the record of the 109th Congress, and it isn't pretty:
The editorial notes that some of the Republican majority's difficulties were due to a slim margin, Democratic obstructionism, and public discontent over the war in Iraq -- but these factors only explain so much.
If Republicans lose control of Congress, they'll have no one to blame but themselves. Related Posts (on one page):
Sunday, October 1, 2006Mark Steyn Visits Gitmo.--
After recently visiting Gitmo, Mark Steyn writes a column focusing only on the positive side of treatment there. But in the course of his seemingly one-sided presentation, he makes a thought-provoking observation (tip to Betsy):
As someone who has visited a couple dozen jails and prisons over the years (including taking my students in two small seminars to two different federal prisons), I never got the sense that I could judge what life was like from just visiting. One of my mentors, the late University of Chicago Professor Norval Morris, used to recommend that I spend a weekend locked up in Stateville, which Steve Goodman in a song once called "the charm school in Joliet." Another of Morris's proteges told me that when he did this, the inmates started hassling him — and then challenged him to tell them what he was doing there. When he said that Norval had told him to spend a weekend in prison, the inmates suddenly became friendly, assuring him that, "Any friend of Norval's is a friend of ours." Some prisons or jails that I visited were somewhat superficially dormlike (but of course with smaller windows and more locks), like the federal prison in downtown Chicago when I visited about 1980. Some were grim on their face, such as Stateville. The only one that was just horribly oppressive on entering was the early 1970s old Cook County Jail, which was filthy and stank more than any building for human beings that I've ever been in. The Consequences of De-Evolution in Education:
Paul Hanle of the Biotechnology Institute argues that the push to marginalize evolution and teach "intelligent design" in the classroom is threatens real-world consequences, and not just in the classroom.
Hanle makes the case that the attack on evolution has real consequences for student achievement in science.
But, Hanle stresses, the issue is not one of "religion" versus "science" -- but ideologically motivated non-science versus science.
I would urge commenters to resist the urge to re-open the "is Intelligent Design science" debate, and instead focus on the question whether the teching of ID and/or exclusion of evolution has an negative impact on scientific literacy, student achievement in science, and (by extension) the scientific research and discovery in the nation as a whole. Specter on the Senate's Workload:
From Robert Novak's latest column:
Related Posts (on one page):
Sunday Song Lyric:
In the late 1940s, Miles Davis organized a nine-person band to record some tracks for Capitol Records. The tracks had a different sound than the be-bop that was dominating jazz at the time, and are credited with helping to launch "cool jazz." Indeed, several of the sessions, mostly recorded in 1949 and 1950, were compiled for the album Birth of the Cool. Featuring Gerry Mulligan, Max Raoch and Lee Konitz, among others, perofrming Gil Evans arrangements, this is one of Miles Davis' many great albums. It is also one of the few to feature a vocal performance, James van Heusen and Edgar DeLange's "Darn that Dream" (although this track was not added until later printings of the album). The song was also recorded by many others, including Billie Holiday, and is today's Sunday Song Lyric. Darn that dreamUPDATE: I've corrected the lyrics to reflect how they are actually sung on "Birth of the Cool," as oppose to how they were sung by others. Thanks to readers for the corrections. Saturday, September 30, 2006Cut Off the Head of the Pig Who Says Our Religion "Exalts Violence and Hate" !:
AFP:
UPDATE: By the way, I don't think that Islam, as such, is necessarily more prone to violence and intolerance than other religions; my own European Jewish ancestors overall likely suffered far more under Christian regimes than my wife's Iraqi Jewish ancestors suffered under Muslim regimes. But the radical, fascistic Islamist movement is to Islam as the radical fascistic "Christian Identity" movement is to Christianity--a perversion of the religion in the name of a supremacist, violent ideology. [Of course, modern Christianity is much more cuddly than modern Islam, but that's a result of secular ideologies, such as separation of church and state, taking hold, thus privatizing religion, not because politicized Christianity is inherently cuddly. For example, it was only one hundred or so years ago that the Tsars stopped kidnapping ten year-old Jewish boys and sending them to the army for twenty years in order to Christianize them, 150 or so years ago that the Pope enthusiastically endorsed taking an Italian Jewish child away from his parents because his Catholic nanny had secretly converted him, and only a couple hundred years earlier that the Thirty Years War fought in the name of sectarian Christianity slaughtered a good percentage of the European population.] FURTHER UPDATE: My understanding is that modern Islamism, at least its Sunni variation, descends from Muslim Brotherhood ideology, and that the Brotherhood was itself modeled on European fascist movements, thus "fascistic" is an appropriate moniker. There was a time in world history when Islamic societies were relatively advanced and tolerant, and Christian societies relatively backward, violent, and intolerant. Religions with long written and oral traditions can be used and misused in any number of ways by those who seek to use them for political ends. One commenter mentioned the late Rabbi Meir Kahane, whose movement in Israel was indeed an analogue to Christian Identity. I suppose it's wrong to say that fascistic Islamism is a "perversion" of Islam, because there is no such thing as "official" Islam. Rather, it's one way of interpreting Islam for those who seek to use it to political ends, but, as a practical matter, it's no more an inherent element of Islam than the Inquisition was an inherent element of Christianity. And I get impatient with those who quote the Koran. You can quote the Torah and discover that Judaism is a genocidal religion (at least with regard to the inhabitants of the Land of Israel) that also demands, among other things, executing anyone who violates the Sabbath. And indeed you can find a lunatic fringe that still believes in such things, but the mainstream of the religion has evolved well beyond this. Oral tradition (which itself eventually gets written) has thousands of way to accommodate ancient religious dictate to modern liberal society, if one is inclined to do it. One is left to hope that fascistic versions of Islamic interpretation will lose out largely through internal rejection, and not, as may seem more likely today, through military confrontation with the West. When Not to Talk to the Media?:
You're the president of the National Association of Realtors, and in the real estate business yourself. The house you've been trying to sell for $1.45 million has been sitting on the market for a year, and you've already moved to a new residence. The agent you hired to sell your house advised you to drop the price, but you refused. Meanwhile, over the last year, nominal prices have gone down, especially on upper-price-range homes, probably at least 10%. So you've lost interest or capital gains on $1.45 million, and you're still trying to get a price that you couldn't get in a stronger market, and that your own agent tells you is unrealistic. Do you give an interview to the Washington Post, explaining all this? I'd say no, but the answer is apparently "yes." What Are These?
The answer is here; there's a controversy about whether something like this:
should be included as well. "Quackspertise" in State Courts:
I have an op-ed on this subject in today's Wall Street Journal. The theme is that state courts are lagging well behind federal courts in excluded dubious expert testimony in civil casess. I'll post a link if and when it's available online (those with access to Factiva through their university can find it there). I use the neologism "quackspertise" as a substitute for "junk science." Becaue the latter only applies only to science, it's a narrower concept than quackspertise, which appliess to any quackery in the guise of expertise. Friday, September 29, 2006Ineffectual Eminent Domain "Reform" in California:
California Governor Arnold Schwarzenegger recently signed into law five almost completely ineffectual post-Kelo eminent domain reform laws. Tim Sandefur of the Pacific Legal Foundation has a series of excellent posts that explain in detail why these laws do almost nothing to curb eminent domain abuse in California (here is the first of his five posts). Unfortunately, as I have explained here, here, and here, the enactment of post-Kelo reform laws that look impressive to the public, but actually achieve nothing, is all too common. Indeed, several of the subterfuges in the new California legislation could have been taken right off my list of "Common Problems in Post-Kelo Reform Legislation." A particularly serious problem in the California law is the fact that local governments are still permitted to condemn "blighted" property under a definition of blight that is broad enough to encompass almost any neighborhood. As I explain in a recent Legal Times article, this pitfall is one that bedevils post-Kelo reforms efforts in many states. Quoting myself is rarely a good idea. But what I said in June about President Bush's equally vacuous executive order on takings also applies to the new California laws:
Finally, I do have a minor quibble with Tim's analysis of Senate Bill 1650, the one part of the new California legislative package that he concludes may have "some actual teeth." This Bill requires that condemned land "only be used for the public use stated in the resolution unless the governing body...adopts a resolution authorizing a different use...by a vote of at least two-thirds of all members of the governing body." As Tim explains, the purpose of this provision is to prevent the use of bait-and-switch tactics under which the government can justify a condemnation in court by claiming a legally unassailable public use and then turn around and use the property for more dubious purposes. I agree that Bill 1650 provides a marginal increase in protection for property owners. However, these kinds of abuses are to a large extent already forbidden by the Kelo decision, where the Supreme Court reiterated the longstanding rule that the government is "no[t] . . . .allowed to take property under the mere pretext of a public purpose, when [the] actual purpose was to bestow a private benefit." Kelo v. City of New London, 125 S.Ct. 2655, 2662 (2005). Bill 1650 provides a very small increment of added protection for property rights (it apparently covers sincere as well as purely pretextual changes in the use of condemned property), but basically it merely codifies the rule against pretextual takings contained in Kelo and earlier Supreme Court cases. In any event, given the very broad range of condemnations permitted under California law (including in the blight provisions of the new legislation noted above), local governments won't have to resort to pretexts in order to condemn any property they want for virtually any purpose. Legal Blogs by Topic:
Ian Best (3L Epiphany) provides yet another useful service:
Go to the post for a link to the directory. "America's Favorite Dictator":
Robert Pollock reports on America's troubling relationship with Pakistani General Pervez Musharraf. While the U.S. pushes for greater democracy in the Middle East, it is conspicuously silent about undemocratic "allies" in the region.
Are politically moderate judges and law clerks better?
In his recent Green Bag article, discussed in Orin Kerr's post, Prof. David Garrow, one of the country's top Supreme Court scholars, laments the fact Supreme Court clerks increasing come from court of appeals clerkships with "exceptionally liberal or highly conservative" 'feeder' judges, rather than with "equally well-respected but ideologically moderate jurists." The implication is that "ideologically moderate" clerks and justice are for some reason preferable to those who are "exceptionally liberal or highly conservative." Contra Garrow, I don't see any reason to believe this to be true. One possible reason to prefer moderate clerks and judges is that they are more likely to reach correct decisions. This, however, is definitely not Garrow's argument. After all, Garrow's own views on the substantive constitutional law are far from being moderate, as one can see in his scholarly work on substantive legal doctrine; see, for example, his well-known book on judicial protection of abortion and sexual freedom. This is not a criticism of Garrow (my own views are no more moderate than his are), but it does close off the most obvious possible reason for favoring centrist judges and clerks. Indeed, Garrow's preference for centrist clerks seems, ironically, to be a preference against clerks who share his own strongly liberal political and legal views! Instead of relying on the supposed correctness of their views, Garrow's preference for centrist clerks seems to be based on a belief that ideologically more extreme clerks (and possibly judges as well) are more likely to allow "disreputably partisan" considerations to influence their decisionmaking. If I interpret his argument correctly, Garrow is suggesting that committed liberals and conservatives are more likely to allow their policy views to influence their interpretation of the law than centrists. I see little reason to believe this. Garrow's analysis implicitly conflates having moderate views with not having any ideological commitments at all. In reality, however, moderates do have political views and partisan loyalties, and these views and loyalties may be just as strongly held as those of liberals, conservatives, and libertarians. In cases where the strict adherence to the law leads to ideologically extreme results, moderates may well be tempted to follow their policy preferences instead of the law - just as conservatives and liberals might in cases where the law leads to results they dislike. Indeed, in two important ways moderate jurists may be more prone to ideological judging than more extreme ones. First, moderate judges such as Justices O'Connor and Kennedy, are more likely to favor complex balancing tests than strong liberals and conservatives, who are more likely to favor bright line rules. Balancing tests tend to leave more scope for judicial discretion (and thus ideological decisionmaking) than rules do. Second, I suspect that moderates are less likely than comparative extremists to realize that their political preferences are the products of a contestable ideology rather than of simple, nonideological "common sense." Indeed, Garrow's own article partially endorses this fallacy, to the extent that he assumes that moderate views are, by nature, less "ideological" than extreme ones. Of course, if you believe that your views are just common-sense truths that only extremist wingnuts/moonbats could disagree with, you are less likely to be hesitant about imposing them on others through the use of judicial power. No More Raw Milk in Ohio:
The Ohio Department of Agriculture is clamping down on dairy farmers who enter into "herd-share" agreements in an effort to evade the ban on the sale of raw milk.
I am not a fan of raw milk myself, but I hardly think the state needs to go after those who are. I also think it is a reasonable assumption that anyone who goes through the trouble of entering a "herd-share" agreement is sufficiently aware of the risks of raw milk consumption that they do not need the state's "protection" from their own choices in this regard. Torture and Nuclear War:
As I've noted before, there are lots of things I don't blog about because I know little about them, I find them difficult, and they're quite important. Since I know little about them, I'm not sure I have much to add (but I have lots of opportunities to screw up). Since they're difficult, I don't think I can just give a quick answer from general principles. And since they're important, there's a good deal at stake in getting it right: An off-hand comment that might be right or might be wrong might cut it for a trivia question, but not for important issues. That's one reason that I've blogged very little about torture as a means of extracting information from suspected terrorists; the chief exceptions are here, here, and here. A lot of comments criticizing my (and others') not talking about the subject respond by challenging the "difficulty" element: Torture -- often defined to include a wide range of harsh interrogation techniques -- is just patently depraved, the argument goes; the ends don't justify the means; any decent person should be able to see that and denounce provisions that allow such techniques; end of story. But for me, this easy moralism just doesn't cut it. Perhaps after a great deal of thinking and research I might come around to this view. But I'm not prepared to accept it as a categorical, supposedly obvious moral assertion. (The theory that the means are sure to be ineffective is a separate matter. For reasons I noted in the posts linked to above, I'm unpersuaded of that as an empirical matter.) Here's what I keep coming back to in my head. I still remember, as I'm sure most of you do, the nuclear balance of terror. (It still exists today, but it's a less prominent issue than it was when I first started noticing the world.) The Soviets had nuclear weapons pointed at us, which included both our military installations and our cities. We had nuclear weapons pointed at their military installations and their cities. It was understood that if they annihilated one of our cities, we'd annihilate one of theirs. There was none of the carefully calibrated attack-only-military-targets approaches that we likely can afford to use in small wars. There was no serious provision for minimizing civilian casualties. One can come up with some defenses about most cities containing at least some militarily significant targets and the like, but let's face it: The real mechanism of deterrence was "you kill our people, we'll kill your people," both as to all-out nuclear attack and as to a more controlled "take out one city at a time until the other guy blinks" strategy. It was understood -- by Carter as well as by Reagan, by Kennedy as well as by Nixon -- that to keep the peace, we had to be prepared to slaughter millions of Soviet civilians. A few people did talk about unilateral disarmament, the only real way of avoiding the commitment to mass-butchery-should-the-need-arise. I don't think most of us took them seriously, for obvious reasons. Reagan, as I recall, did push missile defense as a means of avoiding the balance of terror, but even if you think that missile defense might work, the Reagan Administration certainly supported the balance of terror as acceptable doctrine until missile defense could be created. One can imagine some alternative tactics, such as a pure counterforce rather than countervalue strategy -- if you bomb us, including our civilians, we'll only bomb your military targets. But I highly doubt that it would have worked. Would you say: Look, killing millions of civilians is just patently depraved, the ends don't justify the means, any decent person should be able to see that and denounce strategies that rely on the commitment to use such techniques; end of story? I know I didn't. Maybe I should have. Maybe after a good deal of reflection and research I would conclude that such a strategy should have been abandoned. But, boy, I'm not prepared to just say that as a matter of general moral principles, no matter how obviously heinous nuclear bombing of civilian targets might be. Now I don't want to overstate the analogy: The U.S.-Soviet balance of terror involved the willingness to do a vastly horrific act, in order to deter a vast harm, though fortunately a willingness that didn't have to be acted on. Harsh interrogation of detainees involves the actual doing of many bad things, in order to prevent a lesser harm, but the bad things are much less horrific than a retaliatory nuclear bombing. There are, I'm sure, lots of other differences. It may be that careful study would lead one to different answers in these two cases. But once our innocence is lost by our willingness to at least contemplate the balance of terror, it becomes very hard for me to just operate on a hard-line "I don't need to hear a lot of facts or arguments, the ends don't justify the means and that's that" approach. U of C Faculty Blog:
I'm going to be doing some occasional posting this fall at the University of Chicago Law School Faculty Blog as a
Cabs and Alcohol:
The Minneapolis Star Tribune reports:
The color-coding sounds like a good solution -- it lets cab drivers choose how to run their businesses, and it lets the airport provide its customers with the service they want. One can certainly imagine hypothetical situations in which such schemes would become too difficult to use; and I suspect that heavy government regulation of taxicabs (which I take it is present in Minneapolis, as it is in many other cities) causes extra problems here, because it sets up a barrier to entry. But given the situation as it is, some such mutual accommodation strikes me as quite sensible. What Hath Hamdan Wrought?
Jack Balkin has written this very interesting post on the just-passed Military Commissions Act of 2006. As he notes, the MCA is the political branches' response to the Supreme Court's Hamdan decision, but the MCA is unlikely to be the last word on the subject, as many provisions will be litigated. As Balkin writes: "Although it may seem that the Supreme Court doesn't have the last word on these questions, the Congress and the Executive Branch don't either." Defining the Limits of Interrogation:
My colleague, Amos Guiora, director of the Institute for Global Security Law and Policy at Case thinks that too little attention has been paid to the precise limits of interrogation techniques that can be used on terrorist suspects. "Elusive concepts are a recipe for disaster," he argues, so it is necessary to engage in a difficult (and unpleasant) line-drawing effort. This issue is not only a question of morality, but also has practical legal implications for those on the front-line of counter-terror efforts. Amos had an op-ed in yesterday's Cleveland Plain Dealer outlining his view of the proper boundaries for the interrogation of terrorist suspects. Here's an excerpt: So what is coercion in the context of interrogating terrorists? On one extreme, it precludes torturing the terrorist. Torture is illegal, immoral and does not lead to actionable intelligence.Amos' perspective is no-doubt influenced by his 19 years in the Israeli Defense Forces, where he had far more direct experience with counter-terrorism operations than anyone else I have seen expound on this topic. He has devoted years to thinking about these issues, and understands (in away that most academics do not) the practical implications of different policies and approaches. These are not just abstract moral questions, and the answers have real-world consequences. As I understand Amos' view, he believes techniques that disorient a suspect are acceptable (if done pursuant to clear guidelines), but anything that would cause actual physical or psychological harm is off limits. Does Amos strike the right balance? I am not sure. On the one hand, I do not believe foreign terrorist suspects are entitled to the same treatment as criminal suspects. On the other hand, I am uncomfortable with the prospect of subjecting innocents who are wrongly detained to such techniques -- which can be significantly more severe than the above description might suggest. It is easy to proclaim one's opposition to "torture." It is more difficult to delineate those interrogation techniques that should or should not be allowed in the counter-terrorism context, especially once one gets beyond the extreme hypotheticals (ticking bombs, etc.) found more often on the set of "24" than in the real world. I find this to be a difficult question (as, I gather, do those who make broad pronouncements on the issue without engaging in the particulars), so I appreciate the perspectives of those, like Amos, who have wrestled with these questions in a real-life context. Thursday, September 28, 2006Blogging, Expertise, and Comparative Advantage - Or, why I don't blog about torture and the detainee Bill:
Orin Kerr's post and the comments to it raise the question of why we haven't blogged about the detainee bill and the debate over torture. I can't speak for anyone else, but in my case, I try to limit blogging to issues where I have a comparative advantage: that is, questions on which I can say something useful or interesting that is unlikely to be said by others. I do not regard the VC as a forum for me to air all aspects of my world view, or even all of my views on contentious political issues. Little purpose is served by my simply repeating the same points on torture, detention or any other issue that have already been made by dozens of others. Moreover, I take seriously the implications of some of my own scholarly work on political ignorance. Merely knowing a few basic facts that can be gleaned from perusing a newspaper is not enough knowledge to conclude that I have something original and important to say about an issue, except in very rare cases where the issue in question is unusually simple. My experience as an expert on political information is that there are far more issues that are more complex than most nonexperts believe than the reverse. In this regard, my general expertise on political information helps me keep tabs on my lack of expertise on specific issues. For these reasons, I try to limit my posts on political issues to the following three categories: 1. Issues on which I am an expert (primarily political participation, federalism, and property rights). This is where I have the greatest chance of making an original contribution. 2. Issues on which I'm not officially an expert, but have a lot of knowledge because I follow them closely (i.e. - far more closely than merely reading occasional articles about them in the media or online). 3. Rare cases that fall outside of 1 and 2, where I come up with an original point that other commentators have for some reason ignored. The issues of torture and detention do not fall into any of these three categories, so I don't blog about them. The case of torture is a good example of the limits of my knowledge. For the reasons outlined by Charles Krauthammer, I do not believe that torturing captured terrorists to obtain information is always wrong as a matter of principle. But I don't have anything original to add to his moral argument, so I haven't blogged about it. In any event, I don't think that arguments about intrinsic morality are enough to resolve the issue. To me, the crucial question is whether we can effectively confine the use of torture to the rare cases where I believe it to be justified and prevent it from "spilling over" onto non-terrorist prisoners (as probably happened at Abu Ghraib), ordinary criminals, or even innocent civilians. A second important question is that of how much valuable information can really be obtained through torture that we could not get otherwise. Because I don't know enough to give a compelling answer to these two crucial questions, I don't have anything useful to contribute to the debate over the issue. UPDATE: The one relevant point that I think has been neglected in the debate is the impact on our enemies' incentive to surrender. If enemy fighters believe they will be tortured if captured, they have a stronger incentive to fight to the death rather than give up; none of the articles I've read on the subject considers this aspect of the matter, though perhaps someone has written a piece on it that I have missed. This consideration counsels against the use of torture, or at least in favor of strictly limiting that use. But I don't think it's enough to resolve the debate by itself. Related Posts (on one page):
The Military Commissions Bill, and A Note on Blogging Topics:
Congress is very close to passing a bill on military commissions to try terrorist suspects, which amounts to Congress's response to Hamdan v. Rumfeld. The bill text is here.
In the comment thread in a recent post, a number of commenters took the VC's blogggers to task for not blogging about the bill and its predecessors. Here's a taste: (1) Scrolling down through the Volokh Conspiracy over the past few days, I'm wondering if you guys have ANYTHING TO SAY ABOUT THE ABOLITION OF HABEAS CORPUS for anyone (foreign or US) whom the executive branch believes has "supported hositilities against the United States." . . . . Don't you lawyers have anything at all to say about this? Any opinions at all?I can't speak for anyone else, but here are a few thoughts of my own in response. First, I would really like to blog some expert commentary about these bills. But there's a problem: I don't know much about them. I have read what others have said about them, and occasionally link to commentary that seems particularly good (to the extent I can tell). I recently looked over the latest text to get a feel for what the bill is trying to do. But I haven't followed this area closely enough, as I've been busy with other stuff like my book that's about to come out, a few articles I'm writing, some pro bono cases, teaching classes, advising students, moving to Chicago for the semester, blogging about other things, and, well, life. I don't feel comfortable pretending that I know more than I do about the detainee legislation, so I haven't blogged much about it. Plus, from a normative perspective, I always get hung up in this area on deciding what baseline to use. Opponents of the bill tend to measure the rights afforded under it in comparison to the rights of U.S. citizens facing criminal charges, but it's not clear to me that's right — and not clear to me how to choose between that baseline and others. Then there are all the empirical questions about what techniques actually work, predictive questions like how the trials will work in practice, what the effect to different language in the bill might actually be, what the Supremes might do, what the alternatives are, etc. Some people know the answers to all of these questions, or at least think they do, but I feel a lot less confident. Of course, whether my uncertainty reflects an appropriate awareness of my limitations, excessive caution, or moral depravity is a judgment left to the reader. Related Posts (on one page):
Pet Law:
A California Court of Appeal decision (People v. Quintero) reverses, on state law grounds, a probation condition requiring that the probationer (who had been convicted of methamphetamine possession) "[k]eep the probation officer informed of place of residence, cohabitants and pets, and give written notice to the probation officer twenty-four (24) hours prior to any changes. The court applied the California Supreme Court's test for probation conditions -- "A condition of probation will not be held invalid unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not related to future criminality'" -- and reasoned that all three elements were satisfied. The dissent argued that the condition was nonetheless valid because it helped protect the probation officer against surprising encounters with the probationer's possibly dangerous pets. But, much more importantly, the dissent also provided the first judicial citation that I could find to cuteoverload.com. LEXIS Search Tip:
When searching through law review articles by the author's name, don't use AUTHOR(xxx), which will also find references to xxx in other authors' thank you footnotes. Instead, use NAME(xxx), which will, in my experience, just find xxx in the author's name field. Supreme Court Docket Reports:
Since Orin mentioned Baker Botts' excellent SCt Today, I thought I'd pass along Mayer, Brown, Rowe & Maw equally (though differently) excellent Supreme Court Docket Report. (Mayer is the firm at which I'm an academic affiliate.) If you want to subscribe to their e-mail delivery service, just e-mail SupremeCourtDocket at mayerbrownrowe.com. English Charges Against Anti-Homosexuality Leafletter Dropped:
The Telegraph (UK) reports:
Seems to me that some of the quotes from the Bible (e.g., calling same-sex sex an "abomination" or "vile affections") might indeed "be said to be insulting." Yet leaflets containing insulting ideas are an important part of public debate in a democracy as well as leaflets containing inoffensive ideas. Thanks to Eric Rassbach for the pointer. Related Posts (on one page):
Hear the Moral Testimony of the Immune System:
I was just reading leading conservative bioethicist Leon Kass on organ transplants — he reluctantly approves of them generally, but categorically rejects any compensation for organ providers (compensation for the organ transplanters is just fine). Here's one paragraph that particularly struck me; recall that this isn't just psychological description, but part of a broader moral argument:
This is poetry, it seems to me, not argument. The images and concepts are vivid enough, but the logical connections seem to be to missing. The self-consciously self-contradictory metaphor of "the silent body speaks up" exemplifies it best. If you really "listen" to what the silent body "says," you'll hear it speaking up against:
To the extent the body "speaks," it doesn't speak about what is right. It speaks about what is likely to happen. We should "listen" to it, but in order to make our interventions more effective, not in order to decide what is morally right or wrong. This is, I think, a variant of the Is-Ought problem, with a dollop of coming to believe one's own metaphors. A procedure is physically dangerous; therefore it ought to be seen as morally troubling. A procedure is revolting to many people (as are prostate exams, I suppose, or changing diapers); therefore we ought to assume that it's presumptively improper. If we'd consistently adopted such an approach, in what century would medicine be stranded? UPDATE: My favorite comment so far, from commenter Dave Griffith: "As someone with an auto-immune problem, I presumably am passing histological moral judgements against myself. I'll admit it's probably a fair cop in my case, but that's beside the point." Perspectives on Prosecuting the Press:
The latest issue of the National Security Law Report, published by the ABA Standing Committee on Law and National Security, is now available online. It includes six essays on whether journalists can or should face prosecution for publishing leaked classified national defense information. The contributors include Geoffrey Stone, Gaberiel Schoenfeld, John Eastman, Kate Martin, Bryan Cunningham, and myself. All Related Posts (on one page) | Some Related Posts:
A "Do-Nothing" Senate?
The Senate is planning to adjourn this weekend, giving those Senators seeking reelection over a month off to campaign. This is quite early. Indeed, as noted on ConfirmThem, this will be the earliest the Senate has adjourned in an election year in thirty years (if not more). Congress maven Norman Ornstein further observes:
Of course, this is not necessarily a bad thing. I am generally sympathetic to the view that Americans are safer when Congress is out of session. On the other hand, there are matters worthy of further Congressional consideration, from the detainee-treatment and NSA surveillance legislation (which may well keep Congress in schedule later than its leadership had planned) to the confirmation of federal judges (some of whom have been waiting, literally, for years). Related Posts (on one page):
Kids Today -- The Arrival of "The Millennials":
Over at law.com, Hofstra Law librarian Tricia Kasting has an essay for law school staff and instructors on the psychology of the new generation of law students, dubbed "The Millennials." According to Kasting, and a lot of high-paid consultants, "Millennials" are the replacement for "Generation X" and are different from the Xers:
Millennials are those with birth years 1982 to roughly 2002. They are a larger group than the Boomers, and they are the most diverse generation ever. The core personality traits are: special, sheltered, confident, conventional, team-oriented, achieving and pressured.So here's the question: Are these changes real? I tend to think not, but then I'm pretty skeptical about claims of generational change. My pet theory is that the baby boom generation really was different, and focus on the baby boomers forty years ago created a market for and interest in these sorts of generalizations even if they're not supported by particularly strong evidence. Plus, I would guess that as we get older and relate less to recent college grads, we want to come up with an explanation for that distance that puts the responsibility on them, not us. (In other words, the subtext of such narratives is that if kids today strike you as weird, it's them, not you.) This isn't to say that times don't change; technology can shape social experience, and those growing up with new technologies naturally have a different relationship to it. But I guess I'm pretty skeptical that "the Millennials" are much different from "Generation X," or that "Generation X" was much different from whatever you want to call the generation before that. I tend to think that for the most part, people are just people. Thanks to JD2B.com for the link. UPDATE: I should point out, for the sake of full disclosure, that I am a member of "Generation X." So if you think I'm wrong in this post, please understand that this is the best effort of a slacker with a short attention span who doesn't care about anything and is in search of himself. Federalist Society panel on Andersen v. King County:
I'll be in Seattle on Monday speaking on a panel entitled, "The Defense of Marriage Act Decision: The State of Same-Sex Marriage After Andersen v. King County." Also on the panel will be lawyers representing the contending sides, Steven O'Ban (pro-DOMA) and Bradley Bagshaw (anti-DOMA). The moderator will be David Postman, a political reporter and columnist for the Seattle Times. The panel will be at 6:30-8:30 p.m. at the Washington Athletic Club. Cost is $25, with CLE credit. If you want to go, RSVP to Diana Kircheim at 425-453-6206 or dianak@gsklegal.pro. Should be interesting. The Housing Market and the Economy:
Liz Ann Sonders, Chief Investment Strategist, at Schwab, has an excellent summary, complete with neat charts, of the state of the housing market, the current outlook, and the potential ramifications for the economy as a whole. In short: not a pretty picture. This chart (click for larger view), in particular, is worrisome if one is invested in equities.  Wednesday, September 27, 2006Text as Obscenity:
The AP reports:
It sounds like the stories were pure text, with no pictures (or at least no sexually themed pictures). Obscenity prosecutions based on text are very rare, but they are in theory permissible under the "describes" aspect of the famous Miller v. California obscenity test: A work is unprotected if
Thanks to reader Michael Bavli for the pointer. |
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