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Posted by Eugene Volokh: Dick Durbin a href=http://thepoliticalteen.net/2005/06/21/1756/;Apologizes/a, http://volokh.com/archives/archive_2005_06_19-2005_06_25.shtml#1119398503 or does he really? ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Eugene Volokh: a href=http://nationalreview.com/seipp/seipp200506210815.asp;Cathy Seipp in Top Form/a: http://volokh.com/archives/archive_2005_06_19-2005_06_25.shtml#1119398700 The subject is social class, seen through the lens of some new TV programs -- a characteristically funny and insightful NRO article from Cathy. ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Juan Non-Volokh: Nazi Germany = McCarthy Era = America Today? http://volokh.com/archives/archive_2005_06_19-2005_06_25.shtml#1119296350 At the end of a [1]long post on whether President Bush can be impeached (in which he labels UNC Prof. Michael Gerhardt a shill for the Bush Administration for his contribution to [2]this Salon symposium) Brain Leiter offers this somewhat tangential comment: in every society of which I'm aware the vast majority of the preeminent academic figures were, in general, cowards when it came to their own regimes, and apologists for what later generations would see clearly as inhumanity and illegality. This was clear in Germany in the 1930s, as it was in America in the 1950s. There is no reason to think the United States today is any different. (Emphases in original). While this statement might not equate Nazi Germany with the current regime, it certainly suggests an equivalence between those who failed to oppose Nazism, those who failed to oppose McCarthyism, and those who do not oppose the Bush Administration. Haven't we had enough of these sorts of comparisons? References 1. http://leiterreports.typepad.com/blog/2005/06/can_bush_be_con_1.html 2. http://www.salon.com/opinion/feature/2005/06/09/impeachment/index_np.html ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Orin Kerr: Skeptical About Alleged DOJ Data Retention Plan: http://volokh.com/archives/archive_2005_06_19-2005_06_25.shtml#1119308361 A few days ago, over at [1]news.com, Declan McCullagh made a troubling but very probably false claim: The Department of Justice is quietly shopping around the explosive idea of requiring Internet service providers to retain records of their customers' online activities. Data retention rules could permit police to obtain records of e-mail chatter, Web browsing or chat-room activity months after Internet providers ordinarily would have deleted the logs--that is, if logs were ever kept in the first place. No U.S. law currently mandates that such logs be kept. It is quite unlikely that this claim is true. Privacy advocates have been expressing concern for years that there are secret DOJ plans to mandate ISP data retention. When asked, however, DOJ officials repeatedly have made clear that such a proposal is out of the question. What is the evidence that times have changed, and that now DOJ is quietly shopping around this explosive idea? As best I can tell from Declan's story, it is this and only this: A few weeks ago, at a Holiday Inn in Alexandria, Virginia, unnamed Department of Justice employees, apparently from DOJ's Child Exploitation and Obscenity Section (CEOS), mentioned the possibility of mandatory data retention requirements in a meeting with some ISP representatives. Who are these DOJ employees, though? CEOS does not have any high-level policy makers, as far as I know. It is a section consistening entirely of career prosecutors. No one at CEOS has the authority to opine on such a enormous and controversial question except entirely in his personal capacity. And the chances that DOJ would decide to shop around such a high-profile proposal using career lawyers meeting at a Holiday Inn seems a bit far-fetched. If I had to guess, I would imagine all that happened in this meeting was that a random career lawyer at DOJ had been wondering about data retention, and decided to discuss it as a possibility in a meeting despite DOJ policy to the contrary. Or perhaps the lawyer foolishly tried to raise the possibilitz as a threat to push ISP representatives to think more seriously about voluntary data retention. Either way, DOJ has not changed its policy at all. Is it possible that there is more to the story than that? Yes, but on the whole it is quite unlikely. I have enabled comments. As always, civil and respectful comments only. Thanks to Ran Barton for the link. References 1. http://news.com.com/Your+ISP+as+Net+watchdog/2100-1028_3-5748649.html ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Orin Kerr: Investigation of Schiavo's 1990 Injury: http://volokh.com/archives/archive_2005_06_19-2005_06_25.shtml#1119191180 In a letter to County State Attorney Bernie McCabe, Florida Governor Jeb Bush has asked state prosecutors to look into the circumstances of Terri Schiavo's collapse in 1990. McCabe has agreed to open an investigation. I'm no expert in the statute of limitations provisions of Florida criminal law, but I gather the major crime that could still be prosecuted that far back would be homicide or attempted homicide. What's the case that Schiavo's 1990 collapse might have involved a homicide or attempted homicide? According to [1]press reports, the key is a possible delay between when Michael Schiavo found Terri collapsed and when he called the paramedics: In a 2003 interview on Larry King Live, Michael Schiavo said he heard his wife fall around 4:30 a.m., the same time he told the medical examiner's office. Later, during the 2000 trial on his wife's end-of-life wishes, he said he heard a thud and rushed to find his wife lying in the hallway at about 5 a.m. Yet according to the autopsy report, paramedics weren't summoned until 5:40 a.m. In light of this new information, I urge you to take a fresh look at this case without any preconceptions as to the outcome, Bush wrote to McCabe. Mrs. Schiavo's family deserves to know anything that can be done to determine the cause and circumstances of her collapse 15 years ago has been done. Although Gov. Bush's letter apparently isn't clear on this, I gather his theory is that perhaps Michael Schiavo attempted to kill Terri Schiavo back in 1990 by intentionally failing to call the police for 40-70 minutes after she collapsed. I'm not sure that's the theory, actually, but that's my best guess. I recognize that the Schiavo case is a terribly sad and emotional topic. But assuming I am right about Gov. Bush's theory, I think it's worth noting how implausible that theory is from the standpoint of trying to make out a criminal case. As I understand it, the theory would require that Michael Schiavo: a) wanted Terri Schiavo to die, and intentionally decided to wait 40-70 minutes before calling the paramedics; b) didn't wait until the morning to call to make sure she was dead, but instead waited only 40-70 minutes and then called at the unusual hour of 5:40 am; and c) later decided to go on Larry King Live where he announced the key piece of evidence against himself by giving the time of the collapse as 4:30am instead of 70 minutes later. How likely is that? Have I misunderstood Bush's letter, or the evidence? Or am I wrong in thinking the cases is being investigates as a possible attempted murder? Or am I wrong that this theory seems quite implausible? I have enabled comments. As always, civil and respectful comments only. References 1. http://www.nationalledger.com/scribe/archives/2005/06/gov_jeb_bush_se.shtml ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by David Kopel: Media Ignores African Genocides: http://volokh.com/archives/archive_2005_06_19-2005_06_25.shtml#1119198861 That's the thesis of my latest [1]media columnfor the Rocky Mountain News. The column points out the media's failure to cover the Ethiopian genocide against the Anuak people, the severe undercoverage of the genocide-by-starvation in Zimbabwe, and minimal attention to the disaster, including genocide, in the Democratic Republic of the Congo. That the Sudanese genocides in the south Sudan (against black African Christians and animists), and in west Sudan (against black African Muslims in Darfur) have received media attention is mainly because human rights activists, particularly Christian groups in the U.S., have forced the issue into the public's consciousness. The media are correct, I concede, in recognizing that most readers have scant interest in Africa. But I argue that in the case of genocide, the media have an ethical duty to keep the issue constantly in front of their audience. One reason the promise of never again has turned into the awful reality of again and again and again is that Third World genocide receives so little Western media attention. References 1. http://www.insidedenver.com/drmn/news_columnists/article/0,1299,DRMN_86_3864179,00.html ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Juan Non-Volokh: More Faked Memos?!? http://volokh.com/archives/archive_2005_06_19-2005_06_25.shtml#1119198977 Two years ago, few would question the veracity of news reports based upon leaked government documents. Not anymore. After the 60 Minutes scandal over the fake but accurate Bush National Guard memos, charges that leaked documents are more difficult to dismiss. For example, I don't know quite what to make of [1]this. References 1. http://www.captainsquartersblog.com/mt/archives/004746.php ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by David Kopel: What Guantanamo is Really Like: http://volokh.com/archives/archive_2005_06_19-2005_06_25.shtml#1119201773 Senator Richard Durbin has been justly mocked for his statement about what an FBI reported seeing at Guantanamo: If I read this to you and did not tell you that it was an FBI agent describing what Americans had done to prisoners in their control, you would most certainly believe this must have been done by Nazis, Soviets in their gulags, or some mad regime -- Pol Pot or others -- that had no concern for human beings. The more plausible analogy to Guantanamo is British interrogation of Irish Republican Army suspects in the early 1970s. Then, the British extracted confressions through the five techniques: wall-standing, hooding, continuous noise, deprivation of food, and deprivation of sleep. The European Court of Human Rights, in the 1978 case [1]Republic of Ireland v. United Kingdom, ruled that the techniques did not constitute torture, but were inhuman and degrading, in violation of Article 3 of the [2]European Convention on Human Rights. The European convention obviously does not apply to the American interrogation of Arab or Afghan terrorist suspects at a military base in Cuba, but there are still plausible objections that can be raised against coerceive interrogations, even when the persons being interrogated are terrorists. Serious discussion about Guanatamo would be enhanced by looking to appropriate historical analogies (such as the U.K.'s self-defense in the 1970s against the I.R.A.), rather than to absurd analogies, such as those drawn by Senator Durbin, which trivialize the Holocaust, the Soviet genocide, and the Pol Pot genocide. References 1. http://www.lawofwar.org/Ireland_v_United_Kingdom.htm 2. http://www.hri.org/docs/ECHR50.html#C.Art3 ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Eugene Volokh: What To Do If You Get Leaked Government Documents: http://volokh.com/archives/archive_2005_06_19-2005_06_25.shtml#1119224726 I express no opinion about the bottom line of the Downing Street retyping matter, but I did want to speak to [1]one small item raised by USS Neverdock: It appears the originals may still exist after all. Raw Story has this tid bit: I first photocopied them to ensure they were on our paper and returned the originals, which were on government paper and therefore government property, to the source, he added. [...] It was these photocopies that I worked on, destroying them shortly before we went to press on Sept 17, 2004, he added. Before we destroyed them the legal desk secretary typed the text up on an old fashioned typewriter. Smith appears to be tripping up here. He says he returned the originals because they were on government paper and therefore government property. So, photocopying a page out of a book makes the words no longer the property of the author? Actually, if you get a government-owned government-written document in the U.S., and you want to print something from it, copying it and returning the original makes sense. First, it is not a violation of the government's property rights for you to copy the material; under U.S. law, government-written documents aren't protected by copyright. Moreover, under U.S. law, it is generally not illegal for a newspaper to publish leaked classified documents (with, I believe, some exceptions), though it would be illegal for someone who got them in confidence to publish them. (One may also want to return the documents to help protect one's source, if the absence of the documents might implicate him in a way that the leak itself will not.) I realize that returning the originals may make it harder to authenticate the documents, and perhaps under some circumstances holding on to the originals may therefore be justified; but as a general matter, one isn't legally (or ethically) entitled to keep other people's or entities' physical property, even if one is free to publish copies of it. Second, it is illegal to hold on to the physical document, because that tangible piece of paper is indeed the government's property. Moreover, it would probably also be unethical to do hold on to those documents, for the same reason. My vague sense is that under U.K. law, the government does have copyright in government-written documents, but I suspect that (as in the U.S.) copyright is a narrower property right than the physical right to the documents; reprinting newsworthy copyrighted documents may under some circumstances be what U.S. law calls fair use. Also, it may be the case that U.K. law does prohibit the republishing of classified documents -- but a newspaper might not feel that ethically obligated to comply with this law, but might feel ethically obligated to comply with the law that bars keeping tangible items that belong to someone else. So I can't speak with complete certainty here as to what U.K. journalists are legally obligated to do; but in the U.S., it would make perfect sense -- both for ethical and legal reasons -- to return the originals even if one is publishing the copies. References 1. http://ussneverdock.blogspot.com/2005/06/britain-downing-street-memos-fake.html ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Todd Zywicki: Asking the Wrong Question on Global Climate Change: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1119103839 Ellen Goodman [1]writes today: The climate is equally apparent in the struggle over what the Bush administration calls climate change -- and everyone else calls global warming. The only way to justify doing nothing about global warming now is to deliberately muddle the science. It's not an accident that Philip Cooney, the White House official caught editing reports on greenhouse gases, left for Exxon Mobil, which has indeed funded doubts. Is it true that the only way to justify doing nothing about global warming now is to deliberatly muddle the science? I think the answer is quite plainly no. Even if it is true that global warming is occurring, this is only the first of many questions regarding whether we can justify doing nothing about global warming. Embedded in Goodman's assertion seems to be the implicit argument that if the scientific evidence shows that the global climate is warming, and if it is the result of human-induced factors, it follows that we must do something to try to reverse (slow?) global warming. Leave aside the scientific debate on the subject, and assume for a moment that the scientific predicate is correct. (the world is warming because of human influences). Even if this were true, the implicit syllogism still seems incorrect to me on several levels. First, assume that the Earth were warming for wholly natural causes, and that the effect was as dire as the worst-case predictions under the current scenario--the apocalyptic stories we read of famine, pestilence, and natural disaster. Would the fact that this warming were natural make any difference at all with respect to whether we should do anything? The answer seems obviously no. We never stand by and simply permit wholesale disaster simply because the cause of the disaster is natural. Floods, hurricanes, cancer, smallpox, polio, starvation, wild animals, influenza, AIDS, etc.--all of these things are natural, yet that fact does not stand in our way of trying to alter nature to prevent their harm to humans. So, if global climate change is occurring, the quetion of whether we should do something seems largely irrelevant whether it is caused by humans or naturally-occurring. So the real question to ask here is whether on net, the costs of doing something about global climate change outweigh the benefits of doing it. This is the same question we ask (or should ask) about every other intervention into nature--should we kill the parasites in water so that we can drink it, should we drain a mosquito-infested swamp to eliminate the risk of malaria, should we provide a vaccine to kill naturally-occurring smallpox. To imply that if the science shows we are changing the climate we must do something about it is as wrongheaded as it would be to say that if we are not contributing to global warming we should not do anything about it. On the question of whether global warming would be a net benefit or detriment to the planet, the evidence I have seen to date suggests that it is inconclusive. There will be impacts on crop yields, growing locations, forests, energy consumption, etc., that cut in many different directions. The question of whether the warming will occur equally throughout the world, or whether it will occur more strongly in the coldest parts of the world appears to also be unsettled, and has powerful normative implications for policy. To get bogged down in the science, and especially in causal questions, seems to me to be largely beside the point. Of course, this also shows why the precautionary principle is a non-starter as an intellectual construct. As I understand it, if the Earth was warming for natural causes and would nonetheless have the same effect as anthropocentric global warming, then the precautionary principle would tell us that we should not intervene to do anything about it, regardless of whether it might destroy us all. How can that possibly be an intellectually coherent position? Moreover, note that like global climate change, economic growth is path-dependent, so that if we make ourselves poorer today, we will be forever poorer as a result, and as a result will have less of the good things in life that we acquire through wealth (health, education, medicine, safety, terrorism control). So some number of people will die either way. I think we need to remind ourselves that the questions of whether the Earth is warming, and if so, why, are just the first question we need to ask ourselves. The real question is, if so, what should we do about it. My personal view, for what its worth, is that reading the literature by Rob Mendelsohn
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Posted by David Bernstein: Eight Circuit Judge Takes on the Community Rights Council: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1119114138 Doug Kendall of the Community Rights Council filed an ethics complaint against Sixth Circuit Judge Danny Boggs for serving on the board of FREE, a Montana-based free market environmentalist group that, among other things, runs education seminars for federal judges. Chief Judge Loken rejected the complaint, and [1]wrote, Reasonable people, unlike the complainant, do not presume a lack of integrity and impartiality from a judge's association with legitimate judicial education, no matter how controversial. And later (alluding also to related allegations against D.C. Circuit Judge Doug Ginsburg): there is no factual foundation to support an inference of wrongdoing by anyone ... Rather these allegations typify the character assassination that is all too common in our nation's capital By use of this tactic, it is the complainant who is undermining public confidence in the integrity and impartiality of the judiciary, not the judges complained of. Ouch! [Full disclosure: the president of FREE once asked me to draft a memo for him on Daubert, noting that he was considering inviting me to speak on that topic at one of their judicial seminars. I did the work for free, but never got invited to speak. CRC [2]has been critical of George Mason's Law and Economics Center, which provides Summer research money to me, and from which I have received other remuneration, though never related to the judicial education programs CRC criticizes. Judge Ginsburg is a faculty colleague at George Mason, where he serves as a Distinguished Adjunct. Doug Kendall and I were summer associates and associates together at the same law firm; we had relatively little, but cordial, contact.] References 1. http://legalaffairs.org/howappealing/061305.html#003605 2. http://tripsforjudges.org/LEC.html ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Orin Kerr: Chief Clerk Reunion: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1119122823 Charles Lane of the [1]Washington Post has the scoop on last weekend's reunion of Rehnquist's former law clerks. References 1. http://www.washingtonpost.com/wp-dyn/content/article/2005/06/17/AR2005061701225.html ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Todd Zywicki: It's Official: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1119126930 I'm now a [1]Dartmouth Trustee. References 1. http://www.dartmouth.edu/~trustees/ ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Randy Barnett: Comment on Contracts Conference: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1119016889 I did not receive very much feedback on my live blogging of the AALS conferences on contract law. So I decided, as an experiment, to open comments on this post so readers have a single place where they can react to the previous posts on all six panels (which are chained to this post). Did you find such blogging to be worthwhile? (Negative opinions on this are welcome, if civil.) Do you have any reactions to the topics of the various panels? Etc. ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Todd Zywicki: More on Filibuster Deal Fall-Out: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1119018750 I [1]noted the other day that I had heard some rumors of criticisms of home-state backlash against some of the architects of the filibuster deal fall-out. Some have raised the fair point that some of the criticisms that I linked to in that post may actually be more about ideological views on votes on judges than the filibuster deal itself, especially for Democrats who signed onto the deal. A reader from Columbus sends along word of another possible casualty of the filibuster deal on the Republican side, Pat DeWine, who this week was defeated in a stunning upset in the primary election to replace Congressman Rob Portman for the congressional seat from the Cincinnati area. Earlier [2]reports indicated that his father's role in the filibuster pact might come back to haunt him. And, in fact, although he was a prohibitive favorite in the weeks preceding the election, DeWine finished [3]a distant fourth in the primary field. News reports indicate that DeWine had several problems, including some personal issues, that may have led to his fall from grace in the primaries. But some [4]news reports indicate that his father's role in the filibuster deal played a substantial role in his reversal of fortune, and that primary voters were attacking him as a means to get at his father: The name became something of a curse last week, when his father, the senior senator from Ohio, became part of a bipartisan group of centrist senators who brokered a deal on judicial filibusters. That move angered many conservative Republicans nationwide and in the 2nd District, despite the younger DeWine's repeated statements that he did not agree with his father's actions. The apple doesn't fall far from the tree,'' said Boyd Piper Jr., a Republican voter from Clermont County. Piper was so upset with Sen. DeWine's action that he printed a bumper sticker for his car: 1 DeWine in Congress is 1 too many.'' In fact, De Wine [5]tried to distance himself from his father's role in the filibuster deal: In an effort to make sure the sin'' of the father isn't visited on the son, Republican candidate Pat DeWine made it clear Thursday he doesn't approve of the role his father, Sen. Mike DeWine, played this week in brokering a deal with Senate Democrats over judicial filibusters. I wouldn't have voted the way he did,'' the Hamilton County commissioner said Thursday. If a person is appointed to the federal bench, he or she deserves an up-or-down vote.'' The elder DeWine was one of seven Senate Republican moderates who came together this week with seven Senate Democrats to hammer out a deal that allowed some of President Bush's judicial nominees to be confirmed but gave Democrats the power to block others. Many conservative Republicans are furious at Sen. DeWine; and, on Thursday, the Hill, a Capitol Hill newspaper, speculated that conservative voters in Ohio's 2nd Congressional District might take their frustration out on the younger DeWine, who is generally considered the front-runner in a field of 11 GOP candidates running in the June 14 special election primary. There was some evidence other candidates for the 2nd District GOP nomination were ready and willing to try to tie Pat DeWine to his father's actions. He seems to have no problems riding his father's coattails when it comes to raising money and getting name recognition; he's willing to take all the good from it and none of the bad,'' said GOP candidate Tom Brinkman Jr. of Mount Lookout. I don't know if I believe him when he says he wouldn't have done what his father did.'' It is certainly premature to conclude whether in the long run there will be any negative (or positive) impact on the electoral fortunes of the filibuster dealers. In Cincinnati, DeWine appears to have had enough other problems that it is difficult to determine what role, if any, his father's role in the filibuster deal played in his defeat. But on the Republican side at least, it appears that conservative voters may have taken notice of the filibuster deal. It will be interesting to follow the story as it develops. References 1. http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118932438 2. http://www.hillnews.com/thehill/export/TheHill/News/Campaign/052505.html 3. http://www.wcpo.com/news/2005/local/06/15/vote.html 4. http://news.enquirer.com/apps/pbcs.dll/article?AID=/20050601/NEWS01/506010411/-1/all 5. http://news.enquirer.com/apps/pbcs.dll/article?AID=/20050527/NEWS01/505270373/-1/all ___ Volokh mailing list
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Posted by Eugene Volokh: Mopery: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1119027032 [1]WordSmith reports on this legalish word that I'd never heard of before. According to the Oxford English Dictionary, it's The action of committing a minor or petty offence, such as loitering, etc.; contravention of a trivial or hypothetical law, esp. when used as an excuse to harass or arrest a person against whom no more serious crime can be charged. References 1. http://wordsmith.org/awad/archives.html ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Eugene Volokh: Hot News from a href=http://www.borowitzreport.com/archive_rpt.asp?rec=1155srch=;Andy Borowitz/a: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1119029010 SADDAM REQUESTS JACKSONS JURY Asks Accusers Mom to Testify Against Him Former Iraqi dictator Saddam Hussein startled the international legal community today by requesting that the jury in the Michael Jackson child molestation trial be empanelled to sit in judgment of him when his trial gets underway in Baghdad. . . . In addition to requesting the Jackson jury, Saddam also requested that the mother of Mr. Jacksons accuser be called upon to testify against him in his trial. Read more of this breaking story [1]here. References 1. http://www.borowitzreport.com/archive_rpt.asp?rec=1155srch= ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Juan Non-Volokh: The Importance of History: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1119033579 David Gelernter has an [1]op-ed on the importance of history in today's LA Times. Here's a brief excerpt: I was amazed to hear about teenagers who don't know Fact 1 about the Vietnam War draft. But I have met college students who have never heard of Pol Pot and the Khmer Rouge the genocidal monsters who treated Cambodia in the 1970s to a Marxist nightmare unequaled in its bestiality since World War II. And I know college students who have heard of President Kennedy but not of anything he ever did except get assassinated. They have never heard JFK's inaugural promise: that America would pay any price, bear any burden, meet any hardship, support any friend, oppose any foe to ensure the survival and the success of liberty. But President Bush remembers that speech, and it's lucky he does. To forget your own history is (literally) to forget your identity. By teaching ideology instead of facts, our schools are erasing the nation's collective memory. As a result, some expert can go on TV and announce (20 minutes into the fighting) that Afghanistan, Iraq or wherever is the new Vietnam and young people can't tell he is talking drivel. As Glenn might say, read the [2]whole thing. While portions of the essay frame the issue in right-left terms, I think it transcends ideology. The loss of historical knowledge in society at large -- in a sense, the collective amnesia of our age -- is deeply troubling. References 1. http://www.latimes.com/news/opinion/commentary/la-oe-gelernter17jun17,0,4056712.story?coll=la-news-comment-opinions 2. http://www.latimes.com/news/opinion/commentary/la-oe-gelernter17jun17,0,4056712.story?coll=la-news-comment-opinions ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Eugene Volokh: Technology and Birth Rates: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1119035247 My post [1]expressing skepticism about birth rate forecasts for 45 or 100 years in the future led me to think: What changes might substantially increase birth rates in the developed world? Here's my candidate: A combination of (1) cheaper, less painful, and more reliable egg extraction and freezing, which would let 20-year-old women routinely bank eggs for the future, and (2) the invention of incubators that can safely grow a child from a fertilized egg to a live baby. It's of course impossible to be sure that development 2 will happen within the next 45 years, but I suspect that it will. Let's say for our purposes that it does. Why is this likely to substantially increase birth rates? It seems to me that many couples have fewer children than they'd like, for several reasons. First, both the increase in women's educational and professional opportunities and changing sexual mores have led many women to marry later, and to have children later. They may still want to have 2, 3, or more children, but it becomes harder to do if you start in your mid-30s. Second, pregnancy is hard work, especially if you also have one or two kids running around and contributing to your tiredness. Pregnancy and childbirth can also cause various health problems. Some women apparently really enjoy pregnancy and even childbirth, but I suspect that most don't. I doubt that this deters many would-be first-time mothers -- but it may deter some women who already have two kids, have experienced the unpleasantness of pregnancy, are older and thus more likely to find physical burdens more taxing, and feel less of a need to have that extra kid. Third, I suspect that quite a few families might want to have another kid as their first batch gets older. Today, it's just not an option, at least without a great deal of work. (Adopting is of course always possible, but many people are reluctant to do that.) But if it becomes easy, I suspect a significant number of older couples may take advantage of it. Here I'm less certain, and of course as someone with two small kids I fully understand that many older couples may have no interest in going through all that again. Yet if even a substantial minority (say, 10%) do take advantage of new technology to do this, the birth rate may go up nontrivially. So if age-related fertility decline stops being a problem, and the physical burden of pregnancy and childbirth is eliminated, two important deterrents to having more children would be eliminated. Naturally, there are plenty of other deterrents; technology won't make having children cost-free. But it will reduce the costs (I speak here mostly of nonfinancial costs) and thus increase the demand. This is all guesswork on my part, and it may be skewed by the circles in which I travel. It would be interesting to see if there have been surveys that try to measure (however imperfectly) the extent to which people would have more children if the problems I describe were solved. Still, my suspicion is that this could easily drive up the birth rate by 0.2 or 0.3 per couple, or perhaps even more. I have enabled comments. References 1. http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118853960 ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Eugene Volokh: The Sort of Thing That Drives Economists Up a Wall: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1119040609 A comment related to my [1]technology and birth rates post below says: I cannot help but think that you are treating people like a commodity (reduce costs and increase demand). I think a big barrier to childbirth is actually our culture, which cannot see why investing into another is more important than investing in one's self. Child creation is like a commodity in that if you reduce costs, you'll increase demand. Cost matters. Culture matters, too, of course. But even if you hold constant -- as a supposedly culturally dictated factor -- the amount that a person is willing to invest in a child, as the per-child decreases, the number of children in which the person is willing to invest increases. If a family feels that they can't spend more than $50,000/year on children without doing things that are too painful to them (e.g., getting a high-paying but misery-inducing job), and the cost of having a child rises from $15,000 to $25,000, they'll be likelier to have 2 children rather than 3. If the costs decline from $25,000 to $15,000, they'll be likelier to have 3 rather than 2. Likewise, if each extra child produces nine months worth of pretty serious discomfort and some amount of health problems stemming from the pregnancy, then on the margins some women will choose to have fewer children, even if you hold culture and willingness to invest in others constant. Moreover, people's willingness to invest in others may change over time. Twentysomethings may want to play around and have fun; fortysomethings may be more willing to invest in having children; but by then, having children may be medically impossible or too difficult. If technology changes to allow people in their 40s to have all the kids they then want, then -- again, keeping culture constant -- they may end up having more kids. Perhaps I'm mistaken, but my sense is that many people resist economic analysis because they find it distasteful: People shouldn't be treated like commodities (as if I'm suggesting that I be able to sell my wife on the open market). We should be paying attention to the grand plan of making people more unselfish rather than to technocratic matters such as cost and incentive (as if campaigns to make people unselfish have enjoyed notable success). Yet these sorts of gut reactions, and the slogans attached to them, aren't going to change human nature. With very few exceptions, as tasks get less costly -- or, if you prefer, get less painful and uncomfortable -- people will undertake those tasks more. One can debate how important the cost savings that I describe are compared to all the other costs of having children. But it's a major mistake to just close one's eyes to costs and how people react to them. References 1. http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1119035247 ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Orin Kerr: If Watergate Had Happened in 2005: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1119040718 The recent disclosure that Mark Felt was Deep Throat of Watergate fame led me to wonder recently what the Watergate scandal would have looked like if it had happened in 2005. There's at least a chance that Felt wouldn't have leaked to Bob Woodward Carl Bernstein at the Washington Post, or their 2005 equivalents. Instead of taking elaborate steps to meet in garages and make signals with flower pots, Felt could have just started an anomymous blog. It might have looked something like this: [1]http://watergatebreakin.blogspot.com/. References 1. http://watergatebreakin.blogspot.com/ ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Orin Kerr: Code Is Law, Or Is It?: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1119050620 One of the buzzphrases common in cyberlaw circles is that code is law, an idea popularized by Lawrence Lessig. The basic idea is that computer code can shape the experience and options available to Internet users. Because law is also a means of attempting to shape human experience and options, code and law are in essence trying to do the same sort of thing. They are both ways of regulating environments. I confess that I have never been particularly enamored of the code is law formulation. It seems to me that code is law only to the extent that lots and lots of things are law. If the test for law is what regulates human behavior and experience, then it seems that physics is law, chemistry is law, fear is law, greed is law, human eyesight is law, etc. At such an abstract level, saying that something is law doesn't seem to have a great deal of meaning. Indeed, in my experience code is law has become a shorthand used among cyberlaw types to remind ourselves that code is important. Law professors naturally look for legal answers to human problems, and code is law reminds us that techie solutions may work just as well or better than legal ones. So if code is not law, what is it? If you're interested in that question, I recommend that you check out Yale Law student James Grimmelmann's just-published law review note, [1]Regulation by Software (.pdf). Grimmelmann has a somewhat similar skepticism about the code is law formulation, and he offers an interesting and quite useful discussion of the differences between regulation by law and regulation by software. Here is the abstract: This Note builds on Larry Lessigs famous formulation that code is law to argue that Lessig was wrong to equate computer software with physical architecture. Although software resembles both law and architecture in its power to constrain behavior, it has features that distinguish it from both. The Note identifies four relevant attributes of software: It is ruleish, potentially nontransparent, impossible to ignore, and vulnerable to sudden failure. By assessing the impact of these characteristics in a given context, one can decide whether software is a good or a bad choice to solve a regulatory problem. While I'm at it, kudos to the editors of the [2]Yale Law Journal for their smart and helpful way of publicizing their latest issue. I knew that the Grimmelmann note was published and online because I signed up for the YLJ's [3]online mailing list. The list sends out an e-mail whenever a new Journal issue is published; the e-mail contains abstracts of each piece in the issue together with links to .pdf copies posted on the Journal's website. It provides a very easy and convenient way of following, reading, and discussing new scholarship. I hope other law reviews follow the YLJ's lead. References 1. http://www.yalelawjournal.org/pdf/114-7/Grimmelmann.pdf 2. http://www.yalelawjournal.org/current.asp 3. http://mailman.yale.edu/mailman/listinfo/ylj-toc ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Orin Kerr: House Vote on the Patriot Act: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118934376 A [1]big item in the news today is that the House of Representatives voted to block the part of the Patriot Act that allows the government to get library and book store records. I'm having a hard time figuring out exactly what the House voted on -- as usual, the press coverage is devoid of the details needed to tell you what actually happened -- but as best I can tell the actual issue was a bit narrower, and the vote is likely to be mostly symbolic. It seems that the bill approved by the House would block federal funding for any effort to use Section 215 of the Patriot Act to obtain records from libraries or bookstores relating to actual book purchases or borrowing. I'm not sure if this would actually stop Section 215 from being used in such contexts, as I don't know enough about the appropriations process to know how directly the funding question links to the practice. More broadly, it's my understanding that the bill would still allow Internet records to be obtained from libraries and bookstores under Section 215, and would still allow records of libraries and bookstores to be obtained under traditional criminal authorities and also under other provisions of FISA beyond Secton 215. Finally, it helps to keep in mind that this is just a House vote. It seems unlikely that the Senate will go along with this, and the President's promised veto if this passes means it is not likely to make it into legislation (something that I assume the House members knew when they voted on it). Still, an interesting development. Stay tuned. References 1. http://www.nytimes.com/2005/06/16/politics/16patriot.html?hpex=1118980800en=b1893d773f4955beei=5094partner=homepage ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Randy Barnett: Critiquing Contract Law http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118945265 I am late for the program on Critiquing Contract Law--again because I was uploading the last blog post in my room. Since I now know someone is reading these posts, I decided to proofread it albeit quickly. Jay Feinman (Rutgers) is almost done with his talk. I like Jay a lot, ever since we both visited at Northwestern teaching contracts. He's a nice guy. He is both describing the Critical Legal Studies (CLS) movement and how it came under attack and went into somewhat of a decline in favor of the New Formalism and the New Conservatism. It is interesting that he attributes the decline of the political critique of law to politics. This is consistent. What is not entirely consistent is why a rational critique offered by Crits is supposed to be evaluated on its merits as an effort in reason, but its rejection cannot be based on any deficiencies in their argument. It is just politics. But I suppose proponents of every school of thought (including libertarians, of course) attribute its lack of more general acceptance to a misunderstanding of the audience rather than to weaknesses of their arguments. Jay closes on the pessimistic note that the contributions of the other scholars are unlikely to have much influence. He says don't shoot the messenger. I do think Jay's gloominess from the Left is a social phenomena worth noting. Deborah Waire Post (Tauro) opens with a PowerPoint slide with David Rosenberg's in class statement dismissing the contribution to torts of critical race theory and feminism. It gets a laugh. Her talk is about critical outsider theory. The project is to construct alternative paradigms of the rules. . . . [to read the rest click show] ([1]show) She confesses an ambience towards contract law. On the one hand, contract promises to be a tool in contesting subordination and oppression. On the other hand, since assent is often lacking without antisubordination rules, contract law becomes an instrument of oppression. Examples of this can be found in intimate contracts, IP, and civil procedure. She says that the idea of contract has become all pervasive as a means of people asserting their rights. Examples are litigation against schools, employers and government agencies. I am finding her presentation to be interesting and engaging, but a little too disjointed to report faithfully here. She is jumping from one point to another (apologizing for going so fast), while interjecting anecdotes, so it is hard to summarize fairly. As a result, I am doing a bit more listening than writing. She gets cheers for her presentation. The moderator Blake Moran (a really wonderful guy from Washington Lee) notes on how fast she spoke and attributes this to the fact that she just flew in from China and is probably high on caffeine. I am looking forward to Neil Williams' (Loyola) talk as it is based on the case of Bailey v. Alabama. Bailey is a case in which the Lochner-era court struck down a statute criminalizing breach of labor contracts as a means of establishing a system of peonage in Alabama. Justice Holmes (The Great Dissenter) dissented and would have upheld the statute. I included the case in my contracts casebook (the first time this was done), and now learn that Murphy, Speidel Ayres now has it in theirs. I cannot complain, as I borrowed from other casebooks when writing mine. For me, all this borrowing is an argument against intellectual property. Neil asks whether it is appropriate for law professors to take into account the race of the parties when teaching cases? This is a very interesting and important question. He starts by telling the story of Alphonso Bailey. He took an advance for his employment contract, and when he left his job he was charged with a crime of fraud. The Supreme Court mentioned Bailey's race to claim (unpersuasively to Neil) that his race did not matter. He says that the Lochner era court was reluctant to confront racial oppression head on but, to its credit, it struck down the statute for violating the 13th Amendment that prohibited involuntary servitude. Neil notes that Holmes dissented, which he thinks is inconsistent with others of his opinions. He cuts Holmes a bit of slack for his criticizing the court for failing to consider the case race neutrally as it claimed to be doing. I don't think that was Holmes's beef. Instead, Holmes himself insists upon the race neutrality perspective (which no one made him do) to assert his view that he could see no reason why the state can throw its weight on the side of contract performance by use of he criminal law. The presentation raises but does not acknowledge how protecting freedom of contract
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Posted by Randy Barnett: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118953549 At lunch Dick Speidel (Northwestern) gave a tribute to the late Allan Farnsworth that asked, would an aspiring jobs candidate who said that he wanted to emulate Allans career be hired? Good question. Speidel characterizes Farnsworths approach as Law and Law. At the end of his talk, he asks the audience to candidly answer the question for their own school and, if the honest answer is no this is a failing of American legal education. The heart of his talk is a remarkably accurate, though brief, overview of the intellectual developments in contract law scholarship during Farnsworths long career, from legal realism, to law and economics, to critical legal studies to rights theories (he includes my approach of manifested intention to create legal relations in the latter category). Afterwards I commend him for his accuracy. I could not find fault with any of his story. Neither could Jay Feinman or Chuck Knapp with whom I spoke immediately afterwards. The last session of the day is called Contract Across the Curriculum. Speakers are Margaret Friedlander Brinig (Iowa), Einer Elhague (Harvard) and Jody Freedman (UCLA). Turn out is much lower than Critiquing Contract Law before lunch--people may be sight-seeing--so I have a much better seat. Einer is first up. He says he is trying to finish two books this summer. One on contract default rules and the other on statutory default rules. Both books are based on the distinction between preference eliciting default rules and preference estimating default rules. In contracts, he says, we normally want default rules that efficiently achieve the preference of the parties. This does not extend to statutory default rules which are not solely meant to serve efficiency grounds, and you cannot identify the group that is the parties to the statute. The public are not true parties within the legislative process. Nor are legislators who must take into account their constituents, not merely their own preferences. So how does this affect the difference between default rules in contract and default rules in statutory interpretation? [to read the rest click on show] ([1]show) What we are really looking for with interpreting statutes is enactable preferences. This assessment is a probabilistic judgment. (And I would add somewhat more speculative than with private contracts.) The second difference between contracts and statutes is that you are not bound by contracts unless you consent, whereas with statutes you are bound by acts of previous legislatures. So whose preferences do you look to? The enacting legislature or the current polity? He says that, paradoxically, previous legislators would want statutes interpreted according to evolving preferences--as this would increase the reach of the prior legislature into the future. He favors using a preference eliciting default rule for statutory interpretation (like a penalty default rule in contract law). In other words, adopt interpretations that will provoke a legislative override that will make it clear what the (current) legislature really wants today. This contrasts with a default rule that tries to guess what today's legislators would want (a preference estimating default rule). He then provides some examples of this approach in statutory interpretation. I am not doing his argument complete justice, but this is in part because the bulk of his analysis is in his articles and book draft and is only cursorily summarized here. Next up is Margaret Brinig (Iowa). Iowa is home to two great contract scholars: Steve Burton and Eric Anderson. Bob Hillman began his career at Iowa too. She begins by identifying the similarities between contracts and family law. She mentions how many casebooks start with family law cases like In Re Baby M (which is indeed the second case in my casebook). Family law cases are not only more relevant to students, she notes, but are more fun. Lee Marvin may be dead, but it is interesting to read about his palimony travails. Marriages begin with contracts. She then shows a clip from Princess Bride (one of my favorite films). It is the hysterical marriage scene. Man and wife, say man and wife! Wesley later says the marriage never happened because the princess never said I do. If you didn't say it, he tells her, it never happened. What a great illustration of formalities. (In class I always use the breaking of the glass in Jewish ceremonies to illustrate the formality of assent.) After a lengthy discussion of how contracts play a role in family relationships and family law, she then asks why not simply contractualize the conception of marriage. (This is an approach to which I have been attracted to
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Posted by Eugene Volokh: God and the Universe: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118953581 I've often heard Einstein's supposed line expressing skepticism about quantum mechanics: God doesn't play dice with the universe. I somehow hadn't heard, though, Niels Bohr's supposed response: Einstein, don't tell God what to do. It's a funny commentary, I think, on the role of intuitive judgments of plausibility in evaluating scientific theory. Thanks to [1]Damien Sorresso (in the Huffington Post comments) for the pointer. References 1. http://www.huffingtonpost.com/theblog/archive/eugene-volokh/is-evolution-a-threat-to-_2746.html#comments ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Eugene Volokh: Very Nice Commencement Speech http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118955384 [1]by Steve Jobs. Thanks to [2]The New Editor for the pointer. References 1. http://news-service.stanford.edu/news/2005/june15/jobs-061505.html 2. http://www.theneweditor.com/archiveNowThisisaCommencementSpeech.html ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Randy Barnett: The Richness of Contract Theory: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118955716 I have now fixed the link to my review of Bob Hillman's book, The Richness of Contract Law (not that anyone complained). The review is called, [1]The Richness of Contract Theory, and here is the abstract: In his book, The Richness of Contract Law, Robert Hillman criticizes highly abstract or unifying contract law theories that, he says, fail to reflect adequately the complexities of existing contract law. In his review, The Richness of Contract Theory, Randy Barnett takes issue with this claim and identifies the generational dispute between legal realists, whose approach is shared by Professor Hillman, and legal theorists of whom Hillman is critical. Professor Barnett's thesis is that the very purpose of modern legal theories is to simplify a complex reality so as to better understand, cope with, and reform legal doctrine. Barnett then discusses Hillman's recent important empirical research on promissory estoppel. Hillman's findings represent a partial corrective to the previous consensus against a reliance theory of promissory estoppel insofar as they establish that reliance is a necessary element of promissory estoppel. However, his data also support the Willistonian conception of promissory estoppel by showing that a promise is also required. Ironically, Hillman is, Barnett claims, insufficiently sensitive to the complexity of the cases he surveys and the need to distinguish reasonable or justified from unreasonable or unjustified reliance. A more sophisticated analysis of these cases is provided by Professor Sidney DeLong who also is, not coincidentally, more receptive than Hillman to the richness of modern contract theory. While supporting Hillman's finding concerning the requirement of reliance, DeLong also notices courts frequently distinguishing performance from enforcement reliance. Enforcement reliance is reliance accompanied by a manifested intention by the promisor to be legally bound, or what Barnett has previously called consent. References 1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=186548 ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Randy Barnett: John Derbishire on the Space Shuttle: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118958000 I am often in disagreement with John Derbyshire, so if you are like me you are likely to miss his lively NRO article on [1]The Folly of Our Age: The Space Shuttle Program. Here is how it ends: My experience of pointless make-work, which is much more extensive than I would have wished when starting out in life, is that people engaged in it know they are engaged in it. Whether they mind or not depends on the rewards. For a thousand bucks an hour, Id do make-work all day long aye, and all night too! Astronaut salaries dont rise to anything like that level, of course; but there are rewards other than the merely financial. I hope no one will take it amiss I am very sorry for the astronauts who have died in the shuttle program, and for their loved ones if I quietly speculate on whether, being engaged in such a supremely thrilling and glamorous style of make-work, one might not easily be able to convince oneself to, as Astronaut Bowersox says, believe in the program. None of which is any reason why the rest of us should believe in it, let alone pay for it. There is nothing nothing, no thing, not one darned cotton-picking thing you can name of either military, or commercial, or scientific, or national importance to be done in space, that could not be done twenty times better and at one thousandth the cost, by machines rather than human beings. Mining the asteroids? Isaac Asimov famously claimed that the isotope Astatine-215 (I think it was) is so rare that if you were to sift through the entire crust of the earth, you would only find a trillion atoms of it. We could extract every one of that trillion, and make a brooch out of them, for one-tenth the cost of mining an asteroid. The gross glutted wealth of the federal government; the venality and stupidity of our representatives; the lobbying power of big rent-seeking corporations; the romantic enthusiasms of millions of citizens; these are the things that 14 astronauts died for. To abandon all euphemism and pretense, they died for pork, for votes, for share prices, and for thrills (immediate in their own case, vicarious in ours). I mean no insult to their memories, and I doubt they would take offense. I am certain that I myself would not certain, in fact, that, given the opportunity, I would gleefully do what they did, with all the dangers, and count the death, if it came, as anyway no worse than moldering away in some hospital bed at age ninety, watching a TV game show, with a tube in my arm and a diaper round my rear end. I should be embarrassed to ask the rest of you to pay for the adventure, though. References 1. http://www.nationalreview.com/derbyshire/derbyshire200506160749.asp ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Eugene Volokh: Sensitivity: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118975606 [1]From a UK Web site: U2 frontman BONO was horrified during a visit to Ethiopia, when he saw local women pelting a breast-feeding aid worker with stones. The American woman was oblivious of the offence she was causing, and had to escape the angry onslaught from female Muslims who had no qualms about injuring her or her baby. InstaPundit puts it well: Bono: She didn't mean to be insensitive. But they did. References 1. http://www.femalefirst.co.uk/celebrity/45442004.htm ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Eugene Volokh: a href=http://www.lileks.com/screedblog/05/06/061505.html;Lileks on Religious Fascism/a: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118975736 Much worth reading. ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Juan Non-Volokh: Environmental Law Blogging: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118977578 J. Bishop Grewell rounds up recent environmental cases in federal appellate courts on The Commons Blog [1]here, [2]here, and [3]here. Some of these decisions, such as the 4th Circuit's [4]ruling against the EPA in United States vs. Duke Energy, are quite significant. Meanwhile, the [5]Environmental Law Prof Blog is the newest member of the [6]Law Professors Blog Network. Welcome to the blawgosphere! References 1. http://commonsblog.org/archives/000450.php 2. http://commonsblog.org/archives/000451.php 3. http://commonsblog.org/archives/000452.php 4. http://pacer.ca4.uscourts.gov/opinion.pdf/041763.P.pdf 5. http://lawprofessors.typepad.com/environmental_law/ 6. http://www.lawprofessorblogs.com/ ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Orin Kerr: Blogging LawProf Census Update: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118985438 [1]Daniel Solove has updated his list of blogging law professors; the latest list includes 130 people. Does anyone want to make a guess about how many law professors will be blogging in a year from now? References 1. http://prawfsblawg.blogs.com/prawfsblawg/2005/06/law_professor_b_1.html ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Todd Zywicki: Anne Applebaum on Cost-Benefit Analysis and Airport Security: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118842605 Having spent yesterday engaged in an agonzing day of a round-trip flight to New York and back, Anne Applebaum's column today calling for the most minimal assessment of cost-benefit analysis in airport security seems right on target. From [1]Airport Security's Grand Illusion: If you happen to be reading this while standing in one of those disturbingly slow, zigzag lines at airport security -- looking repeatedly at your watch, wondering if this time you really will miss the plane -- here's something to make you feel worse: Almost none of the agony you are experiencing is making you safer, at least not to any statistically significant or economically rational degree. Certainly any logical analysis of the money that has been spent on the airport security system since Sept. 11, 2001, and the security that the system has created, must lead to that conclusion. She continues: Yet this mass ceremonial sacrifice of toenail clippers on the altar of security comes at an extraordinarily high price. The annual budget of the federal Transportation Security Administration hovers around $5.5 billion -- just about the same price as the entire FBI -- a figure that doesn't include the cost of wasted time. De Rugy reckons that if 624 million passengers each spend two hours every year waiting in line, the annual loss to the economy comes to $32 billion. There has also been a price to pay in waste, since when that much money is rubbed into a problem with that kind of speed -- remember, the TSA had only 13 employees in January 2002 -- a lot of it gets misspent. In the case of the TSA, that waste includes $350,000 for a gym, $500,000 for artwork and silk plants at the agency's new operations center, and $461,000 for its first-birthday party. More to the point, the agency has spent millions, even billions, on technology that is inappropriate or outdated. In fact, better security didn't have to cost that much. Probably the most significant measure taken in the past four years was one funded not by the government but by the airline industry, which put bulletproof doors on its cockpits at the relatively low price of $300 million to $500 million over 10 years. In extremely blunt terms, that means that while it may still be possible to blow up a plane (and murder 150 people), it is now virtually impossible to drive a plane into an office building (and murder thousands). By even the crudest cost-benefit risk analysis, bulletproof cockpit doors, which nobody notices, have the potential to save far more lives, at a far lower cost per life, than the screeners who open your child's backpack and your grandmother's purse while you stand around in your socks waiting for them to finish. References 1. http://www.washingtonpost.com/wp-dyn/content/article/2005/06/14/AR2005061401346.html ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Todd Zywicki: ANWR: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118844712 Peter Huber and Mark Mills, authors of [1]The Bottomless Well, weigh in [2]today on the question of drilling for oil in ANWR: What We Could Gain in Alaska Wednesday, June 15, 2005; Page A24 People who love nature, as Jonathan Waterman clearly does [[3]What We Would Lose in Alaska, op-ed, June 6], harm their cause when they get key numbers wrong. Mr. Waterman noted that Americans consume about 7 billion barrels of oil a year. Then he said that 1 million barrels a day of new Alaskan oil would represent only a 0.5 percent annual increase in domestic supply. Our domestic production is just over 9 million barrels a day; the increase therefore would be more than 10 percent. Moreover, Mr. Waterman offered his erroneous 0.5 percent figure to refute the argument that Alaskan oil would make the United States less dependent on oil imports. The imports that concern everyone are those from the Persian Gulf. The United States imports about 2.5 million barrels of Persian Gulf oil a day, so new Alaskan oil would cut those imports by 40 percent. If the Arctic National Wildlife Refuge contains as much as 16 billion barrels of oil, as Mr. Waterman acknowledged it might, that would be enough to cover 100 percent of current Persian Gulf imports for the next 18 years. PETER HUBER Bethesda MARK MILLS Chevy Chase Given that vanishingly few Americans have the time and money to replicate Waterman's 1,700 mile kayak trip across the Canadian Arcti to enjoy the spectacular views, surely Waterman's original column should have been titled What I would Lose in Alaska, rather than What We Would Lose in Alaska. On the other hand, everyone gets to pay for Waterman's trip through higher energy prices, especially lower-income consumers because demand for enery consumption is highly income inelestic. Now don't get me wrong--I am perfectly happy to pay a bit more at the pump in order to preserve parks and unaltered landscapes. On the other hand, I can't see why I should be allowed to force others to subsidize my preferences. It is hard for me to justify as either a matter of efficiency or equity forcing low-income consumers to give me free or heavily subsidized environmental amenities, when they will never have the opportunity to experience this amenities (but still also have to pay higher energy prices to subsidize my preferences). So it seems to me that it is time to get off this question of what upper-middle class kayakers would lose in Alaska and start seriously thinking about doing something about the shameful subsidies by poor people for those like Waterman and me. We need to think about taking some of the politics out of these decisions by coming up with some scheme for pricing these goods in such a manner that the opportunity cost of various different uses is more transparent. The goal, I think, is to make all of us who enjoy the outdoors to put our money where our mouths are and make us pay for our entertainment, just like everyone else has to pay for tickets to movies, football games, and Disney World. Its all fine and dandy for Jonathan Waterman to take a 1,700 mile trip across the Canadian Arctic, but it is hard for to see why I should bear the cost of that at the pump while receiving no benefit. I'm going to the DC United soccer game tonight--maybe Mr. Waterman wants to send me a check to subsidize my entertainment as well? References 1. http://www.amazon.com/exec/obidos/ASIN/0465031161/qid=1118842671/sr=2-1/ref=pd_bbs_b_2_1/104-5390802-0456765 2. http://www.washingtonpost.com/wp-dyn/content/article/2005/06/14/AR2005061401386.html 3. http://www.washingtonpost.com/wp-dyn/content/article/2005/06/05/AR2005060501243.html ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Eugene Volokh: More on Digital Mob: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118853144 I agree with [1]Juan's criticisms of the bloggers as digital mob argument, and just wanted to add this: The reason that we dislike mobs is that they have the power to cause physical damage entirely unrelated to the persuasiveness of their ideas. But when bloggers hound[] . . . prominent newsmen from their jobs, they don't do it through force -- nor do they do it through extravagant opinions as such. A news organization isn't going to fire someone because people express unfounded opinions about them; and to the extent the news organization fears public reaction to unfounded opinions, it has plenty of opportunity to make its own case to the public. Unlike some of the targets of media criticism, the media targets of blog criticism have ample means to publicly defend themselves. The wealthy established media should have little difficulty rebutting unfounded opinions spread by amateur bloggers. Of course, when the opinions, however extravagant, are actually well-founded, the media may well respond to them. And prominent newsmen who have indeed done something wrong may be dismissed by their employers, not because some oh-so-scary digital mob is threatening to rip apart the jail if the prisoner isn't handed over, but because bloggers are making a persuasive case that the newsmen have indeed badly erred. Blogs can . . . be destructive and unaccountable, the Technology Review story says. Yet they are accountable in the simplest and most effective way: If their charges against newsmen aren't persuasive, there'll be little reason for the newsmen's employers to act on those charges. Finally, Technology Review complains, even though [p]erhaps all three men deserved their fates; maybe the blogosphere is to be applauded, bloggers expressed an unseemly triumph after they got their man. Heaven forfend! There's a mob outside the window, Sheriff -- and they're . . . gloating. What has this country come to, deputy? I guess we'd better give them what they want. Let's just say that if mobs were simply famous for persuading media employers, through the force of their reasoning, to fire errant newsmen, and then express[ing] . . . unseemly triumph, then mob wouldn't be much of a pejorative. References 1. http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118850127 ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Juan Non-Volokh: MoveOn.Org Misleads on PBS: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118853751 MoveOn.Org is seeking to [1]mobilize its members in defense of federal funding for public broadcasting, but is doing so in a misleading manner. The MoveOn website warns: The House is threatening to eliminate all public funding for NPR and PBS, starting with 'Sesame Street,' 'Reading Rainbow' and other commercial-free children's shows. Sign our petition to Congress opposing these massive cuts to public broadcasting. As detailed [2]here (and in an e-mail MoveOn is sending to its supporters), there is a threat. COngress is considering whether to reduce the federal appropriation for public broadcasting from $400 million to $300 million, as a step toward phasing out federal funding altogether. Why is the MoveOn campaign misleading? The suggestion that budget cuts threaten popular shows, such as Sesame Street (as they do above) or Arthur and Clifford the Big Red Dog (as they do in their e-mail alert), is erroneous. Why is this misleading? Because such shows are not the sort of programming which need federal support to survive. These PBS shows are immensely popular -- and hence immensely profitable. Such popular children's shows are notorious cash cows. Even if federal funding for PBS were eliminated entirely, these programs -- as well as PBS mainstays such as the Newshour with Jim Lehrer (one of my two favorite news programs) -- would almost certainly survive as they would have little problem attracting funding. For the childrens' programs, much of the profit from product tie-ins could easily support their continued broadcast (although it might tarnish PBS' non-commercial image.) It is the more marginal, and often more controversial, programming that might be at risk. Yet PBS defenders don't emphasize this because it would undermine the case for continued federal subsidy. This fight over federal funding of public broadcasting comes at a time when PBS and NPR are under fire for a lack of political balance. I agree that much of the programming on public broadcsting is quite skewed. Yet I am also uncomfortable with the content of public broadcasting becoming a political football. I don't like the idea of politicians from either party pressuring any broadcaster to shift their coverage in one direction or the other. To me, this only strengthens the case for defunding public broadcasting altogether. After all, if PBS and NPR did not receive any federal support, the federal government would have no basis for seeking to infulence the content of either network, and would not have the same ability to put pressure on public broadcasters. I think public broadcasting should be defunded -- for its own good. References 1. http://www.moveon.org/publicbroadcasting/ 2. http://www.washingtonpost.com/wp-dyn/content/article/2005/06/09/AR2005060902283.html ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Eugene Volokh: Careful with That Long-Term Planning: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118853960 [1]Robert Samuelson writes, in the Washington Post: Europe as we know it is slowly going out of business. . . . It's hard to be a great power if your population is shriveling. Europe's birthrates have dropped well below the replacement rate of 2.1 children for each woman of childbearing age. For Western Europe as a whole, the rate is 1.5. It's 1.4 in Germany and 1.3 in Italy. In a century -- if these rates continue -- there won't be many Germans in Germany or Italians in Italy. Even assuming some increase in birthrates and continued immigration, Western Europe's population grows dramatically grayer, projects the U.S. Census Bureau. Now about one-sixth of the population is 65 and older. By 2030 that would be one-fourth, and by 2050 almost one-third. . . . There's much to Mr. Samuelson's article, which may well be generally correct. But I think it's something of a mistake to make demographic predictions for what happens in a century if these rates continue, or even in 2050. I doubt that a century ago we could have anticipated the demographics of Europe in 2005; I doubt that 45 years ago we could have anticipated the demographics of the U.S. in 2005; I doubt that today we can anticipate the demographics of Europe in 2105 or even 2050. I doubt, for instance, that someone 100 or even 45 years ago could have guessed Italy, seat of the Papacy, would have such a low birth rate. Too much depends on shifts in culture, immigration, economics, and to some extent medicine. Some things one can plan on with somewhat more confidence: People who are 30 today will be 75 in 2050, and barring a major war, plague, massive emigration, or massive immigration of older people one can make a good guess about how many of these 75-year-olds there'll be in 2050. (Immigration, I suspect, is the main variable, but one can have a decent idea of how many will immigrate in the next 10 years, and past that we're talking about immigration of 40-to-75-year-olds, which I suspect is rarer than immigration of younger people.) But birth rates and rates of immigration of young people are, I think, much harder to estimate. And it seems to me a mistake to just assume that things will stay more or less the same over that long a timespan. They rarely do. I've enabled comments. References 1. http://www.washingtonpost.com/wp-dyn/content/article/2005/06/14/AR2005061401340.html ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Juan Non-Volokh: Brookhiser on Marijuana: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118857565 National Review has long bucked conservative orthodoxy on drug prohibition. The magazine first came out for drug decriminalization many years ago -- a controversial move for the magazine, and a position not supported by all of its writers. Longtime NR senior editor Rick Brookhiser does support NR's position, especially on marijuana, and can [1]speak from personal experience as to its medical benefits. Now if only the federal government would stop squelching medical marijuana research -- and drug warriors would stop pretending that marijuana is a grave threat to the public order. References 1. http://corner.nationalreview.com/05_06_12_corner-archive.asp#066200 ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Orin Kerr: Dialogue on the Merits of Smoking Bans: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118867604 Today's [1]Washington Post reports that a proposed smoking ban in DC restaurants and bars is gaining ground. I have conflicting views on the proposed smoking ban. The debate in my head goes something like this: CON: I can't believe DC wants to ban smoking in restaurants and bars. Does the government need to regulate everything? Whay can't they just let restaurants and people do what they want? PRO: You're missing something important. Being around smoke is a big annoyance for many non-smokers; the smell is very unpleasant, and non-smokers often need to pay to get their clothes dry-cleaned to get the smell out. The smoking ban is about avoiding those costs and harms on innocent third parties. CON: But we can let the market decide this. If some people want to smoke, they can go to a smoking bar or restaurant. If some people want to go to a place than bans smoking, some businesses will ban smoking on their own volition to cater to that audience. The market will adjust to have some smoking places and other non-smoking places. It's a win-win. PRO: That sounds good in theory. But you're missing the fact that decisions to go to a particular restaurant or bar are usually group decisions, in which the least offensive option for the group wins out. Smokers usually are addicted to nicotine; if given the choice between a smoking place and a non-smoking place, they will voice a very strong preference for the non-smoking place. Non-smokers may strongly prefer going to a non-smoking place, but they'll voice less objection about going to a smoking place because it's not a chemical addiction for them. This means that even if most individual people prefer a non-smoking place, most groups will choose smoking places, and most restaurants will permit smoking. CON: I think you're basing that argument on a paternalistic value judgment about the merits of smoking, though. If a group makes a collective decision to go to Smoking Bar A instead of Non-smoking Bar B, it presumably means that the members of that group on the whole are happier at A than at B. Non-smokers may be a little bit annoyed by being around smokers, but that annoyance is outweighed by the pleasure the smokers get from smoking. It sounds like you're valuing the views of non-smokers more than those of smokers; you discount the latter because to you they are just feeding an addiction. PRO: Maybe. But is that illegitimate? After all, an addiction could be defined as something that a person feels compelled to do repeatedly even if they realize it is against their best interests. Given that, I'm not sure it's unfair to treat nicotine urges as a less valued set of preferences than a non-smoker's preference to be in a smoke-free environment. CON: What's next? Are you going to ban smoking altogether, even in private homes? I dont know where your principle stops. PRO: There's a decent argument for limiting the ban to bars and restaurants, actually. Bars and restaurants are enclosed spaces where you are physically close to other people you don't know. Smokers often ask their friends if their friends mind them smoking before lighting up, as they realize that many non-smokers are annoyed by the practice. The smoking ban would just extend the same courtesy to others the smokers don't know. CON: That's not quite right, though. The proposed ban wouldn't just give non-smokers veto power. It imposes a ban that all smokers must follow even if everyone in the bar or restaurant wants to smoke. That interferes too much with personal choice for my taste. So who has the stronger argument, PRO or CON? And what arguments are they missing? I have enabled comments. As always, civil and respectful comments only. References 1. http://www.washingtonpost.com/wp-dyn/content/article/2005/06/14/AR2005061400873.html ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Eugene Volokh: Interesting Crime-Facilitating Speech Incident: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118878158 It was [1]in the news several days ago, but I missed it, and thought other readers might have, too: The federal government has asked the National Academy of Sciences not to publish a research paper that feds describe as a road map for terrorists on how to contaminate the nation's milk supply. The research paper on biological terrorism, by Stanford University professor Lawrence M. Wein and graduate student Yifan Liu, provides details on how terrorists might attack the milk supply and offers suggestions on how to safeguard it. The paper appeared briefly May 30 on a password-protected area of the National Academy of Science's Web site. . . . [T]he Department of Health and Human Services, which asked the academy to stop the article's publication. . . . The paper gives very detailed information on vulnerability nodes in the milk supply chain and includes . . . very precise information on the dosage of botulinum toxin needed to contaminate the milk supply to kill or injure large numbers of people, [HHS Assistant Secretary Stewart Simonson wrote in a letter to the science academy chief Dr. Bruce Alberts]. . . . The NAS did indeed pull down the paper and delay its publication, and they're apparently reviewing it further. I'm naturally interested in this as an example of [2]crime-facilitating speech -- but also as the father of a boy who drinks lots of milk. The NAS is a private organization, and as best I can tell, this was a request, not a command or even a threat, so there's no First Amendment problem here. But it's still an interesting question about public safety, scientific openness, and what mix (and timing) of openness and secrecy is the best way to deal with potential security problems. Wein describes the problem in the course of arguing in favor of some potential solutions, such as that the FDA guidelines for locking milk tanks should be made mandatory, and . . . the dairy industry should improve pasteurization to eliminate toxins. To get such potentially expensive procedures implemented, one may well need to explain precisely why they're necessary, and do so publicly, so that it's harder to sweep the objections under the rug. On the other hand, there are obvious costs to public disclosure, too. A hard and important question. References 1. http://www.cnn.com/2005/US/06/06/milk.terror/ 2. http://www1.law.ucla.edu/~volokh/facilitatingshorter.pdf ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Tyler Cowen: Who says science is not politicized? http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118762660 Bloggers often prize their anonymity. That's the case at EffectMeasure.com, a blog started in November that deals with bird flu and other diseases. A blogger identified as Revere says the site was started by a group of well-known senior public health scientists. Revere declined to identify the group's members. The site is often critical of those who support us as scientists, Revere said in an e-mail interview. We therefore choose to remain anonymous so as to have the maximum freedom of expression in that regard. Here is [1]the full story, which also discusses the use of blogs to track and report diseases such as avian flu. References 1. http://www.gmu.edu/centers/publicchoice/This%20story%20ran%20today%20IBD.pdf ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by David Kopel: The New McCarthyism against Gun Owners: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118765047 [1]The New McCarthyism: Restricting Constitutional Rights Based on Mere Suspicion is the title of my new Issue Backgrounder for the Independence Institute. Rep. Carolyn McCarthy (D-N.Y.) has proposed turning the federal No-fly list into a prohibition on firearms possession. The Backgrounder analyzes her proposal and other proposals to use suspicion-based lists as a basis for prohibiting the exercise of Second Amendment rights. References 1. http://www.davekopel.com/2A/IB/New-McCarthyism.pdf ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Orin Kerr: Statutory Federalism: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118765572 Although [1]Gonzales v. Raich doesn't offer much hope for meaningful constitutional limits on the scope of federal power under the Commerce Clause, a recent case from Massachusetts offers a useful reminder of the continuing role of Congress in this area. The case involved [2]the wire fraud statute, which punishes fraudulent schemes involving a wire, radio, or television communication [transmitted] in interstate or foreign commerce. The interstate commerce requirement in federal criminal statutes such as the wire fraud statute has always been understood to require that a communication in interstate commerce must actually cross state lines. That's not a hard standard to meet in most cases, especially given modern communications technologies. For example, in United States v. Kammersell, 196 F.3d 1137 (10th. Cir. 1999), the Tenth Circuit held that the federal interstate threat statute applied to an AOL instant message sent from a suburb of Ogden Utah to downtown Ogden, just a few miles away. Why? Just follow the path of the IM: to be delivered, the IM had to travel from Utah to AOL's servers in Virginia, and back to Utah. Even if the interstate requirement is easily met in many cases, it does provide a clear statutory limiting principle for the scope of federal power in many contexts. In the Boston case, [3]United States v. Philips, prosecutors argued that they could satisfy the elements of the wire fraud statute without actually showing that any communications had travelled across state lines. They argued that it was enough that the communications in that case travelled by means of an instrument of interstate commerce, such as the phone system. The trial judge initially bought this theory, and the jury convicted on it (as well as a number of other theories). Ruling on a post-trial motion on June 8th, however, the Judge properly changed course and recognized that the wire fraud statute does not apply absent a communication that actually travels across state lines. As the judge noted, the fact that Congress could expand the statute to cover intrastate communications as a constitutional matter wasn't the relevant question; Congress chose a narrower approach, and that narrower approach was binding as a matter of statutory law. The judge therefore granted the defendants' motion as a matter of law in their favor on the wire fraud count. To be sure, Philips is only a minor victory for those of us in favor of some limits on the scope of federal power. But at this point any such ruling seems worth noting. Thanks to [4]White Collar Crime Prof Blog for the link, and for posting the opinion. References 1. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=USvol=000invol=03-1454 2. http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=18sec=1343 3. http://lawprofessors.typepad.com/whitecollarcrime_blog/files/order_granting_rule_29_on_wire_fraud.pdf 4. http://lawprofessors.typepad.com/whitecollarcrime_blog/2005/06/wire_fraud_requ.html ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Eugene Volokh: Pornography and Sexual Autonomy: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118768256 Someone asked on a lawprofs' discussion list whether Lawrence v. Texas means that obscenity laws are unconstitutional, on a sexual rights theory even if not a speech rights theory. (Recall that the Supreme Court has held that the First Amendment doesn't protect obscenity, which roughly means hard-core porn, in those communities that object to such porn; these laws haven't been enforced much recently, and with the Internet there may be little that the government can do about it, but the principle is that while much sexually themed material is protected, the really hard-core stuff is not, if the community to which its distrbuted finds it patently offensive.) This led me to think a bit more about the subject, and cobble together a quick post that I thought I'd also post here. I can imagine (at least) three readings of Lawrence: 1. Lawrence secures a right to sexual autonomy as such. If this is so, then the case for protecting porn becomes considerably stronger. Some people get the most pleasure from oral sex, some from anal sex, some from using sexual devices, some from consensual sex with handcuffs, some from consensual whipping, some from looking at sexual pictures with a sex partner, some from looking at sexual pictures by themselves. Under a pure sexual autonomy reading of Lawrence, all these would be protected; and the distribution of material necessary for them to operate would be protected, too, at least unless the government shows a strong enough reason to restrict them (which I take it wouldn't be easy for pornography in general). 2. Lawrence secures a right to sexual autonomy in the service of human relationships, possibly even relatively emotionally serious human relationships. If this is so, then restrictions that don't materially burden the ability to develop those relationships might well be permissible. Unless we think quite a few people really need porn for their relationship with another person -- not impossible, but I know of no evidence that this is so -- then a ban on distributing porn would be constitutional. How far, though, would this theory go. Say the government bans anal sex on the grounds that anyone (gay or straight) can at least engage in oral sex instead, and still have a sexual relationship that for most people would presumably be at least modestly gratifying. Would that be categorically permissible (with no need for any strict scrutiny analysis; I set aside the question whether anal sex could be banned on the grounds that it's disproportionately likely to spread disease)? Is one possible distinction that most gay men would find the limitation to be quite burdensome, even if it doesn't completely eliminate their sexual options in the contexts of the emotional and sexual relationships that work for them? What if 4% of the male population found that sex with their partners just isn't exciting without porn? 3. Lawrence secures a right to sexual autonomy in the service of human relationships, but for dignitary and practical reasons precludes the government from inquiring into just what kind of sex people really need. If that's so, then distribution of porn should be protected, because some couples use porn for sexual gratification. Should it matter that most porn is used solo (if that is indeed so)? I presume not, at least if the question is whether we have heightened scrutiny, rather than whether heightened scrutiny is passed. The question under this approach would be whether a considerable number of couples use porn as part of their sex acts within a relationship, just like they use their mouths or anuses as parts of their sex acts; if so, then heightened scrutiny would be required. (Note that none of this deals with limits on the production of porn using human actors, which might be justified on the grounds of preventing sexually transmitted diseases, preventing the exchange of sex for money -- which is involved in the making of porn with professional actors -- and so on. Such limits might well not much burden any right to sex, since even if new porn were entirely banned, there'd be a vast reservoir of preexisting porn that should satisfy the tastes of most people. [I set aside here a couple's self-produced sexually themed movies aimed at their own gratification; query whether they'd be protected in any event under Stanley v. Georgia, a 1969 case that held that private possession of even obscene materials can't be legally punished.] On the other hand, especially these days, porn can be computer-produced without any human beings at all, and the actor-protection rationale wouldn't justify bans on such material.) So the case for
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Posted by Eugene Volokh: Decent Respect: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118771032 Should U.S. judges and U.S. politicians follow the views of international opinion on certain subjects? People who say yes often appeal to the Declaration of Independence's reference to what a decent respect for the opinions of mankind requires us to do. But, as Eugene Kontorovich, a lawprof at George Mason, [1]points out, in an eminently readable 8-page article (emphasis added), [The Declaration] shows that we should follow our own opinions, even when they diverge from the dominant views of Europe. Indeed, throwing off the rule of a sovereign monarch contradicted the dominant opinion of mankind. Thus the Declaration takes the view that all we owe to other nations is to explain our actions to them. Moreover, the Declaration was specifically drafted as an appeal for arms and money. The Founders understood that these would only be forthcoming if Britainâs Continental enemies thought the Colonists were committed to the fight for the long haul. Thus the âopinionsâ in question are opinions about the likely perseverance of the Colonists, not the legality of their rebellion. And the âmankindâ in question is France and Spain. If the Declaration reveals anything about the relevance of foreign law to constitutional interpretation . . . it suggests that the Foundersâ interest in the âopinions of mankindâ did not involve their opinions on the legality of American actions. . . . Well put -- and in retrospect obvious, though it's the sort of obvious that people often miss (as I'm afraid I had until I read Kontorovich's piece). References 1. http://www1.law.ucla.edu/~volokh/decentrespect.pdf ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Orin Kerr: Update on Linden, Texas Story: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118779703 The [1]Texarkana Gazette has an interesting story on how the residents of Linden, Texas are reacting to the national media attention arising from the case that I have blogged about [2]here and [3]here. References 1. http://www.texarkanagazette.com/articles/2005/06/12/local_news/news/news08.txt 2. http://volokh.com/archives/archive_2005_05_08-2005_05_14.shtml#1116021715 3. http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118276226 ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Eugene Volokh: Scientific Fundamentalism: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118781169 At the end of an otherwise quite interesting [1]Slate piece, which discusses the potential development of a consciometer -- a medical device for measuring consciousness -- the author shifts from science to law and morality (paragraph break added): As leading neuroscientist Michael Gazzaniga . . . describes . . ., current neurology suggests that a fetus doesn't possess enough neural structure to harbor consciousness until about 26 weeks, when it first seems to react to pain. Before that, the fetal neural structure is about as sophisticated as that of a sea slug and its EEG as flat and unorganized as that of someone brain-dead. The consciometer may not put the abortion issue to rest -- given the deeply held religious and moral views on all sides, it's hard to imagine that anything could. But by adding a definitive neurophysiological marker to the historical and secular precedents allowing abortion in the first two-thirds of pregnancy, it may greatly buttress the status quo or even slightly push back the 23-week boundary. There is another possibility. The implications of the consciometer could create a backlash that displaces science as the legal arbiter of when life ends and begins. Such a shift -- a rejection of science not because it is vague but because it is exact -- would be a strange development, running counter to the American legal tradition. Should a fundamentalist view of life trump rationalist legal philosophy? Roe v. Wade considered this question explicitly and answered no. For nonfundamentalists, that probably still seems right. This is a deep error; and it can be called scientific fundamentalism because of its tendency (similar to that in the most unpersuasive versions of religious fundamentalism) to assume that If It Isn't In [Science / The Bible / The Koran], It Doesn't Matter. What rule we should use for deciding when someone should have the legal right not to be killed is not a scientific question. Applying the rule may be a scientific question; if we decide that only entities that have consciousness have the right not to be killed, then science can tell us whether John Smith has consciousness. But deciding on the rule is simply not a scientific issue: It's a matter of moral judgment, which science isn't equipped to provide. Science can't tell us whether the legal right not to be killed vests at conception, at viability, at consciousness, or at birth; nor can it tell us when the right dissipates. Let's take a simple hypothetical, which I hope can persuade even people who feel a deep intuition that the right to be killed is closely connected to consciousness. Say it turns out that there's a disease that temporarily caused someone to lose consciousness -- not just in the sense of sleeping or getting knocked out, but in the sense of mental functioning largely ceasing -- but there was every reason to think that in several months the person would regain consciousness. Would it be OK to kill him then? (I realize that this is likely a counterfactual hypothetical, but I think it's still useful; and one can certainly imagine some future medical procedure that would turn off someone's mental functioning but keep the potential for functioning present, by stopping the brain from atrophying.) I take it that the answer is no, because the test wouldn't simply be whether the person is conscious; potential for consciousness, perhaps coupled with some other factors, would suffice. But why not then for a week-old fetus, which also has the potential for consciousness? Naturally, there are answers to this; the hypothetical isn't meant to support the life-begins-at-conception position. One could, for instance, argue that the test should be whether the entity either has consciousness, or has had consciousness and seems likely to recover it. Or one could say that the test should be whether the entity has the bulk of the physical equipment needed to support consciousness, even if consciousness is temporarily absent. These may or may not be perfectly sensible arguments. But science can't prove the validity or invalidity of these arguments. Nothing in biology, chemistry, physics, or any other science speaks to whether these tests ought to be the tests for a right not to be killed. So it makes little sense to say to someone who believes that the right not to be killed begins at conception: You are a fundamentalist who wants to displace science as the legal arbiter of when life ends and begins, rather than the rationalist legal philosopher you ought to be -- see this conscionometer that clearly proves that this fetus doesn't
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Posted by David Kopel: Racist and Religous Bigot to Teach Sensitivity to Police: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118781882 The Catholic League for Religious and Political Rights is [1]protesting the decision of the New Orleans police chief to use the Nation of Islam's security chief, Captain Dennis Muhammad to conduct the police department's sensitivity training. The Nation of Islam, led by Louis Farrakhan, is [2]well-known for promoting hatred of Jews, Catholics, homosexuals, whites, the U.S. government, and of black people who do not share the group's agenda. References 1. http://www.catholicleague.org/05press_releases/quarter%202/050614_farrakhan.htm 2. http://www.adl.org/special_reports/farrakhan_own_words2/farrakhan_own_words.asp ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Eugene Volokh: Comments for the Scientific Fundamentalism Post: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118786774 Please post them here; please keep them on-topic, substantive, and polite. (Because of a glitch, I couldn't add them to the original post.) ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Eugene Volokh: No Right to Same-Sex Marriage under the http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118796310 New Jersey Constitution, the [1]New Jersey intermediate appellate court holds, by a 2-1 vote -- one dissenter would have held that the opposite-sex-only rule in New Jersey law violates the state constitution. References 1. http://www.judiciary.state.nj.us/opinions/a2244-03.pdf ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by a href=http://www1.law.ucla.edu/~sander/;Rick Sander (guest-blogging)/a: Responding to Critics (3): Selection-Bias Blues http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118799904 Iâve posted in this space data that shows blacks who pass up the best law school that admits them, and go to their âsecond-choiceâ school, are closer in credentials to their classmates and have much better outcomes during and after law school. The postings have generated much discussion. Professor Dirk Jenter, while defending me from the social science nihilism of âMahan Atmaâ, offers a pointed critique of the âsecond-choiceâ analysis: isnât the analysis contaminated by self-selection? The students going to their second-choice schools are, of course, doing so consciously; maybe that means theyâre a group that believes they will optimize performance at a less elite school, which makes their subsequent, superior performance at those schools and on the bar exam less surprising. Selection-bias problems are an ever-present danger in this type of observational data, creating pitfalls which more than one of my critics have fallen into. It is probably not possible to eliminate entirely all danger of selection-bias in this comparison of first- and second-choice students, but I am pretty confident that thereâs little or no such bias here, for several different reasons. (See my [1]Reply to Critics for a fuller discussion) First, these students chose responses indicating that financial or geographic factors led them to turn down their first choice school and go somewhere else. And their other answers to the detailed surveys they completed were consistent with those answers â although they cared about school âelitenessâ almost as much as other students, they cared about âcostâ and âfinancial aidâ a lot, too. So, the motivations of these students didnât seem related to some kind of strategy of seeking out a less competitive environment. Second, we have a wealth of data about the strategies of these students as they started law school; in every way Iâve been able to measure, they seem to be approaching law school with strategies and expectations that are indistinguishable from all the other black students. For example, both the second-choice and other students are equally likely to respond that they are âvery concernedâ about getting good grades in law school (89% vs. 88%), and both groups are equally likely to think they are going to end up in the top tenth of their law school classes (37% vs. 38%). Blacks in general express more concern in the survey data about passing the bar â but, ironically enough, both black going to second-choice schools and all the other blacks tend to think that going to a more elite school will improve their chances on the bar. All of this data points against selection bias. Third, it is important to keep in mind that this entire exploration of the âsecond-choiceâ phenomenon is a way of confirming the hypotheses I developed and tested with entirely different data in my original article. I didnât observe this high performance among blacks going to second-choice schools, and then construct a theory around it; this data was brought to light by others after Systemic Analysis had gone to press. In Systemic Analysis, Iâm comparing blacks (as a group that generally is boosted into more elite schools by racial preferences) against whites (who sometimes receive preferences, but generally donât), while controlling for entering credentials. Certainly thereâs no self-selection process there (or only a little, accounting for students with mixed-race backgrounds). Whatâs nice about the first-choice/second-choice analysis is that it avoids arguable pitfalls of the white/black analysis, and vice versa. But both methods produce essentially identical results. âMichaelâ raises another interesting issue. In estimating the average âcredentials gapâ facing blacks at their second-choice schools (and comparing that with the credentials gap facing other blacks), I use the six loosely-defined âtiersâ in the LSAC-BPS database. The creators of this database grouped schools into âclustersâ by using some indicators of prestige (e.g., student scores) and some indicators unrelated to prestige (e.g., public sector vs. private sector). The six tiers certainly correlate substantially with school prestige, but they also undoubtedly overlap. So the most elite Tier 2 schools are almost certainly higher-ranked than the least elite Tier 1 schools, even though Tier 1 as a whole is clearly more elite than Tier 2 as a whole. Consequently, one needs to be careful about using the tiers in sensible ways. In the second-choice analysis, I know each studentâs grades (standardized by school) and individual outcomes (e.g.,
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Posted by Orin Kerr: Important Fourth Amendment Puzzle: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118678013 Here is an interesting legal question for readers interested in the Fourth Amendment. It involves a fact pattern that has started to come up quite often in the last year or two, but that no court has yet addressed. It's pretty puzzling, too, and it has lots of police officers and prosecutors unsure of what to do. I'd be interested in readers' thoughts on it. Here's the problem. Imagine that the police believe that there is evidence of crime on a suspect's computer, but they lack probable cause to obtain a warrant to search it. The police ask the suspect if he will consent to allow the police to search the computer for evidence. The suspect agrees, and gives the police his computer to be searched. A few days later, the suspect talks to an attorney and the attorney advises the suspect to revoke his consent and demand the return of the property. The lawyer (or the suspect) calls the police and withdraws consent to search the computer. In cases of traditional physical evidence, the law here is very clear. The basic Fourth Amendment rule is that the police can conduct a search if someone with common authority over the computer consented, but that they have to stop their search if and when the consent is revoked. Given that rule, it's clear that any search of the defendant's actual computer would have to stop when the suspect withdraws his consent. But here's the twist. It turns out that the first step a computer forensic analyst takes when seeking to retrieve evidence from a hard drive is to create a bitstream copy or image of the computer hard drive. The image is an exact copy of the hard drive that copies every one and zero on the drive. It is created for reasons of evidentiary integrity; searching a computer drive can alter the data it contains, so analysts copy the originial and do all of the analysis on the image copy. After the drive has been imaged, there are two copies of the data, not one: one copy of data on the defendant's property and another copy on the government's machine. Now, back to our hypothetical. It turns out that a suspect often withdraws his consent after the computer has been imaged, but before government has begun to search the image. (This is common because imaging can be done in a few hours, but most government forensic labs have long waiting lists for the actual analysis.) So here's the big question: When the suspect withdraws his consent, does the withdrawal of consent also apply to the image? Can the police search the imaged copy, or will searching the imaged copy without a warrant violate the Fourth Amendment? In doctrinal terms, soes a defendant retain a legitimate expectation of privacy in the image, and if so, does his common authority to regulate consent to search the original apply equally or differently to the copy? I think there are two ways of looking at the problem. On one hand, you could say that the image is like a photograph taken during a search. The image is the government's own copy of what the government software saw when it looked through the suspect's computer. In that case, you might say that the image belongs to the government, and the suspect can no longer withdraw his consent to the search. Having obtained the initial consent to search the computer, they can search the image after consent has been revoked. On the other hand, you could say that the image is actually just as private as the original version of the data. What matters is the data, and it makes no sense to say that the government has seen the data when no search has actually occurred. The imaging software copied the private file but never exposed the data, and the copy is no different from the original. In that case, all of the data continues to belong to the suspect, and the defendant's withdrawal of consent applies equally to the original hardware and the image. So which is right? For reasons I explain in [1]this forthcoming artice (see section II), I think the latter view is probably right. The right to search the image should track the right to search the original, and a withdrawal of consent to search the latter should also apply to the former. Still, it's a pretty difficult question, as the answer hinges on how you address all sorts of tricky questions concerning what it means to search and seize digital evidence. One interesting variable: does the answer depend on the exact language of the consent agreement? I can imagine a court saying that a defendant's withdrawal of consent is binding on a search of the image if the defendant agreed generally to allow the government to search his computer, but that the withdrawal is not binding on
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Posted by Eugene Volokh: a href=http://www.legalaffairs.org/webexclusive/debateclub_vouchers0605.msp;School Choice Debate/a, at iLegal Affairs/i: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118684827 Clint Bolick (President and General Counsel for the Alliance for School Choice) vs. Laura Underkuffler (Professor at Duke Law School); should be much worth reading. ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Eugene Volokh: Firings for Self-Defense: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118688078 [1]Prof. Bainbridge offers a dissenting opinion to [2]the West Virginia Supreme Court's decision. I think his argument is quite powerful, though I think it's weakened by the gun nut references. You don't have to be a gun nut or a nut of any sort to want to defend yourself against a criminal, to applaud others who do so, or even to endorse limitations on employment at will when people are fired for exercising their right to self-defense. Conversely, one can conclude that employers should be free to set up their own rules here, or even conclude that employers are wise to set up a no-self-defense (or no-self-defense-with-guns) rule -- a matter on which I express no opinion here -- without condemning the other side as gun nuts. References 1. http://www.professorbainbridge.com/2005/06/at_will_employm.html 2. http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118499071 ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Eugene Volokh: Blogger Catches University Dean in Commencement Address Plagiarism: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118689668 See [1]Sally Greene's post on this; the story has made the Chronicle of Higher Education. This strikes me, for a variety of reasons, as a lesser sin that plagiarism in a scholarly publication -- but it's a sin nonetheless. [2]Eric Muller (IsThatLegal?) has more; and thanks to him for the pointer. References 1. http://greenespace.blogspot.com/2005/06/striking-similarities-and-differences.html 2. http://www.isthatlegal.org/archive/2005/06/prominent_histo.html ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Orin Kerr: Comment on Firings for Self-Defense: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118694907 I'm not quite sure what to make of the 2001 [1]West Virginia decision recognizing a self-defense exception to employment at will that co-blogger David K. [2]discussed on Saturday. But I wonder if the scope of the decision isn't narrower than most commenters seem to assume. The Court's decision answers a federal district court's request to resolve a question of West Virginia law, but it does not actually apply its doctrine to any set of facts. So the Court did not decide that the 7-11 employee couldn't be fired, or even that he acted in self-defense; it only created a legal framework for deciding when an employee's conduct taken in self-defense could be used as a basis for firing him in an employment-at-will context. How often will the West Virginia decision make a difference? I'm no expert in such things, but sense is, not very often. Self-defense is a well-known concept in criminal law, and the West Virginia case appears to incorporate that criminal law standard. But self-defense is also a limited right, and not the kind of thing that is likely to lead to an employee being fired. Consider an example. Imagine that 7-11 has a policy that employees are not allowed to carry guns, but an employee does so anyway. A robber attempts to rob the store, and the 7-11 employee pulls out his gun and scares off the robber. The employee is fired by 7-11 for carrying the gun in violation of 7-11 policy. What result? I'm not entirely sure, but my best guess is that the firing would be proper under the West Virgina case. (FWIW, I looked for cases interpreting the West Virginia case since it was decided in 2001, but didn't find any.) Self-defense is used in criminal law to mean a defense to an affirmative act like an assault or homicide, not to a continuous course of conduct. Even then, it normally requires an immediate threat. As a result, a 7-11 employee who carries a gun at work would not seem to have a self-defense justification for carrying the gun as a matter of criminal law. (I realize that this does not match a layman's understanding of what it means to take an act in self-defense, but that's the law for you.) While the employee may have showed the gun to ward off the robber, he presumably would be fired for carrying a gun generally, not for showing it at the moment of the attempted robbery. And as best I can tell, self-defense would not apply to that. I'll open this up for comments. As always, civil and respectful comments only. References 1. http://www.state.wv.us/wvsca/docs/fall01/29564.htm 2. http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118499071 ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Jim Lindgren: Will Kerry's Military Records be Released to the Public?-- http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118631161 Thomas Lipscomb of the Chicago Sun-Times has a [1]column on nagging doubts about the Kerry releases of military records to the Boston Globe and the LA Times (tip to [2]Powerline). An excerpt: Now that the Boston Globe has in its possession what it claims are Kerryâs âfull military and medical recordsâ is the Globe ready to make these much-anticipated records available to the public? Managing Editor Mary Jane Wilkinson replied, âIt is my understanding that Kerry will release these papers to anyone else now that he has signed the Form 180. The Boston Globe is not going to make available the papers we have received.â But âthe onus is on the Globe to explain why they are not releasing the records. They at least ought to give the public some reason,â according to former journalism dean and Fordham University Larkin professor Everette Dennis. âWith the opportunity to release the Kerry material on the internet inexpensively, there certainly is no physical problem preventing the Globe from publishing them,â Bill Gaines, a two-time Pulitzer Prize winner and Knight Professor of Journalism at the University of Illinois, told me. âThe decision they have made certainly doesnât seem to be in the interest of their readers and not very good journalism.â Both the Boston Globe and Los Angeles Times claim that Kerry will release any papers in their possession to anyone else who applies. But that isnât what The New York Sunâs Josh Gerstein found when he called Kerryâs able press representative, David Wade. Gerstein reports: âAsked whether the senator would permit release of the records to The New York Sun, Mr. Wade said, âThe issue is over.â But it isnât. And it wonât be until the public has access to the SF-180 which procured release of the papers. Freedom of Information Act requests for it are now under way. Those requests will most likely be successful, perhaps as early as next week. And there is nothing barring its release before those requests are processed but John Kerry, and The Los Angeles Times and The Boston Globe. ... And The Boston Globe made several calls to editors at the Chicago Sun-Times, complaining that I was giving them the kind of unpleasant treatment reporters give sources who stonewall on questions about matters they think are of vital public interest. They were right. I was. And those questions got the Globe to admit they had the SF-180 two days later. Perhaps now they will release it and even Kerryâs worst critics will find it in order and finally be silenced. In that case, David Wade may be right: âThe issue is over.â I also have a brief post on Kerry's grades. References 1. http://www.editorandpublisher.com/eandp/columns/shoptalk_display.jsp?vnu_content_id=1000955265 2. http://powerlineblog.com/archives/010719.php ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Orin Kerr: More Than 100 Law Professor Bloggers: http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118639318 Daniel Solove has posted a [1]very interesting list of all of the blogging law professors in the United States -- or at least all of the ones a group of us could recall. Dan counts 103 blogging law professors so far. My estimate is that about half of them have begun blogging in the last 12 months. It will be interesting to see how this list changes over time. Blogging is a natural medium for law professors: most law professors are generalists, good writers, interested in the world around them, and have the free time to sit around and blog. The medium provides an easy way to bridge the gap between scholarly audiences and the interested public. Blogospheric triumphalism is all too common, but my guess is that blogging will prove to be an increasingly common part of law professor life. References 1. http://prawfsblawg.blogs.com/prawfsblawg/2005/06/law_professor_b.html ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by David Kopel: W.V. Court Vindicates Self-defense Right for Employees: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118499071 In [1]Feliciano v. 7-Eleven, a masked woman with a gun attempted to rob the 7-Eleven where Feliciano worked. While the robber was distracted by another employee, Feliciano grabbed her gun, and held her captive until the police arrived. Following this incident, 7-Eleven terminated Feliciano, who was an at will employee, for failure to comply with its company policy which prohibits employees from subduing or otherwise interfering with a store robbery. The West Virginia Supreme Court cited numerous precedents showing that the right of self-defense is very well-established and substantial public policy. Accordingly: we hold that when an at will employee has been discharged from his/her employment based upon his/her exercise of self-defense in response to lethal imminent danger, such right of self-defense constitutes a substantial public policy exception to the at will employment doctrine and will sustain a cause of action for wrongful discharge. Consistent with our prior precedent, we hold further that an employer may rebut an employee's prima facie case of wrongful discharge resulting from the employee's use of self-defense in response to lethal imminent danger by demonstrating that it had a plausible and legitimate business reason to justify the discharge. References 1. http://www.state.wv.us/wvsca/docs/fall01/29564.htm ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Eugene Volokh: Prescription Drugs and Drug Abuse: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118426997 A few days ago, I [1]questioned Justice Thomas's statement that [U]nder the [Controlled Substances Act], certain drugs that present a high risk of abuse and addiction but that nevertheless have an accepted medical use -- drugs like morphine and amphetamines -- are available by prescription. No one argues that permitting use of these drugs under medical supervision has undermined the [Act's] restrictions. I had meant to blog a link to [2]Mark Kleiman's thoughts on the subject, but it fell through the cracks. But better late than never; check it out. Here are some excerpts: It depends, both on the rigor of controls on prescription drugs and on the availability of non-pharmaceutical supplies of the drug in question or substitutes for it. Dexamphetamine used to leak massively from the prescription market into the illicit market . . . . Morphine doesn't leak much because there's not much illicit demand for it, but hydromophone (dilaudid) and miperidine (Demerol) are much sought-after as heroin substitutes. The semi-synthetic opioids hydrocodone (Vicodin) and oxycodone (Percodan, Oxycontin) have thriving diversion markets. . . . In the cannabis case, insofar as the buyers' clubs function as convenient retail outlets, they may do a little bit to increase the availability of pot for non-medical use, though of course the places most receptive to the presence of such clubs tend to be the places where strictly illicit cannabis is easiest to obtain. But the ubiquity of the illicit cannabis supply, in both geographic and social space, greatly reduces the impact of making it medically available. . . . References 1. http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118084871 2. http://www.markarkleiman.com/archives/drug_policy_/2005/06/prescription_diversion_and_drug_abuse.php ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by a href=http://www1.law.ucla.edu/~sander/;Rick Sander (guest-blogging)/a: Responding to Critics (1): A New Test of the Mismatch Theory: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118436252 The basic argument of [1]Systemic Analysis is simple: if there is a very large disparity at a school between the entering credentials of the âmedianâ student and the credentials of students receiving large preferences, then the credentials gap will hurt those the preferences are intended to help. A large number of those receiving large preferences will struggle academically, receive low grades, and actually learn less in some important sense than they would have at another school where their credentials were closer to the school median. The low grades will hurt their graduation rates, bar passage rates, and prospects in the job market. This is what I call the âmismatch effect.â My paper tested this idea by comparing the outcomes of whites (who generally receive small or no admissions preferences from law schools) with blacks (who generally receive large, race-based preferences) to compare the outcomes of students who start with similar credentials. My results are robust and, as Iâll discuss in coming days, have withstood criticism pretty well. But I and everyone else agree that it would be preferable to compare blacks with other blacks. In other words, the ideal control group for examining blacks who receive large racial preferences would be a group of blacks who received smaller preferences, or no preferences at all. As I discuss in my Stanford [2]âReply to Criticsâ, such a comparison group not only exists â we now even have data on their outcomes. After Systemic Analysis had gone to press, Ian Ayres and Richard Brooks at Yale pointed out that the Law School Admissions Council, in one of the surveys administered to students in its Bar Passage Study (a major source for my paper), had asked the students in detail about how they applied to, and selected, the law school they attended. About ten percent of the 1800-odd blacks in their study reported that they had chosen to pass up their âfirst-choiceâ school even though they had been admitted to that school. Most of these students apparently went to a lower-choice school because of financial aid offers or for geographic reasons. The data suggests that these black âsecond-choiceâ students had credentials substantially closer to those of their classmates. Compared to other blacks, these blacks closed nearly half the credentials gap. These âsecond-choiceâ students are not a perfect control group, of course â no one was randomly assigned to attend schools offering different levels of racial preference â but it is about as good a chance to test the mismatch theory as we are likely to have for some time. If the theory is right, then the second-choice students should have better outcomes: higher graduation rates and more success on the bar. In the table below, I make predictions about how the blacks going to their second-choice schools should perform, based on simple linear assumptions (if blacks going to second-choice schools close one-third of the credentials gap with their classmates, they should close a proportionate amount of the outcomes gap, once one controls for index differences). If the theory is wrong, in contrast, then of course the blacks going to second-choice schools should have about the same outcomes as blacks who took full advantage of the preferences they were offered. In the data presented below, weâd expect the blacks going to second-choice schools to do slightly better, since they somewhat better index scores than the average black law student (but this difference alone would only close about one-eighth of the gap in outcomes). The actual outcomes look like this: Outcome White Success Rate Success Rate for Blacks Other Than Those Going to Second-choice school My prediction of success rates for blacks going to second-choice school Actual Success Rate for blacks going to second-choice school Graduate from Law School 92.2% 81.1% 86.3% 89.9% Pass Bar on First Attempt 92.1% 59.6% 74.8% 80.3% Pass Bar Eventually 96.8% 77.1% 87.6% 86.1% Proportion of Original Cohort Becoming Lawyers 83.3% 57.0% 69.3% 69.0% These are pretty remarkable results. The âmismatchâ predictions are either right on target or, in some cases, too low. The differences in success rates between black law students generally and those going to their second-choice schools are huge. As with everyone else, the black second-choice studentsâ outcomes depend heavily on their grades. But these blacks are substantially less mismatched than other blacks, and they get substantially
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Posted by Todd Zywicki: Suitably Flip: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118313981 New libertarian/conservative blog looks pretty interesting--[1]here. References 1. http://suitablyflip.blogs.com/ ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Orin Kerr: Justice Kennedy's Vote in Raich: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118332759 In his [1]National Review piece on Raich, co-blogger Randy suggests that Justice Kennedy's vote in the case was inexplicable: Veteran Supreme Court reporter [2]Lyle Dennison has suggested that Justice Kennedy [voted to reverse in Raich because he] has a zero-tolerance approach to drugs. Justice Kennedy's deportment during oral argument supports that theory, but we will never know because he joined the majority opinion without comment. . . . How [Kennedy] reconciles his expressed support for the traditional law-enforcement role of the states with his joining what can only be described as the opposite view expressed by Justice Stevens only he can say. But he chose not to. But is Kennedy's vote in Raich really such a mystery? Justice Kennedy broadcast a decade ago in [3]his Lopez concurrence that while he valued federalism, and he was going to enforce federalism values in a number of contexts, he was not going to favor any positions that upset the basic settled view of the scope of the Commerce Clause: [T]he Court as an institution and the legal system as a whole have an immense stake in the stability of our Commerce Clause jurisprudence as it has evolved to this point. Stare decisis operates with great force in counseling us not to call in question the essential principles now in place respecting the congressional power to regulate transactions of a commercial nature. That fundamental restraint on our power forecloses us from reverting to an understanding of commerce that would serve only an 18th century economy, dependent then upon production and trading practices that had changed but little over the preceding centuries; it also mandates against returning to the time when congressional authority to regulate undoubted commercial activities was limited by a judicial determination that those matters had an insufficient connection to an interstate system. I realize that Randy believes his argument in Raich successfully distinguished [4]Wickard v. Filburn, such that it was possible to rule in his favor without overruling any cases. But the relevant question is not whether Raich can be distinguished from Wickard on its facts; the question is whether Randy's argument in Raich could comfortably coexist with the settled broad understanding of the Commerce Clause that Wickard helped cement. On the latter question, I think the answer is plainly no. The Raich case asked the Court and Justice Kennedy to shift the settled understanding of post-Wickard Commerce Clause doctrine in a very real and important way. Justice Kennedy announced in 1995 that he was going to decline such an invitation, and that's exactly what he did a decade later in Raich. References 1. http://www.nationalreview.com/comment/barnett200506090741.asp 2. http://www.scotusblog.com/movabletype/archives/2005/06/commentary_just.html 3. http://straylight.law.cornell.edu/supct/html/93-1260.ZC.html 4. http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=volpagecourt=usvol=317page=127 ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by David Kopel: Is Resisting Genocide a Human Right? http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118340178 That's the title of the [1]law review article in progress that Paul Gallant, Joanne D. Eisen, and I have posted as a Working Paper. Conducting an in-depth study of the genocide in Darfur, Sudan, and also discussing other genocides, the article details the inadequacy of many of the international community's response to genocides, including targeted sanctions or international peacekeeping forces. Examining international legal authorities such as the Genocide Convention, the Universal Declaration of Human Rights, and the International Court of Justice, the article demonstrates that groups which are being subjected to genocide have a legal right of self-defense. International treaties, Security Council arms embargoes, or national gun control laws cannot lawfully be enforced in a manner which prevents self-defense resistance to a genocide in progress, because under international law, the prohibition against any form of complicity in genocide takes legal precedence over lesser laws. We welcome your comments, which can be sent to the e-mail address at the lower left of my [2]home page. References 1. http://www.davekopel.com/2A/Foreign/genocide.pdf 2. http://www.davekopel.com/ ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Orin Kerr: Scalia's Vote In Raich: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118350645 I've read lots of speculation in the blogosphere that Justice Scalia voted in the government's favor in the Gonzales v. Raich case because he's a social conservative who wants the government to crack down on drugs. If that's true, though, why did he vote in favor of the marijuana grower in [1]Kyllo v. United States? And why did he vote in favor of the crack dealer in [2]Booker v. United States? Is the idea that Scalia is principled when he votes in favor of defendants, but is just a social conservative when he votes in favor of the government? References 1. http://straylight.law.cornell.edu/supct/html/99-8508.ZO.html 2. http://straylight.law.cornell.edu/supct/html/04-104.ZO.html ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Eugene Volokh: Key to iYou're the Top/i, http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118358287 in [1]Slate. (I figure that since Sasha is off-blog due to clerking, I have to fill in for him now and again, and this is the sort of thing he'd link to.) References 1. http://slate.com/id/2120550/ ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Eugene Volokh: Pressure on Companies to Pay Money for Someone's Participation in the Slave Trade: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118360675 [1]Jeff Jacoby aptly criticizes this movement. References 1. http://www.boston.com/news/globe/editorial_opinion/oped/articles/2005/06/09/the_slavery_shakedown/ ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Orin Kerr: Who Wants to Draft Judge Prado?: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118246328 Both [1]How Appealing and [2]SCOTUSblog provide links today to a new website, [3]www.DraftPrado.org, that claims to be part of an independent grassroots campaign to encourage President Bush to nominate Fifth Circuit Judge Ed Prado to the Supreme Court. A Supreme Court Justice for All Americans Imagine a Supreme Court nominee with a mainstream approach to the law who has earned the respect of both Republicans and Democrats. Imagine a nominee for the Supreme Court of unquestioned stature with decades of judicial experience. Stop imagining... Meet Judge Ed Prado. The idea that some average Americans might come together to push a little-known judge for a seat on the Supreme Court is pretty interesting, so I figured I would look into it and see who is behind the campaign. The campaign's website states that it is being run by people who, [i]n an era of intense partisanship, . . . believe the time is right to come together around a highly qualified consensus nominee. It lists a few names in particular: Arkadi Gerney, Marc Laitin, and Tim Cullen. I googled Arkadi, Marc, and Tim to see if I could find out more about who they are. [4]It turns out that Arkadi, Marc and Tim have together led at least three other campaigns in the last two years, the goals of which might give you a little perspective on this latest independent effort: [5]Run Against Bush: A Movement to Defeat George W. Bush in 2004 Launched late 2003, the Run Against Bush campaign raised over $450,000 in small donations from over 11,000 runners across the country. [6]The KerryConnector Started in July 2003, the Kerry Connector was an online grassroots meeting and house-party tool that was partially integrated into the Kerry campaign website in October 2004 and was a model for the John Kerry Volunteer Center (www.volunteer.johnkerry.com/) that premiered in June, 2004. [7]Concerts for Kerry / Concerts for Change Launched in March 2004, the Concerts effort raised more than $370,000 to support John Kerry from 16,000 concertgoers at events around the country. References 1. http://legalaffairs.org/howappealing/060805.html#003449 2. http://www.scotusblog.com/movabletype/archives/2005/06/blog_roundup_we_1.html 3. http://www.draftprado.org/ 4. http://cgl-group.com/taxonomy/term/13 5. http://www.runagainstbush.org/ 6. http://cgl-group.com/node/9 7. http://cgl-group.com/node/7 ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Eugene Volokh: Karns Elementary School Students Barred from Discussing a Certain Subject During Recess: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118249488 A 10-year-old student and his friends were barred from engaging in a certain kind of speech during recess at Karns Primary School. The recess in that school, I'm told, is about 30 minutes long, and students are generally allowed to play, sit and read, talk, and do lots of other things. But this student and his friends were barred from engaging in one particular kind of speech. What is this speech that a Kentucky school has decided must be banned? 1. Wearing black armbands to protest the war. 2. Displaying a confederate flag. 3. Discussing the Wiccan neo-pagan religion. 4. Wearing insignia that depicted firearms. 5. Something else. And the answer is . . . #5, specifically discussing the Bible. Those are the charges levied in [1]a lawsuit filed by the student's parents (see [2]the Complaint here). The Principal's letter to parents specifically says that children could not have a Bible study class -- which apparently includes an informal group of a few kids sitting around and talking in the schoolyard -- during recess; I have seen a copy of it myself. I've long been appalled by the willingness of government officials to discriminate against religious speech this way. It's true that under the Court's Establishment Clause caselaw the government generally may not itself engage in religious speech (especially in K-12 schools), nor may it give preferential treatment to religious speech. But this ban on government preferences for religious speech doesn't require or authorize discrimination against private religious speech. Such discrimination is itself unconstitutional; it violates the Free Speech Clause, and in my view the Establishment Clause and Free Exercise Clause as well (though that's less clear than the Free Speech Clause violation). Here, the students were trying to talk religion on their own, in a time and place in which students were perfectly free to talk about other subjects (sports, television, politics, and so on). This wasn't an organized class activity. (School officials naturally are entitled to more control over speech in such activities, for a variety of reasons.) Any students who weren't interested in talking or hearing about the subject were free not to talk or hear about it. There was, to my knowledge, no evidence that the speech would cause material disruption. And ten-year-olds are perfectly capable of distinguishing what their classmates say on their own from what the school is saying or endorsing as true, and the speech in this instance was clearly on the classmates say on their own side of the line. Unless there's something seriously missing from the news story and the Principal's letter, there seems to me to be no justification for this, except an assumption that separation of church and state (a rather misleading phrase) requires the state to suppress speech by students, who are clearly not the state. The Supreme Court has repeatedly rejected this assumption, for over two decades in education generally, and over a decade as to K-12 education in particular; and so have lower courts. It bothers me that so many school officials still haven't gotten the message, and continue to violate students' First Amendment rights. References 1. http://www3.knoxnews.com/kns/local_news/article/0,1406,KNS_347_3826676,00.html 2. http://www.telladf.org/UserDocs/WhitsonComplaint.pdf ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Orin Kerr: Blogging Can Change Your Life: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118252090 [1]Daniel Solove reflects on his first month as a blogger. References 1. http://prawfsblawg.blogs.com/prawfsblawg/2005/06/how_blogging_ch.html ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Todd Zywicki: Mike Greve on the Constitution In Exile: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118261689 Must reading, as always, [1]here. The abstract: Liberal academics and newspapers have proclaimed that the Rehnquist Court and conservative intellectuals are attempting to resurrect a pre-New Deal âConstitution in Exile.â This absurd campaign illustrates the intellectual impoverishment of what now passes for âprogressiveâ constitutional thought. Still, liberals are right in suggesting that conservatives may not have thought as sharply and constructively about constitutionalism as they should. This Outlook discusses the liberal constitutional project. The next Outlook will outline a conservative response. References 1. http://www.aei.org/publications/filter.all,pubID.22622/pub_detail.asp ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Eugene Volokh: a href=http://www.sctnomination.com/blog/;The Supreme Court Nomination Blog/a: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118269451 This is the blog put up by Goldstein Howe, a major Supreme Court litigation boutique and the operator of [1]SCOTUSblog. My question: How influential is the blog likely to be during the Supreme Court nomination season? My conjecture: Very. I don't know how many hits it will get, but I suspect that: 1. Most journalists who are covering the debates, and politicos involved in the debates, will check it routinely, and will be influenced to some extent by what is written there. 2. People who want to influence the debate will dearly love to get their points picked up by the GH bloggers. 3. As with all editors and reporters, the bloggers will occasionally have opportunities to influence the process, for instance by deciding what to stress, what things to cover more than other things, what to investigate further, when to post certain things, and so on; it will be up to the GH people to decide whether they want to use the opportunities, and how much. Of course, this raises another point: What other Supreme Court Nomination Blogs will there be out there? And how will they persuade reporters and politicos to read them, as well as the GH blog? References 1. http://www.scotusblog.com/movabletype/ ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Eugene Volokh: I Am Glad To Live in a Country http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118270943 in which the President does not say things like: Let us stop drinking from the enchanted waters of Lethe, which strike with amnesia those who want to quench their thirst, and let us dare to taste those 'fresh waters that run from the Lake of Memory' -- as the words say on the golden bars of the disciples of Orpheus, that bard of metamorphosis and of ascending reincarnation. ([1]The Telegraph (U.K.), quoting the new French Prime Minister, Dominique de Villepin; thanks to [2]Best of the Web for the pointer.) In fact, maybe that should be our reaction any time President Bush is mocked for misspeaking: Hey, at least it's not 'Let us stop drinking from the enchanted waters of Lethe . . . .' References 1. http://opinion.telegraph.co.uk/opinion/main.jhtml?xml=/opinion/2005/06/05/do0510.xml 2. http://www.opinionjournal.com/best/ ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by a href=http://www1.law.ucla.edu/~sander/;Rick Sander (guest-blogging)/a: Systemic Analysis of Affirmative Action in American Law Schools: Responding to the Critics http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118273427 Although my article on affirmative action appeared in the Stanford Law Review less than five months ago, a legion of critics has sprung into print, publishing rebuttals with very non-ivory-tower speed. By my (probably incomplete) count, eleven articles entirely devoted to âdebunkingâ Systemic Analysis have been published or accepted for publication in legal or education journals, and dozens of more informal critiques have appeared in the media and a variety of websites. Through most of this period, Iâve tried to focus on taking the criticisms to heart â understanding the arguments, looking closely at the evidence, and trying to separate the wheat from the chaff. I am publishing a lengthy response to critics in the May issue of the Stanford Law Review (which probably wonât be out for another four weeks) and a shorter response in the June issue of the Yale Law Journal (which should be out in two or three weeks). These responses tend to be pretty technical and very detailed. What I would like to do in this space, for the next couple of weeks, is something more informal and, I hope, more interactive. So starting Friday, June 10th in this space, I will examine seriatim the fallout and controversies that followed in the wake of Systemic Analysis. I will leave an open comments section at the end of each post, and on the following workday Iâll both cover a new topic and address significant questions raised in the last dayâs comments. If any of the major critics or commentators on the article is willing, Iâd love to arrange an on-line debate on this or any other site. My goal is to have a substantive, issue-driven discussion that goes into some depth while avoiding arcane terminology. In the first column this Friday, I will discuss a new data source which no one, including myself, had looked at before Systemic Analysis was published, and which provides the most definitive test yet devised for the arguments Iâve advanced about racial preferences. ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Orin Kerr: Still Outrageous: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118276226 [1]Mark Kleiman has an update in the disturbing case about the four white men in Linden Texas who brutally beat a retarded African-American man and received only light sentences. Fortunately, the [2]Chicago Tribune is on the case. References 1. http://www.markarkleiman.com/archives/the_wayward_press_/2005/06/racism_in_the_linden_incident.php 2. http://www.chicagotribune.com/news/nationworld/chi-0506050298jun05,1,3120599,print.story ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Orin Kerr: Bill O'Reilly Cancelled For Lack of Interest: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118277280 No, not his show; [1]his week-long Caribbean cruise. The story's clever ending: I'm very, very disappointed, said liberal political comedian Al Franken. My wife and I had made it our vacation, and we really had been looking forward to the cruise and hearing Bill O'Reilly talk about the American values all while sailing the high seas. Thanks to [2]Punch Judy for the link. References 1. http://www.nydailynews.com/news/gossip/story/316836p-271032c.html 2. http://www.xanga.com/home.aspx?user=judithemily ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Eugene Volokh: Blame Canada: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118156744 From the [1]Allentown Morning Call: The 17-year-old Bucks County boy charged with having bomb-making equipment in his bedroom and threatening to blow up his school is a Canadian who hates Americans, prosecutors say. . . . District Attorney Diane E. Gibbons said police are trying to determine the boy's motive but added, He is very unhappy with Americans and would prefer to be in Canada. . . . What next? Rampaging Norwegians? (Yes, I know, but that was a thousand years ago.) Mad Swiss bombers? Can no-one be trusted? References 1. http://www.mcall.com/news/local/all-a1_2bombjun04,0,6959490.story ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Orin Kerr: Raich and Prosecutorial Discretion: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118161376 [1]Bloomberg has an interesting story about the consequences (or lack thereof) of yesterday's Raich decision: Federal law enforcement officials in San Francisco said they don't intend to crack down on medical pot users, who under California state law are allowed to buy and smoke marijuana with a doctor's permission. About 40 marijuana clubs in the city, which operate without interference from local police, are likely to continue in the wake of the Supreme Court decision that federal drug laws ban use of medical pot. We respect the state law, said Javier Pena, special agency in charge at the San Francisco office of the U.S. Drug Enforcement Agency. I can't tell you we are going to shut down all those clubs tomorrow. Our efforts will remain targeted at the trafficking organizations. We've never targeted the user, the sick people, the dying people. The DEA in San Francisco has shut down two of the city's pot clubs and arrested two people in connection with club operations in the last two years, said Casey McEnry, an agency spokeswoman. . . . California Attorney General Bill Lockyer said the U.S. has always been able to prosecute medical marijuana users for violating federal drug laws and has rarely done so. This doesn't represent a big change for the potential for federal enforcement, Lockyer said in a telephone interview. Our medical marijuana users were always exposed to the possibility of federal prosecution; there haven't been that many. This is an important point, I think. The idea of the federal government going after very ill people who are growing marijuana for medical purposes strikes many (including me) as an obvious misuse of power, if not an outrageous one. But the reality is that prosecutions, while not nonexistent, are rare. Giving the feds the power to prohibit doesn't mean that they actually will, and history suggests that they usually don't. As a result, Raich doesn't mean the difference between a world with home-grown medical marijuana for the very ill and a world without it. Rather, it means a world in which home-grown medical marijuana is advertised and public versus a world in which the practice is more quiet and the feds mostly look the other way. References 1. http://www.bloomberg.com/apps/news?pid=1103sid=aVi6eu3oFtKErefer=us ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Orin Kerr: Happy Hour Reminder: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118173792 Just a reminder that this Thursday, June 9th, from 6:30pm to 8:30pm, the VC will be hosting its first Official VC Happy Hour at [1]Karma Lounge (19th and I Streets) in DC. I'm expecting 3 or 4 Conspirators, a few [2]PrawfsBlawgers, and I think some [3]SCOTUSbloggers, too. All are welcome. References 1. http://www.karmadc.com/ 2. http://prawfsblawg.blogs.com/prawfsblawg/2005/06/commencement_da.html 3. http://www.scotusblog.com/movabletype/ ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Orin Kerr: Right, Left, and the Legal Blogs: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118179393 Over at [1]PrawfsBlawg, Hillel Levin is asking an interesting question -- why is it that an unusual number of popular legal blogs tend to be right-of-center? I'm not entirely sure the trend exists, and if it does, I'm not quite sure the reason is other than random chance. But it's an interesting question. References 1. http://prawfsblawg.blogs.com/prawfsblawg/2005/06/right_and_left_.html ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Orin Kerr: Brooks on Gunners: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118071256 David Brooks has an [1]interesting essay on the peculiar ways of overly ambitious recent college grads looking to make it big in the world of politics, journalism, and the like. I assume Brooks is a being more than a little autobiographical; he identifies the type with unusual accuracy. References 1. http://www.nytimes.com/2005/06/05/opinion/05brooks.html?ex=1275624000en=8d105859570ef902ei=5090partner=rssuserlandemc=rss ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Todd Zywicki: People Who Don't Shop at Wal-Mart Oppose New Cleveland Wal-Mart: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118071574 From today's [1]Cleveland Plain-Dealer: This is why so many job-starved Clevelanders have voiced concerns. Consider the coalition that is building: civil rights groups, elected officials, labor unionists, ministers, small business owners, and, most recently, Cleveland bloggers. We raise our voices in opposition because of the negative effects of a Wal-Mart Supercenter on our town. In other words, Cleveland's elites who don't shop at Wal-Mart are opposed to allowing other people to shop at Wal-Mart. And those with jobs are raising their voices on behalf of job-starved Clevelanders. Real profiles in courage. Good thing they weren't around when the dry goods stores and blacksmiths were feeling competitive pressures many years ago from supermarkets and the horseless carriage. Instead of a Wal-Mart, [2]some propose a new barter system among downtown businesses (to prove I'm not making this up, I quote): Instead of a Wal-Mart why not: Use the steelyard site to set-up a bartering community between local businesses. Some years ago I was in Connecticut visiting a college friend for a time. Local businesses had joined together and created a bartering system which allowed small business owners to spend real money on other things. An example: A portrait painter needed some film developed. Instead of going to the nearest big box, she took it to a local developer who was part of the barter network and used some barter points to pay for it. The photo guy might have needed a birthday cake for his daughter and will use his barter points to purchase the cake from a local baker that is part of the barter network. The baker needs his car repaired and so uses his barter points at a local mechanic. The mechanic has been saving up her barter points and decides to get a portrait made for her sister and so she goes to the original portrait painter. When I was working on my graduate degree in Economics at Clemson, many of the small businesses around Clemson actually had a flourishing barter system, like that described. But the operative term to describe it there was tax dodge. Barter and in-kind contributions among various local businesses was a system for buying and selling goods and services without having to pay taxes on it. And I doubt that it was justified as an alternative to Wal-Mart. References 1. http://www.cleveland.com/news/plaindealer/othercolumns/index.ssf?/base/opinion/1117963924206410.xmlcoll=2 2. http://www.noclevelandwalmart.org/ ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Orin Kerr: Key Sections in Gonzales v. Raich: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118072212 I'm reading through the opinions in Gonzales v. Raich, and I thought I would post the key sections as I go. Justice Stevens' majority opinion is [1]here. The key sections: As we stated in Wickard [Filburn, 317 U. S. 111, 128Â129 (1942)], Âeven if appelleeÂs activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce. Id., at 125. We have never required Congress to legislate with scientific exactitude. When Congress decides that the total incidence  of a practice poses a threat to a national market, it may regulate the entire class. See Perez, 402 U. S., at 154Â155 (quoting Westfall v. United States, 274 U. S. 256, 259 (1927) (Â[W]hen it is necessary in order to prevent an evil to make the law embrace more than the precise thing to be prevented it may do soÂ)). In this vein, we have reiterated that when  Âa general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.  E.g., Lopez, 514 U. S., at 558 (emphasis deleted) (quoting Maryland v. Wirtz, 392 U. S. 183, 196, n. 27 (1968)). Stevens found this case on all fours with Wickard: Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself Âcommercial, in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. The similarities between this case and Wickard are striking. Applying the general principles to this case, Stevens concluded: Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, 21 U. S. C. §801(5), and concerns about diversion into illicit channels, we have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA. Thus, as in Wickard, when it enacted comprehensive legislation to regulate the interstate market in a fungible commodity, Congress was acting well within its authority to Âmake all Laws which shall be necessary and proper to Âregulate Commerce . . . among the several States. U. S. Const., Art. I, §8. That the regulation ensnares some purely intrastate activity is of no moment. The opinion distinguishes Lopez and Morrison: Unlike those at issue in Lopez and Morrison, the activities regulated by the CSA are quintessentially economic. Economics refers to Âthe production, distribution, and consumption of commodities. WebsterÂs Third New International Dictionary 720 (1966). The CSA is a statute that regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product. References 1. http://wid.ap.org/scotus/pdf/03-1454P.ZO.pdf ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Eugene Volokh: Larry Solum Summarizes the Medical Marijuana Case (iRaich/i) http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118075046 [1]here. References 1. http://lsolum.blogspot.com/archives/2005_06_01_lsolum_archive.html#111806792342237189 ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by David Bernstein: Thoughts on Ashcroft v. Raich: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118075289 Despite my blogging hiatus, I cannot resist making a few quick comments about Raich. (1) The five-member majority of the Court simply does not take federalism seriously. Justice Stevens writes that Congressional factual findings are required when there is a special concern such as the protection of free of speech. Apparently, however, the Constitution's limitations on federal power--critical by any measure to the American system of government--are not a special concern, or even especially important. (2) Justice Scalia's concurrence, unlike Justice Thomas's dissent, does not address the original meaning of the Commerce Clause. This reflects a pattern with Scalia, apparent also in his affirmative action, First Amendment, and other opinions: he is much more likely to resort to originalist arguments when they can be used to undermine Warren Court precedents that conflict with his deeply held moral and political views than when such arguments would either undermine his political views or challenge precedents that are not on the social conservative (tempered, as in First Amendment cases, by Scalia's academic elitist solicitude (which I share) for freedom of expression) hit list. (3) I predicted the outcome of this case (and think it's remarkable and a testament to his talents that co-blogger Randy got Rehnquist and O'Connor to vote in favor of his clients) on the theory that wavering Justices such as Kennedy, who voted with the majority, would be affected by political trends apparent in the United States. When Kennedy voted with the majority in Lopez, congressional Republicans were making serious (albeit hamhanded) efforts to limit the federal government, and their rhetoric was even more strongly devolutionary. A decade later, the Republican Congress is vying with the Democratic Congresses of the 1930's and 1960's as the biggest supporter of increased federal power in American history. Scalia's vote was also likely affected by the sense that the Court should not expend political capital, especially with new Republican nominees soon to be voted on, on trying to limit federal power without any support from the political branches. (4) There are essentially two strategies for those who are concerned with civil liberties for limiting the government's ability to abuse the rights of the public. One is the standard ACLU strategy of being a liberal supporter of broad government power, and then insisting that the government respect individual rights, especially constitutional rights, when using that power. The other strategy, followed by libertarians, is to try to limit the government's general power to begin with because the government cannot abuse power it does not have. The drug war provides a least one example of the superiority of the libertarian strategy. The drug war has run roughshod over the civil libertarian accomplishments of the Warren Court, leading to a weakening to various degrees of the First, Second, Fourth, Fifth, Sixth, and Eighth amendments, not to mention a huge increase in the prison population, and the denial of the basic right to use relatively innocuous recreational drugs, even for medicinal or health purposes. Far better to have denied the federal government the power to regulate intrastate use of and sale of drugs to begin with, as, I recall, Justice Van Devanter advocated on Commerce Clause grounds way back in the dark ages of the 1920's. (5) I was both amused and anchored by Justice Stevens's paean to the democratic process as the appropriate avenue of relief for advocates of medical marijuana at the end of his opinion. Every Justice who joined Stevens's opinion voted to prohibit states from regulating homosexual sex in Lawrence and voted to limit the government's power to regulate abortion in Casey. Why was the democratic process not the appropriate avenue of relief for the victims of overzealous government regulation in those cases? It seems we do to some extent live under a system where the personal preferences of the Justices, having nothing to do with the history, text, or logic of the Constitution, dictate when the Supreme Court will or will not intervene to overturn particular regulations. ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Orin Kerr: SCOTUSBlog Becomes RAICHBlog: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118079862 Marty Lederman of [1]SCOTUSblog has come up with the interesting idea of getting a bunch of bloggers together to blog about today's Raich decision. We're all going to be guest-blogging at SCOTUSblog, and most of us (myself included) will also be crossposting our contributions at our home blogs. Guest-bloggers include Ann Althouse, Larry Solum, Mark Tushnet and Eugene Volokh, and David Barron, together with permanent SCOTUSbloggers Marty and Tom Goldstein. More will be added throughout the day. I'm not sure how different it will be from the usual blogging, but I think it's a worthwhile experiment. References 1. http://www.scotusblog.com/movabletype/ ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Orin Kerr: The Rehnquist Court and Symbolic Federalism: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118082016 In response to my earlier post, [1]Tom Goldstein writes: I agree with Orin's comment . . . that Raich on one level seems unremarkable. But I suppose that it has received enormous attention within constitutional law circles because of the continuing uncertainty about whether Lopez and Morrison repesented just outlying data points in the structure of the Constitution or instead a serious theme that would emerge and contradict much of the previous conventional wisdom about federal powers. It looks like today's opinion pretty decisively answers that question in favor of the former. I agree. At the same time, I don't think this opinion should come as a surprise. When was the last time that the pro-federalism side won in a major federalism case at the Supreme Court? As best I can recall, it's been a long time; in the last few years, at least since Bush v. Gore, pro-federalism arguments have repeatedly lost. More broadly, it seems to me that the theme of the Rehnquist Court's federalism jurisprudence is Symbolic Federalism. If there is a federalism issue that doesn't have a lot of practical importance, there's a decent chance five votes exist for the pro-federalism side. Lopez is a good example. Lopez resulted in very little change in substantive law. Yes, the decision struck down a federal statute, but it indicated that Congress could quickly reenact the statute with a very slight change. Congress did exactly that: It re-passed the statute with the added interstate commerce element shortly after the Lopez decision. Lower courts have upheld the amended statute, and the Supreme Court has shown no interest in reviewing their rulings. Because nearly every gun has traveled in or affected interstate commerce, the federal law of possessing guns in school zones is essentially the same today as it was pre-Lopez. As soon as the issue takes on practical importance, however, the votes generally aren't there. If anything, the surprise today was that there were three votes for the pro-federalism side. (Cross-posted at SCOTUSblog; to leave a comment, do so [2]here.) References 1. http://www.scotusblog.com/movabletype/archives/2005/06/raich_as_consti_1.html#comments 2. http://www.scotusblog.com/movabletype/archives/2005/06/the_rehnquist_c.html#comments ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Todd Zywicki: Windmills v. Birds: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118083015 The [1]irony: Environmentalists are suing wind power generators because their windmills kill birds. References 1. http://www.spectator.org/dsp_ds_issue.asp?issue_id=25dsNavSecID=2 ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Eugene Volokh: Prescriptions for Otherwise Illegal Drugs: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118084871 I'm not a federalism maven; though I've followed the Court's jurisprudence here, I can't claim deep expertise. Also, all four opinions in today's case strike me as thoughtful and plausible, so please read my criticisms of specific details of some opinions with an eye towards that. This having been said, let me note a small item: Justice Thomas, dissenting, writes that [U]nder the [Controlled Substances Act], certain drugs that present a high risk of abuse and addiction but that nevertheless have an accepted medical use -- drugs like morphine and amphetamines -- are available by prescription. No one argues that permitting use of these drugs under medical supervision has undermined the [Act's] restrictions. Can that possibly be right? I had thought that prescription narcotics often do make their way into the illegal market, because the doctors or the patients break the law in ways that are made easier by the availability of prescriptions. Sure, Congress is willing to run that risk, but despite the fact that the availability of prescriptions has undermined the broad prohibitory goals of the Act. Naturally, people may disagree about the degree to which the availability of morphine and amphetamines by prescriptions facilitates the broader illegal traffic. But I would imagine that this would be true to some degree, and that there's no reason to think that it's a tiny degree. ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Eugene Volokh: Careful With Those Studies: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118090462 [1]Dr. Jay Gordon (Huffington Post) discusses a recent study: Nearly every one of 253 adults asked said that their doctors should ask them about family stress and conflict, even when that conflict extended to violence. In contrast, only about a third of these people said that their doctors actually did inquire about these crucial aspects of physical and emotional well-being. And indeed the [2]summary he links to reports: In a survey of 253 male and female patients, nearly all (97 percent) believed physicians should ask patients about family stress and conflict, and most (94 percent) thought physicians could be helpful. Despite this, only one third of the respondents remembered ever being asked about family conflict by their physicians. But if you look closely at the [3]study itself, and in particular [4]table 1, you see that 67% of respondents said that family doctors should sometimes ask about family conflict, and only 29% said that doctors should often ask about this. This suggests that there may not be much contrast there: 67% of respondents think that the doctor should only ask about this sometimes -- presumably under certain circumstances, though each respondent may have a different view of what those circumstances might be. Many doctors might well take a similar view, and simply conclude in many cases (whether rightly or wrongly) that this particular patient's circumstances don't justify such an inquiry. If the summary carries an implicit claim that doctors are being too reticent, and aren't doing what patients really want them to do (which is how I read the summary and Dr. Gordon's reference to it), such a claim doesn't really seem to be supported by the facts. The claim may still be right, but this study just doesn't really support it. Nothing earth-shaking, I realize; if people misread this study, we're not going to see [5]a disaster of Biblical proportions. But it is, I think, yet another a reminder to be careful about summaries of studies, which often omit qualifiers (e.g., sometimes) that are quite important. References 1. http://www.huffingtonpost.com/theblog/archive/jay-gordon/narrowcast-medical-note-t_1939.html 2. http://www.medicalnewstoday.com/medicalnews.php?newsid=25402 3. http://www.annfammed.org/cgi/content/full/3/3/248 4. http://www.annfammed.org/cgi/content/full/3/3/248/T1 5. http://www.moviesounds.com/ghostbusters.html ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Orin Kerr: The Rehnquist Court and the Mathematics of Federalism: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118097685 Ernie Young's [1]post at SCOTUSBlog raises a good point: while commentators tend to refer to the Court as a single entity, the Supreme Court consists of nine people with different views. In nonunanimous cases, the Court beomes a shorthand for the group of Justices in the majority. In federalism cases, moreover, there is no clear majority on the current Court. Four Justices -- Stevens, Souter, Ginsburg, and Breyer -- more or less share the same basic view that the Court has little to no role enforcing federalism constraints. The other five Justices would impose some limits on the scope of federal power, but don't really share common ground on exactly what those limits should be. Although classifying each Justice is quite difficult, a very rough first cut might be that Justice O'Connor tends to focus most on preserving a role for the states; Justice Kennedy on recognizing the dignity of the states and preventing federal overreaching; Rehnquist on restoring pre-1960s limitations on federal power; Scalia on finding and enforcing textual principles for limiting federal power; and Thomas on restoring an originalist vision of the Constitution. These approaches can overlap, and Justices might sign on to opinions that aren't exactly their cup of tea. But often they don't. The mathematics of federalism on today's Supreme Court, then, is that the four Justices who do not favor judicial enforcement of federalism constraints only need one additional vote to form a majority. Conversely, for the Court to rule in favor of a federalism limitation, common ground must exist that ties together the differing viewpoints of all five of the right-of-center Justices. The odds are that the former will happen more often than the latter, which is why victories for federalism principles have tended to be rare and on relatively narrow (that is, [2]symbolic) issues. (Cross-posted at SCOTUSblog; leave comments [3]here.) References 1. http://www.scotusblog.com/movabletype/archives/2005/06/the_normalizati_1.html 2. http://www.scotusblog.com/movabletype/archives/2005/06/the_rehnquist_c.html 3. http://www.scotusblog.com/movabletype/archives/2005/06/the_rehnquist_c_1.html#comments ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Orin Kerr: All-Raich Super-Blog and the Future of Law Reviews: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118122715 SCOTUSBlog's one-day experiment turning into an all-Raich super-blog [1]has ended. I thought it was really cool, in a turbo-law-geek sort of way. Indeed, I wonder if law reviews will get in the act and start hosting their own versions of this. It seems to me a fantastic opportunity for them to capitalize on the blog movement. If you're an editor, all you need to do is ask a bunch of blogger/lawprof types if they will blog on your journal's website the day a big case comes down. On the day of the big decision, you contact all of your authors and hand over the keys, er, passwords, and let them blog away. By the end of the day, your journal will be the host of a mini-symposium about the brand new case. Of course, you won't actually publish the contributions, but you can keep your mini-symposium online and available for future scholars to peruse. By the time the law reviews start publishing case comments and Supreme Court Term overviews, the blogged scholarship posted on your website will have framed the commentary long ago. References 1. http://www.scotusblog.com/movabletype/archives/2005/06/nonraich_posts.html ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
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Posted by Todd Zywicki: Challenges Facing Liberalism: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1117999563 [1]Eugene notes [2]Geoff Stone's column on the challenges facing liberalism. Stone correctly notes that conservatives in the 1970s (actually beginning with the New Deal) were equally adrift, but that a movement was born from the ashes. How this came about is a fascinating story that I won't retell here (one source I have previously recommended is [3]Nash's Conservative Intellectual Movement in America Since 1945). In a nutshell, though, I think the key story here is the rise of conservatism as a movement that was larger than its doctrinal differences--i.e., an umbrella that enabled libertarians, traditionalists (and later religious conservatives), and anti-communists (today, supporters of the War on Terror) to work together in common cause both intellectually and politically. The unifying theme, however, was a discussion of fundamental questions of the relationship between the individual and the state, and a willingness to do so in an empirically-informed and reality-based context. Think about the problems that eventually overwhelmed liberalism--Communism, the crime explosion of the 1960s and 1970s, the decline of the American economy in the 1970s, etc. Conservatism offered a vision of man and his relation to the state and community that reached back to traditional American values, and provided a unity that was able to pull together the disparate strands of the conservative coalition. Looking at liberalism today, I honestly don't see how liberalism can replenish itself. Assuming that liberalism can articulate an overarching vision, I am at a loss to see what this vision possibly could look like, especially in light of the failure of liberalism in the 1970s. Most fundamentally, I don't see how liberalism it can simultaneously stand for its traditional focus on individualism as well as the rise of modern identity politics, which is focused on group rights. Stone says, for instance, In truth, it is much easier to see the injustice in racial segregation than it is to justify affirmative action. Of course it is--the two positions are inherently contradictory. Either one's rights flow from their status as individuals, or as members of particular racial or other groups--it can't be both. This isn't a question that can be compromised or finessed. And even this dichotomy leaves aside other movements within liberalism such things as radical environmentalism, with its deep pessimism, elitism, casual attitude toward coercion, and dismissal of economic prosperity. So, unless I'm missing something, it seems to me that the project of restoring liberalism is going to be much more difficult than it was for conservatism. Conservatism circa 1945 was an intellectually bereft movement, empty of ideas. But liberalism today seems to have it worse--it seems to have too many mutually-incompatible ideas, many of which are deeply contrary to the American tradition of individualism, optimism, and economic growth. Incidentally, I think Stone probably overstates the role of the Federalist Society, which came along pretty late in the game. Legal issues are (or should be) fundamentally issues of implementation of a vision, rather than formative of a vision. In fact, this conflation may be part of the problem with liberalism's malaise, I suspect. Legal issues are (or perhaps more accurately, should be) inherently parasitic on a larger political and ideological vision, primarily a vision of the relationship between the individual and the state. The key players here are actually Friedman, Hayek, Rand, Kirk, etc.--Bork and Scalia come along later, and the conservative legal philosophy arises out of the intellectual construct of conservatism. Of course, this relates profoundly to the discussion that David Brooks triggered a few months back that liberalism today is bookless, in the sense that it has no coherent animating ideas that knit together the liberal vision of the world. Even the questions that Stone poses are basically programmatic, not philosophical. I think that one reflection of the robustness of a conservative intellectual philosophy is that it is not uncommon at all for a libertarian to be personally pro-choice, but to oppose Roe v. Wade as a legal doctrine, or to be opposed to school prayer or the Pledge of Allegiance yet recognize it as a legitimate sphere for majorities to hold sway. The position of conservative jurisprudence flows pretty easily from distrust of elitist power and the empirical record of the mischief spawned by prior generations of judges. Perhaps there are similar examples on the liberal side of the line, but my sense is that the conflation between
[Volokh] New post at The Volokh Conspiracy
Posted by Todd Zywicki: Whatever Happened to Larry David? http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118000228 Honestly, the only reason I ever gave a damn about the Huffington Post (except now that Eugene is there occasionally) was because I thought that Larry David would be hilarious as a blogger. And I thought his [1]first post on Bolton was quite funny. But as far as I can tell, that was his only posting, weeks ago. So here's a request for more Larry David. References 1. http://www.huffingtonpost.com/theblog/archive/larry-david/why-i-support-john-bolton_443.html ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
[Volokh] New post at The Volokh Conspiracy
Posted by David Kopel: Media Miscoverage of the Guantanamo Gulag, Gay Rights, and Iranian Nukes: http://volokh.com/archives/archive_2005_05_29-2005_06_04.shtml#1117909352 Those are topics of my latest [1]media analysis column for the Rocky Mountain News. Once you're at the News website, check out the [2]first article in a major five-part series on Ward Churchill, presenting extensive new evidence of academic fraud by Churchill. References 1. http://www.insidedenver.com/drmn/news_columnists/article/0,1299,DRMN_86_3829041,00.html 2. http://denver.rockymountainnews.com/news/churchill/indexDay1.shtml ___ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
