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Friday, July 13, 2007
More Ways to Identify Judicial Clerkships from Hell:
University of San Diego lawprof Michael Rappaport follows up his earlier post on his judicial clerkship from hell with an addendum to my suggestions on ways clerkship applicants can identify judges who abuse their clerks:
Ilya raises the question of how information about judicial tyrants can be publicized. One possibility is simply to list whenever a law clerk quits his or her job. While one or two quits might be innocent, a pattern would be revealing, especially when supplemented with gossip. One Volokh commentator mentions that many clerks resigned from their clerkship with Judge Irving Kaufman of the Second Circuit. At law school, I knew that about Kaufman – everyone did – but I had no knowledge about [Judge] Sloviter [the oppressive judge Rappaport clerked for]. (Interestingly, my two co-clerks did know that she had a reputation for being a very tough boss, but they took the clerkship anyway, because their wonderful interview with her (mistakenly) convinced them that the reputation was undeserved.) As I remember it, when I started the clerkship in 1985, three Sloviter clerks had quit in the six years she had been a judge. My co-clerk made it 4 in 7 years.
Michael's suggestion is a good one. On rare occasions clerks resign for reasons of their own that are no fault of the judge's; sometimes, a judge will have no choice but to force a clerk to resign because the latter is simply too lazy or incompetent to do the job. Even so, a pattern of repeated resignations does indeed suggest that there's something wrong with the judge in question.
Michael's idea is only a partial solution to the information problem. Even if their judge is an oppressive tyrant, clerks will hesitate to resign early because of the very high costs of doing so. Because prospective future legal employers will almost always contact the judge an ex-clerk served under, alienating the judge by leaving the clerkship early is likely to be a major career setback. Still, Michael's proposal would certainly provide valuable information about those (probably very few) judges who are so bad that large numbers of their clerks are willing to pay the high cost of resigning in order to be rid of them.
David Lat at Above the Law has his own proposal for increasing the availability of information about hellish clerkships:
Never fear, Above the Law is here! We're happy to serve as a clearinghouse for your clerkship horror stories.
Email us with your tales of clerkship woe. We will confirm that you actually clerked for the judge in question (or were otherwise properly situated to acquire such dirt). We will then post your horror story, but without identifying you as our tipster, per our standard procedure. (Of course, if you for some bizarre reason WANT to be credited, we can do that too.)
Judges are public figures, and they're used to being criticized. But sometimes even judges sue for libel. So — and this should go without saying — only send us stories that are TRUE.
I should mention that David is himself a useful font of information about judges and their clerkship policies, since he has a virtually encyclopedic knowledge of the various denizens of the federal judiciary. If you want the real dope on what it's like to work for a particular judge, he's often one of the best people to ask.
Finally, I want to emphasize that I am NOT suggesting that applicants should automatically forego clerkships with judges who treat their staff badly. Sometimes, the educational and career benefits of clerking for a nasty judge will outweigh the pain and suffering involved. Some mean judges are also outstanding and highly respected jurists whom clerks can learn a lot from. Others are major figures in the legal profession who can do a lot for a clerk's career prospects. Applicants will have to decide for themselves whether the benefits of clerking for a particular judge are worth the costs. I simply hope that such decisions will be taken with the benefit of as much accurate information as reasonably possible. Related Posts (on one page): - More Ways to Identify Judicial Clerkships from Hell:
- Judicial Clerkships From Hell:
Thursday, July 12, 2007
D..C. Circuit to Take Terry Stop Decision En Banc:
I blogged about the panel decision here; Howard has the news about the court's decision to go en banc here. It seems like a strange case to take en banc given how fact-specific it is, but I guess it adds some variety to the docket.
Is Splitting the Ninth the Answer? (What Was the Question?):
Is there anything wrong with the Ninth Circuit? Anything that splitting the Court would solve? For more on these questions see this post at SCOTUSBlog by Ben Winograd and this post by Ethan Leib on Prawfsblawg. Related Posts (on one page): - Is Splitting the Ninth the Answer? (What Was the Question?):
- Would a Smaller Ninth Circuit Get Reversed Less Often?
Are "Ladies' Nights" Discriminatory?
A New York attorney has filed a class action lawsuit against several Manhattan nightclubs, alleging that by hosting "ladies nights" they are engaged in unlawful gender discrimination. He is seeking a declaratory judgment that the nightclub policies in question constituted "state action" due to their regulation by the state Alcoholic Beverage Division. Such a finding would be necessary for the nightclubs to be liable under Section 1983.
He is looking to the case of Seidenberg and DeCrow v. McSorleys' Old Ale House, Inc., 317 F.Supp 593, as precedent for finding the existence of "state action" by bars and nightclubs. The U.S. District Court for the Southern District of New York, where Hollander has filed his complaint, ruled in 1970 that state action existed when McSorleys' Old Ale House refused to serve two women.
Hollander also foresees an "uphill battle" in classifying the action as invidious discrimination, since he is arguing on behalf of men and not women, whom he says the U.S. Supreme Court has given "preferential treatment for past invidious, economic discrimination."
"Whether this case succeeds or fails," says Hollander, "it will result in a much needed victory for men." . . .
Hollander is seeking to be named class representative for all men charged more money or burdened by stricter time restraints than women at these clubs over the last three years. He has as evidence e-mail advertisements for promotions held on the nights he attended these clubs and according to Hollander, these e-mails advertise discriminatory admittance policies for men versus women. The case seeks an injunction to end these policies.
The general manager for one of the nightclubs being sued labeled the suit "ridiculous."
God Forbid That People Should Look at Demographic Data
(except, of course, when God forbid that people should ignore demographic data): The Feminist Law Professors blog writes:
[TITLE:] Oh for the love of...
Exactly what possessed Eugene Volokh to look into the sexual orientation of female law profs whose scholarship gets cited a lot? See his "update" at end of this post and try to avoid banging your head on the computer monitor.
Hmm — what would possess an academic to look into disproportionate representation by sexual orientation when one is looking at data showing disproportionate representation by sex and ethnicity? Could it be academic curiosity? A desire to find — and then to call attention to — interesting data points that might help shed light on the degree to which personal attributes correlate with professional success, and potentially influence professional success?
Look, let's say the data I give did generalize beyond its very small sample. I stressed that it was quite limited, since it revealed only that 2 of the 6 women law professors on the list of the 50 most cited professors who entered law teaching since 1992; at this point, it is at most very tentatively suggestive. But let's say it did lead some readers to look more closely, and find that indeed lesbians and bisexual women are substantially overrepresented among successful women in certain fields.
Wouldn't that be a matter of some scholarly interest? It doesn't matter what one thinks the cause for this disproportion might be: different patterns of discrimination by outsiders, different internal cultural norms within the group, different social and familial structures, biological differences, or whatever else. It doesn't even matter if one is unsure of the cause at the outset, but is just trying to find data that may eventually help identify the cause. Wouldn't the data be pretty interesting to people who are seriously interested in sociology, biology, demography, the legal profession, and a wide range of other fields?
To me, the glory of the academic life is that you're supposed to look for interesting data, bring it up to colleagues, investigate it, speculate about it, and the like. All people should be entitled to do this, but for us this sort of inquisitiveness is part of our jobs. It's too bad that identifying such data leads some to want to bang their heads against their monitors.
More broadly, if you're curious about human behavior — as a scholar or just as a fellow human — isn't there something striking and intriguing about the marked correlations between sexual orientation and participation in various professions? Male homosexuals are notoriously overrepresented in some fields, and while some such claims might at times be spurious, my sense is that on balance conventional wisdom reflects reality. Lesbians are also often said to be overrepresented in other fields (chiefly athletic, in my experience, though not only that); again, some of this may be myth, but I see no reason to assume that it's all myth.
Why is this? Is it culture? The effects of discrimination? Biology? Some mix of these factors? Does it relate only to different rates of interest in the fields, or also to different rates of success? Fascinating questions, it seems to me, and ones that get more fascinating as one acquires more data. So that's what possessed me, and I don't see what's wrong with such possession.
Anna Nicole Smith Law:
The Washington Legal Foundation> just put up a Web Seminar this morning on "The Ongoing Saga of Marshall v. Marshall: Beyond the Anna Nicole Headlines, Critical Legal Issues Lurk in Federal Court"; it should now be available at the WLF Web site. Some interesting procedural issues there, plus stuff on bankruptcy and probate — the things one instantly thinks about, of course, when one hears "Anna Nicole Smith."
Law Enforcement Possession and Distribution of Contraband:
In response to Eugene's post below, about law enforcement possession and distribution of contraband, this post from my now-abandoned solo blog might be helpful. (Unfortunately the comments there are down, but you can get the gist of them — and particularly Marty Lederman's answer — from the update.) Here's the key language from Nardone v. United States: according to Nardone, there is an "implied exclusion" for "public officers," "where a reading which would include such officers would work obvious absurdity as, for example, the application of a speed law to a policeman pursuing a criminal or the driver of a fire engine responding to an alarm." It's not really clear to me how this would apply to the McDade case, and I don't know if there are any later cases on how this applies (I haven't found any, but I didn't look very hard.) UDPATE: Corey Rayburn Yung has additional thoughts at the Sex Crimes blog.
Releasing Copies of Evidence = Violation of Federal Child Porn Laws?
The Atlanta Journal-Constitution reports (thanks to How Appealing for the pointer):
Douglas County District Attorney David McDade violated federal law when he distributed a videotape from a rape and child molestation case to legislators and journalists, the U.S. attorney's office said Wednesday.
U.S. Attorney David Nahmias said federal law prohibited distributing the videotape because it depicted minors engaged in sexually explicit conduct and warned that people who had received it would be in violation of federal child pornography laws.
The videotape was of the raunchy party in a Douglasville hotel room that led to the conviction of Genarlow Wilson on aggravated child molestation charges. Wilson was 17 at the time and the tape showed him receiving consensual oral sex from a 15-year-old girl. The video has been given to both reporters and legislators....
McDade told The Associated Press he was required to release the tape under the state's Open Records Act because it was introduced as evidence at the trial.
The distribution of such material would indeed normally be child pornography; and the federal child pornography ban would preempt any state law to the contrary. The questions, I take it, would be:
(1) Is there some implicit exception to the federal law as to videos such as this one, and what is its scope? I take it that there must be some such exception, or else the video couldn't even be handed from the police to the prosecutor in federal enclaves, such as D.C., but the question is whether the exception extends to distribution to the media and to legislators.
(2) Should the First Amendment be read as mandating an exception for videos and photographs that are evidence in a criminal trial, and seeing which may be helpful to understanding whether justice was done in the criminal process (which is to say whether the sentence was substantively sound, not just whether the procedures were followed) -- and, again, what should the scope of the exception be?
(3) Is there some state sovereign power limit on federal law, where the distribution or possession of the material is part of the state government's law enforcement process (this would apply to, for instance, e-mailing or mailing material within the prosecutor's or police department's office) or as part of the state government's compliance with its own public records laws?
I don't know what the answers to these questions are, but the issue struck me as worth flagging.
By the way, "Nahmias said his office issued the statement to end further distribution of the videotape and advised those who possessed it to destroy or return it." That is certainly very good advice for anyone who has the tape in his hands, and who is rationally risk-averse. Related Posts (on one page): - Law Enforcement Possession and Distribution of Contraband:
- Releasing Copies of Evidence = Violation of Federal Child Porn Laws?
Huckabee vs. Moore:
"Frankly, Michael Moore is an example of why the health care system costs so much in this country. He clearly is one of the reasons that we have a very expensive system. I know that from my own personal experience," said Huckabee, who lost more than 110 pounds and became an avid runner after he was diagnosed with diabetes.
"I know how much more my health care cost when I didn't take care of myself than when I do take care of myself, not only in terms of doctor visits but regular diseases, illnesses, chronic things that come up, monthly prescription bills," Huckabee said. "All of those things have gone dramatically down since I've taken care of myself and worked to live a healthier lifestyle."
No comment could be obtained from Moore, but Meghan O'Hara, producer of "Sicko," questioned Huckabee's motives in criticizing Moore.
"Looks like Mike Huckabee is auditioning for some insurance company dough, since he's raised just about no money and sparked zero interest since jumping into the race," O'Hara said in a response provided by Moore's production office. "I wonder what the good governor would say to the French, who drink more, smoke more, eat more cheese and still live longer than us despite paying less for health care?"
Advantage: Huckabee. Feel free to correct this non-expert in the comments, but from what I read the real experts find very little correlation between the various health care systems used in the Western world and longevity, and attribute the (relatively small) differences in longevity to lifestyle factors, with obesity being the primary disproportionate "health sin" in the U.S.
Anecdotally, I know Israelis have great longevity, despite, from what I can tell, is a relatively poor (and very unequal, because the wealthy use private insurance) health care system, and despite a high percentage of ultra-Orthodox and Arabs with very large families living in general poverty and ignorance.
If Moore's "people" have any evidence that the French's longevity is due to their health care system and is despite an overall worse lifestyle profile than Americans', I'd love to see it. (Indeed, drinking more is likely correlated with better health if more people drink, but there are fewer alcoholics. And cheese, per se, isn't harmful, and has some dairy-related health benefits.)
Moreover, O'Hara's retort is not directly on point, since Huckabee raised the issue of health care costs, not longevity. Smokers, some have argued, actually save the system money by dying young of a signature disease. The morbidly obese tend to have lots of chronic health problems, like diabetes.
The American health care system can use all sorts of improvements, but I doubt anything on the table, much less Moore's favored single-payer system, will improve Americans' health more than it would be improved if we cut the rate of gross obesity by 2/3. My esteem for Mr. Moore would rise significantly (from an admittedly low base), if his next film encouraged Americans to take more responsibility for their health, and he led by example. And I say all this as someone who could stand to lose a few.
Goldstein on the Democratic Short List:
Over at SCOTUSblog, Tommy Goldstein speculates about who might be nominated for the next Supreme Court spot if a Democrat wins the White House in 2008. It's all speculation, of course, but it's interesting speculation. UPDATE: I noticed that Judge Diane P. Wood of the 7th Circuit is in Tommy's full chart of possibilities, but not on his list of likely picks. Although Judge Wood is slightly older than some of the others (born in 1950, so she would be 59 in 2009), I wouldn't be surprised if she ends up at the top of Democratic short lists. From what I know she is an excellent judge, and her sterling credentials and experience on the Seventh Circuit would probably help a great deal in the confirmation process. ANOTHER UPDATE: Commenter "Actuarial Advantage" raises an excellent point: Given that women live on average 5 years longer than men, a President probably has more flexibility on the age of a female SCOTUS nominee than a male SCOTUS nominee.
Unconstitutional Restriction on Use of Fallen Soldiers' Names?
Reason's Hit & Run reports on a new Arizona statute (Ariz. Rev. Stat. § 13-3726) that would limit the use of names and pictures of dead soldiers. The law, which was apparently prompted by outrage over the sale of antiwar T-shirts that contain the names of soldiers killed in Iraq, reads: A. A person shall not knowingly use the name, portrait or picture of a deceased soldier [defined as referring to any member of the U.S. armed forces] for the purpose of advertising for the sale of any goods, wares or merchandise or for the solicitation of patronage for any business without having obtained prior consent to the use by the soldier or by the soldier's spouse, immediate family member, trustee if the soldier is a minor or legally designated representative....
C. This section does not apply to the following:
1. The use of a soldier's name, portrait or picture in an attempt to portray, describe or impersonate that soldier in a live performance, a single and original work of fine art, a play, book, article, musical work or film or on radio, television or other audio or audiovisual work if the performance, musical work, play, book, article or film does not itself constitute a commercial advertisement for any goods, wares or merchandise.
2. The use of a soldier's name, portrait or picture for noncommercial purposes, including any news, public affairs or sports broadcast or account.
3. The use of a soldier's name in truthfully identifying the soldier as the author of a particular work or program or as the performer in a particular performance.
4. Any promotional materials, advertisements or commercial announcements for a use described in paragraph 1, 2 or 3.
5. The use of photographs, video recordings and images by a person, firm or corporation practicing the profession of photography to exhibit, in or about the professional photographer's place of business or portfolio, specimens of the professional photographer's work, unless the exhibition is continued by the professional photographer after written notice objecting to the exhibition by the portrayed soldier or a person who may enforce the soldier's rights and remedies.
6. A soldier's picture or portrait that is not facially identifiable.
7. A photograph of a monument or a memorial that is placed on any goods, wares or merchandise.... The prohibited conduct is made a misdemeanor, and made civilly actionable.
The law, it seems to me, is unconstitutional, for two reasons:
1. a. The T-shirts don't fit within the "commercial speech" doctrine, under which commercial advertising gets reduced First Amendment protection — the T-shirts aren't advertising (except insofar as the cover of any work, such as a book or a magazine, advertises itself), but rather speech sold for money. And the fact that speech is sold for money doesn't strip it of protection (whether it's a book, a movie, or a T-shirt).
b. The T-shirts also don't fit within any "right of publicity" exception that is likely to be recognized by the courts. The Supreme Court has held that state law may make actionable the taking of another's entire act (for instance, when a TV station rebroadcasts a "human cannonball" act); but that narrow exception doesn't apply here.
Some lower courts, most notably the California Supreme Court, have held that "nontransformative" use of another's name or likeness, such as a T-shirt or a coffee mug that merely contains a celebrity's picture, may also be restrictable. But the speech here is clearly transformative, in that it "add[s] something new, with a further purpose or different character, altering the first with new expression, meaning or message," "add[s] significant expression beyond" the "literal depiction or imitation of a [person] for commercial gain," and uses the person's name as "one of the 'raw materials' from which an original work is synthesized," as opposed to having "the depiction or imitation of the celebrity [be] the very sum and substance of the work in question." I have argued that the "transformative" test isn't clear or speech-protective enough; but even under this test, the T-shirts would be protected, and the statute would be unconstitutionally overbroad.
Even under the awful Missouri Supreme Court "Tony Twist" decision (which I have criticized here), it seems likely that the T-shirts would be protected. A court would have to engage in the mushy inquiry of whether the T-shirt "predominantly exploits the commercial value of an individual's identity" as opposed to having as its "predominant purpose" be "[the making of] an expressive comment on or about a [person]," but my guess is that for an overtly political T-shirt like this, in which the people's names are part of the political message, the inquiry would come out in the speaker's favor — and the Tony Twist case is an outlier among lower courts, which are generally more protective of speakers' rights in this context.
2. Moreover, even if a categorical restriction on the use of others' names and likenesses on T-shirts would be constitutional, a selective ban on the use of deceased soldiers' names seems to violate R.A.V. v. City of St. Paul, which held that even if a broad category of speech (there, fighting words) can be restricted, the First Amendment bars the selective restriction of content-based subcategories of the speech (there, fighting words that "arouses anger, alarm or resentment ... on the basis of race, color, creed, religion or gender").
The R.A.V. test is complicated and in many ways vague, but it does seem pretty clearly applicable here: - It's not the case that "the basis for the content discrimination [deceased soldiers' names vs. others' names] consists entirely of the very reason the entire class of speech at issue [speech that uses others' names without permission] is proscribable."
- It's not the case that "the subclass happens to be associated with particular 'secondary effects' of the speech, so that the regulation is 'justified without reference to the content of the ... speech.'" (Recall that the offensiveness or persuasiveness of the speech, and the effects that flow from them, are not counted as secondary effects. "The emotive impact of speech on its audience is not a 'secondary effect.'")
- This is not a generally applicable law that applies both to speech and conduct and that covers a particular subcategory "incidentally."
- It is not the case that "the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot."
So, the bottom line: The Arizona statute is unconstitutional. So is a similar law in Louisiana, which is possibly narrower, but still unconstitutional for reason #2 and a version of reason #1. And so is a similar law in Oklahoma (21 Okla. Stat. Ann. § 839.1A), though reason #2 wouldn't apply because a nearly identical Oklahoma law equally covers the use of people's names and likenesses more broadly, without limitation to fallen soldiers.
Thanks to Nick Sarwark for the pointer.
The Tiahrt Amendment:
A reader asked for analysis of the Tiahrt Amendment, which will be voted on today in the House Appropriations Committee. The amendment, which has been a BATFE appropriations rider since 2004, protects the privacy of law-abiding gun owners by restricting disclosure to third parties of various federal records of lawful gun purchases, by enforcing a prior federal law requiring the prompt destruction of National Instant Check System records on lawful purchases, and by forbidding the creation of a computerized federal gun-owner registry. The amendment also partially limits the disclosure of information from federal gun traces--which Chicago Mayor Daley and other politicians have sought, in order to support their lawsuits against gun manufacturers. More detailed information is available from a 2004 article I wrote for National Review Online.
The gun control lobby, with New York City Mayor Bloomberg as the point man, are seeking to eliminate the Tiahrt Amendment entirely, but their public campaign has said almost nothing about the most of the provisions of the amendment. (Even though those provisions are contrary to the lobbies' support for comprehensive gun-owner registration.) Instead, they claim that the trace provisions interfere with local law enforcement. Notably, Kansas Rep. Tiahrt offered to negotiate technical modifications of the trace language, to the extent necessary to address legitimate law enforcement (as opposed to lawsuit) needs, but Mayor Bloomberg broke off the negotiations.
This is the Data Quality Act on Drugs:
Americans for Safe Access, an organization that promotes the legalization of medical marijuana, is launching a legal challenge against the federal government's claim that marijuana has "no currently accepted medical use." According to this story, ASA is using the Data Quality Act to challenge the scientific basis of such statements, in an effort to force the federal government to acknowledge the value of medical marijuana.
This could be an interesting test case for the judicial enforceability of the DQA. The law creates procedures to ensure the accuracy and reliability of scientific and technical information upon which federal government decisions are based. Enacted in 2000, it has been viewed primarily as a tool for industry to use to challenge the scientific basis of government regulations. If ASA is successful in their suit (and they have to overcome a challenge to their standing to sue), the DQA may be viewed in a different light.
More information about the lawsuit it available here. For the Science editorial on the suit, see here.
Great Moments in Washington, DC Police Work:
Amber Taylor describes an egregious example of incompetence by the Washington, DC police:
Yesterday, two men tried to break into my friend's home while she was inside. One man attempted to pry the door open and the other tried to get in the window. She called the police and, because the men were still milling around in a nearby alley, she was able to identify the perpetrators. One of them had just been released that morning . . .
The police told her that "D.C. doesn't have an attempted burglary statute" and so they could not arrest the men. They let them go, although now they know who my friend is, where she lives, and that she fingered them to the cops.
As Amber notes in her post, DC does in fact have an attempted burglary law (see also here), and the police could have arrested the suspects on other charges as well.
Sadly, this is not an isolated incident. Despite its many virtues, Washington, DC has a longstanding reputation for having perhaps the worst city government in the country (see also here). That's one of the reasons why, when I moved to this area back in 2003, I chose to live in northern Virginia rather than in the District. Fortunately, I have had little occasion to use the services of the Fairfax County Police. But the one time I did need their help (a noise complaint that was a far less serious and urgent problem than that experienced by Amber's friend), they dealt with the issue swiftly and effectively. Perhaps if more people vote with their feet against DC, the District's political leaders will have some incentive to clean up their act.
Wednesday, July 11, 2007
Yesterday's Divided Sixth Circuit Decisions:
Yesterday, in Hartman v. Bagley, a divided panel of the U.S. Court of Appeals for the Sixth Circuit denied capital defendant Brett Hartman's appeal of the denial of his habeas corpus petition. Hartman was convicted for the brutal murder Winda Snipes -- he tied her up, stabbed her over 130 times, and then cut off her hands, ostensibly to help cover his tracks. The jury found him guilty of aggravated murder, in addition to kidnapping and tampering with evidence, and he was sentenced to death.
The three judge panel rejected Hartman's appeal. That's not too unusual, nor is the fact that the panel was divided. What is more interesting was the line up. Judge Gilman wrote the majority opinion joined by Judge Daughtrey. Judge Clay dissented in part, on the grounds that the trial court gave "unconstitutional acquittal-first jury instructions" and Hartman received ineffective assistance of counsel at the sentencing phase. All three judges were Clinton nominees, and if Hartman's case was strong enough to convince Judge Clay, I would have thought it would at least have convinced Judge Daughtrey as well.
Yesterday the Court also issued a divided opinion in Brown v. Cassen Transport Co., involving claims that a company violated RICO by conspiring to deny worker's compensation benefits. Judge Gibbons wrote the opinion of the Court upholding dismissal of the case. Judge Moore concurred in part and dissented in part, and Judge Ackerman (sitting by designation) wrote a separate concurrence. Judge Ackerman, for his part, noted he was a "visiting fireman" who had to follow sixth Circuit precedent, even if he believes it is incorrect and should be reviewed en banc.
Are you an Attorney Who Wants to "Retire and Teach at a Law School"?:
Then read this article. The two most salient points are that becoming a tenure-track law professor is far from "retiring," and the job is primarily "a writing job, not a teaching job." If, for example, you have no law review publications, almost no one is going to take you seriously as a faculty candidate, and certainly not as a candidate to arrive with tenure. If you want to teach as an adjunct for fun, that's another story entirely.
I've on occasion had prominent government attorneys approaching retirement waste my time trying to persuade me that they would be the perfect candidate for a senior (tenured) appointment at GMU, even though they had none of the most significant attributes (most important scholarly record/evidence of scholarly promise) that we look for in any faculty candidate, much less a candidate seeking immediate tenure, and had no intention of remedying that before they went on the market.
Would a Smaller Ninth Circuit Get Reversed Less Often?
Vanderbilt law professor Brian Fitzpatrick looks at the U.S. Court of Appeals for the Ninth Circuit (where he clerked), and how it fared before the Supreme Court this past year.
The 9th Circuit, which hears appeals in federal cases in the Western United States, is the largest of the 13 such courts, with 28 active judges and more than 20 part-time senior judges. The 9th Circuit is almost three times the size of an average court of appeals, and its jurisdiction stretches from Alaska to Arizona, an area comprising nearly one-fifth of the American population.
The 9th Circuit also has a long-running streak as the most overturned, which went unbroken this year. The Supreme Court reviewed 22 cases from the 9th Circuit last term, and it reversed or vacated 19 times. By comparison, the Supreme Court reviewed only five cases, vacating or reversing four, from the next-busiest court of appeals, the 5th Circuit based in New Orleans.
In other words, although the 9th Circuit decided only one-third more appeals on the merits than the 5th Circuit, it was reversed nearly five times more often.
Noting the Ninth Circuit's high rate of reversal is nothing new. What Fitzpatrick adds, however, is an explanation of how the Ninth Circuit's large size may contribute to the high reversal rate. Specifically, he argues that as the number of judges on the Ninth Circuit increases, the likelihood that it will issue outlier opinions increases.
Consider a hypothetical court of 28 judges (the number of active judges currently on the 9th Circuit), in which six of the judges are extreme. The probability of such a court randomly selecting a panel with at least two extreme judges is almost 11%. But if it were divided into two courts — each with 14 judges, three of whom are extreme — that probability falls to 9%.
A difference of 1% or 2% may not seem like much, but the 9th Circuit decides more than 6,000 cases every year. This means that if the 9th Circuit is anything like my hypothetical court, splitting it in half would save 60 to 120 appeals a year from being decided by panels with a majority of extreme judges.
On this basis, Fitzpatrick concludes that as long as the Ninth Circuit remains disproportionately large, it will continue to issue "extreme" opinions at a disproportionate rate, and "it is likely to continue being disproportionately reversed by the Supreme Court." Related Posts (on one page): - Is Splitting the Ninth the Answer? (What Was the Question?):
- Would a Smaller Ninth Circuit Get Reversed Less Often?
The Politics of Volokh Conspiracy Readers:
We've now had more than 2,400 responses to the reader poll on your political views, and I find the results really interesting. The single biggest category was self-identified libertarians, 29% of the responses. That's not surprising: we're a libertarian-leaning group, even if we sometimes occupy the Ninth Circle of Libertarian Hell. I was surprised by some of the results, though. In particular, there was an almost perfect symmetry between right-of-center and left-of-center responses. Taking out the 29% who identified as libertarian and the 8% who felt they didn't really fit a category, the remaining group broke down as follows: I'm very conservative 11%
I'm moderately conservative 18%
I'm in the center 7%
I'm moderately liberal 18%
I'm very liberal 8% According to these figures, 29% of responses identified readers as right-of-center, and 26% identified readers as left-of-center. Further, 43% identified themselves as being moderates in one way or another (moderate conservatives, centrists, or moderate liberals). In contrast, only 19% of responses identified readers as strongly on the left or right. It's not scientific, of course, but I still think it's very interesting. Incidentally, I found the free Pollhost software very easy to use; I'll probably be doing more polls on occasion in the future to gauge reader response to current events and stuff like that. Anyway, thanks to everyone who participated. UPDATE: I have amended the post to clarify that the blockquoted list is just a subset of the results. Sorry if that caused confusion.
Did White House Censor Surgeons General?
Yesterday the House Committee on Oversight and Government Reform held a hearing on "The Surgeon General's Vital Mission: Challenges for the Future." According to Committee Chair Henry Waxman (D-CA):
Political interference is compromising the independence of the Office of the Surgeon General. On key public health issues, the Surgeon General has been muzzled. The Surgeon General’s greatest resource — his or her ability to speak honestly and credibly to the nation about public health — is in grave jeopardy. . . .
as we will hear this morning, political interference with the work of the Surgeon General appears to have reached a new level in this Administration. We will hear how reports were blocked, speeches were censored, and travel restricted.
Among those who appeared at the hearing was former Bush Administration Surgeon General Richard Carmona, who testified:
the nation’s doctor has been marginalized and relegated to a position with no independent budget, and with supervisors who are political appointees with partisan agendas. Anything that doesn’t fit into the political appointees’ ideological, theological, or political agenda is ignored, marginalized, or simply buried. . . .
Historically, the Surgeons General have occupied increasingly embattled positions where
each has had to fight to scientifically address the contemporary health issues of the nation and the world within an increasingly partisan, ideologically, and / or theologically driven political agenda that is often devoid of open discussions of scientific evidence or data.
Carmona's written statement does not provide details of alleged political interference during his term as Surgeon General. This Washington Post story, however, does: In one such case, Carmona . . . said he was told not to speak out during the national debate over whether the federal government should fund embryonic stem cell research, which President Bush opposes.
"Much of the discussion was being driven by theology, ideology, [and] preconceived beliefs that were scientifically incorrect," said Carmona, one of three former surgeons general who testified at yesterday's hearing. "I thought, 'This is a perfect example of the surgeon general being able to step forward, educate the American public.' . . . I was blocked at every turn. I was told the decision had already been made — 'Stand down. Don't talk about it.' That information was removed from my speeches." The problem with this example is that the debate over whether the federal government should fund embryonic stem cell research is not a scientific debate, but a moral one. Opposition to such research is almost always based upon a belief that the use of embryos for such research is immoral — not that it is ineffective or that it cannot lead to medical advances. Some opponents of stem cell research spin scientific evidence to support their cause, exaggerating the potential of adult stem cells, but proponents of embyonic stem cell research engage in spin and hyperbole of their own. In the end, the decision whether or not to support funding of embryonic stem cell research is a normative policy decision, and it is not "political interference" with science for an administration to expect political appointees to support the administration's policy on this issue — whatever that policy is.
The Post also provides a second example: Carmona said that when the administration touted funding for abstinence-only education, he was prevented from discussing research on the effectiveness of teaching about condoms as well as abstinence. "There was already a policy in place that did not want to hear the science but wanted to just preach abstinence, which I felt was scientifically incorrect," Carmona said. This example is harder to evaluate because it is less clear what actually occurred. If, for instance, the federal government was presenting false or misleading information about the effectiveness of abstinence-only education, and preventing Carmona's office from presenting accurate information, then this would be a good example of political manipulation of science. If, on the other hand, Carmona was prevented from expressing a purely policy disagreement with the administration, then it would not be such a good example. From what I know of the Bush Administration's policies and activities in this area, I suspect the former is closer to what occurred, but the news account does not provide enough detail to be sure.
The point here is that it is important to distinguish between scientific conclusions and normative policy judgments, and to recognize that the former may inform, but rarely determine, the latter. In many instances when scientists charge political interference, their real complaint is that those with policy-making authority do not support the scientists' preferred policies, and many claims of "censorship" are nothing more than the efforts of one administration or another to ensure that federal agencies support administration policy. There are plenty of examples of real science politicization in the current and prior administrations, and these are the incidents that merit our attention.
There is no doubt that the Bush Administration has sought to politicize science in some areas. In this it is not alone, however. As the Post further reported: [Former Surgeon General David] Satcher, Carmona's predecessor, who served from 1998 to 2002, said that under President Bill Clinton he could not release a report on sexuality and public health, in part because of sensitivities triggered by the Monica Lewinsky scandal. As I have argued before (in this series of posts), science politicization is not the province of either party. There is plenty of blame to go around, and a need for greater attention to the institutional arrangements that place undue political pressure on science in the first place.
UPDATE: The New York Times story on the hearing provides more evidence of increased politicization of the Surgeon General's office during the Bush Administration, such as some of the accusations mentioned in the comments. (He had to mention President Bush three times per page in speeches!?! What were they thinking?!?) Like the Post story quoted above, however, I think this report also reflects some confusion about the role of science in public policy. For instance, the Times reports: Dr. Carmona wanted to address the controversial topic of sexual education, he said. Scientific studies suggest that the most effective approach includes a discussion of contraceptives.
“However there was already a policy in place that did not want to hear the science but wanted to preach abstinence only, but I felt that was scientifically incorrect,” he said. Now I certainly would want my children to receive sex education that reduces their chances of contracting sexually-transmitted diseases, but I also recognize that this is based upon a value judgment, rather than a scientific determination. Others may prefer abstinence only education even if it is not the most effective way to reduce STDs. For instance, they may believe such instruction achieves other ends, such as delaying sexual activity by school children (if such education actually achieves this), or is simply more moral. I find this perspective to be misguided, but I do not believe it is "scientifically incorrect." In short, a policy decision to "preach abstinence only" might be wrong, but it would not necessarily be "scientifically incorrect." On the other hand, factually inaccurate or misleading claims about abstinence only education would be. Dr. Carmona would be correct to be concerned about the latter, and insofar as the Bush Administration blocked him it is deserving of criticism, but I think Carmona's statement implies a desire to speak to the wisdom of the policy itself.
Chinese Government to Dynamite Religious Shrine:
When the Taliban demolished statues of the Buddha, many people all over the world, including many non-Buddhists, denounced the destruction as an act of barbarism. The government of China has announced plans to perpetrate a similar atrocity.
In Tianjiajing, Henan province (east-central China)is a century-old sanctuary of the Virgin Mary. The sanctuary was nearly destroyed by the Japanese, and later by the Red Guards, but since 1979, citizens have been rebuilding it.
The sanctuary features a statue of Mary in her role as "Our Lady of Mount Carmel." On July 16, the worldwide Mount Carmel feast day, as many as fifty thousand pilgrims visit the sanctuary. Yet as reported in AsiaNews.it, the provincial government has recently forbidden visits to the shrine, and declared that the police and military will prevent the July 16 pilgrimages. Moreover, the government has declared that the entire shrine will be dynamited. Nor will local Catholics be allowed to save the Mary statue, or other sacred artwork on the site, by removing them before the explosions go off.
Some local Catholics believe that the government may want the property, which sits high on a mountain overlooking a valley, to build a hotel, or for a home for a high Communist party official. This certainly possible; as Mencius, the greatest developer of Confucian thought, observed, "Now the way feudal lords take from the people is no different from robbery." But mere rapacity does not explain why the government is so determined to destroy the statue, rather than allow it to be taken to another location.
The Chinese government is terrified of large public assemblies not directed by the government. Should the Mary statue not be destroyed, its new location might become a site of mass gatherings. People at the mass gathering would of course remember the history of the theft of the statue's original location.
Around the world, many people are urging their own governments to request that the Chinese government cancel plans to demolish the Tianjiajing sanctuary. The dynamiting would reveal the current Chinese regime, at least in this regard, as even more maliciously destructive than the Japanese fascist army or Maoist Red Guards.
"The mandate of heaven" was the traditional ideological basis of the rule of a Chinese government. Mencius said: "Heaven sees as the people see; Heaven hears as the people hear." Thus, the dissatisfaction of the people could remove the mandate of Heaven from a ruler, and place it on another ruler. Mencius considered revolution to be morally imperative in some cases.
A government which trembles in fear at the prospect of China's tiny Catholic minority gathering to honor the Virgin is plainly a government which has lost the Mandate of Heaven; it is the kind of tyranny against which Mencius and Confucius specifically sanctioned armed revolution. (Analects 11:17: Mencius book 7).
Paulsen on Constitutional Interpretation:
Over at Balkinization, Michael Stokes Paulsen has an entertaining post about the Cal Tillisch approach to constitutional interpretation.
More on Abusing Children in the Name of Prosecuting Child Abuse:
From the amicus brief of the Committee of Concerned Social Scientists, State (New Jersey) v. Michaels, one of the bogus child care sex abuse cases of the late 80s and early 90s:
After reading a number of these interviews, it is difficult to believe that adults charged with the care and protection of young children would be allowed to use the vocabulary that they used in these interviews, that they would be allowed to interact with the children in such sexually explicit ways, or that they would be allowed to bully and frighten their child witnesses in such a shocking manner. No amount of evidence that sexual abuse had actually occurred could ever justify the use of these techniques especially with three- and four-year-old children. Above and beyond the great stress, intimidation, and embarrassment that many of the children so obviously suffered during the interviews, we are deeply concerned about the long-lasting harmful effects of persuading children that they have been horribly sexually and physically abused, when in fact there may have been no abuse until the interviews began.
Warning, graphic below.
And out of the mouths of babes, from an interview of one of the children in that case:
ET: So I guess that means you saw her private parts huh? Did Kelly ask the kids to look at her private parts, or to kiss her private part or..
6C: I didn't really do that....I didn't even do it..
ET: But she made you
6C: She made me. She made me .. But I couldn't do it...So I didn't even really do it. I didn't do it.
ET: Did it smell good?
6C: shhh
ET: Her private parts?
6C: I don't know
ET: Did it taste good? Did it taste like chocolate?
6C: Ha, ha. No, I didn't even do it.
ET: You Wee Care kids seem so scared of her
6C: I wasn't. I'm not even.
ET: But while you were there, were you real scared?
6C: I don't know
ET: What was so frightening about her, 6C, what was so scary about her?
6C: I don't know. Why don't you ask her?
ET: Did she drink the pee pee?
6C: Please that sounds just crazy. I don't remember about that. Really don't.
I've Got Nothing to Hide -- But I Do Have A Lot of Downloads:
I've joked before that if you want to top all the SSRN rankings, write a piece about privacy or computer hacking and submit it to Slashdot. Dan Solove proved the point this week by submitting a forthcoming symposium article, "I've Got Nothing to Hide" and Other Misunderstandings of Privacy, forthcoming in the San Diego Law Review. Slashdot picked it up yesterday afternoon, and in less than 24 hours Dan has picked up more than 27,000 downloads. That's right: 27,000, in less than a day. That's a lotta downloads.
A New Academic Stereotype?
In this essay in the American Scholar (hat tip Daniel Drezner), Yale Professor William Deresiewicz claims that there is a new negative stereotype of academics in films and other pop culture media:
The alcoholic, embittered, writer-manqué English professor who neglects his family and seduces his students is a figure of creative sterility, and he is creatively sterile because he loves only himself. Hence his vanity, pomposity, and selfishness; his self-pity, passivity, and resentment. Hence his ambition and failure. And thence his lechery, for sleeping with his students is a sign not of virility but of impotence: he can only hit the easy targets; he feeds on his students’ vitality; he can’t succeed in growing up.
Deresiewecz considers a number of movies and novels about academics that he claims support his thesis. Strangely, however, he ignores what is by far the most popular modern movie series with an academic as the central character, one who teaches at the ultra-scholarly University of Chicago, no less. I refer, of course, to the Indiana Jones series, which has a new installment in the works. Now THAT'S a stereotype that might yet improve the image of our profession.
UPDATE: Some commenters claim that Indiana Jones didn't really teach at the University of Chicago. However, I appeal to the authority of this very scholarly article on the portrayal of the U of C in the movies, as proof that he did.
Universal Health Care:
Some comments to Ilya's post on Brink Lindsey reminded me that I get puzzled when I see libertarian and conservative think tanks (and individuals) go ballistic whenever anyone suggests having the government require "universal health care." See, e.g., the controversies in Massachusetts and California. It seems to me we already have universal health care; by federal statute, anyone has the right to show up at any hospital emergency room in the country, and get whatever care they need regardless of their ability to pay. Now, admittedly, this is an especially dumb kind of universal health care, because it neglects primary care, focuses on especially expensive emergency care, and turns emergency rooms into family physician's office (except, to avoid draconian liability under federal law, emergency rooms will be much more eager to order every possible test under the sun, lest they be accused of neglected their federal law obligations). The costs of such care, along with whatever other costs to the health care system the uninsured are able to pass on (bills not paid, contagious diseases spread, whatever), are paid by the rest of us, as surely as if they came out of the tax system. Moreover, healthy individuals who rely on the safety net for their care instead of paying for their own insurance (as well as employers who don't provide insurance) are free-riding on the rest of us. I'm against socialized medicine, and I'm against a single-payer system, (and I'm against Medicare for that matter, which not only subsidizes many well-off rich, but could hardly be better designed to waste money if it were done intentionally), but I simply can't get up in arms about "universal health care." We have a version of it already, but it's just a stupid and counterproductive version, and I'm willing to listen to alternatives that are less costly and more efficient, even if it means that the government is more directly involved, as with employer mandates.
Judicial Clerkships From Hell:
University of San Diego law professor Michael Rappaport describes his "clerkship from hell" with Third Circuit Court of Appeals Judge Dolores Sloviter. The apparently hellish experience of clerking for Judge Sloviter is also the subject of a new thinly veiled novel by recent Columbia Law School grad Saira Rao, who also clerked for Sloviter. I don't know Judge Sloviter, but I do know Michael Rappaport, and can therefore testify that he's not the kind of person to be easily offended by minor instances of mistreatment by a boss.
Unfortunately, Judge Sloviter is not the only federal judge who apparently abuses her clerks and other staff. Federal judges have weaker incentives to treat their employees well than most other employers do. They, of course, have life tenure and therefore won't lose income or their jobs if they alienate their clerks. It's possible that a reputation for mistreating clerks will reduce the quality of future clerks; however, there will still be enough applicants for the judge to get at least minimally competent help, and that is sufficient for the judge to be able to get the clerks to handle whatever work she wants to transfer to them. Judges with low-quality clerks will, on average, write worse opinions than judges with good ones. But an abusive judge may not care much about that.
This raises the more general issue of how clerkship applicants can avoid such judges, or at least know what to expect if they accept clerkships with them. One possible way is to talk to the judge's former clerks. Unfortunately, however, ex-clerks have strong incentives to avoid saying anything negative about their judges. Even if the judge is a complete troll, his or her name is going to be listed on the ex-clerk's resume for years to come, and prospective employers are likely to call up the judge for a reference. It's not hard to see why this would create a strong disincentive against telling tales out of school. If, however, a judges' ex-clerks nonetheless DO say critical things about him - as Rappaport and Rao have done, that is a very strong signal that this is one judge you should avoid like the plague.
Another potential source of information is ex-clerks for other judges on same court. By the time I completed my year of clerking on the Fifth Circuit Court of Appeals, I had a pretty good idea of which Fifth Circuit judges treated their staffs well, which were indifferent, and which ones (very few, I should note) were petty tyrants (none as bad as Judge Sloviter seems to be). Other ex-clerks probably have similar knowledge about the judges on the courts where they served. Unlike criticizing your own judge, commenting negatively on another judge isn't likely to cause serious damage to an ex-clerks' career prospects. Therefore, you have a better chance of getting an honest answer.
There are probably other ways to get information on judges' treatment of their staff. But I can't think of an equally promising one that is likely to be readily available to clerkship applicants.
The Washington Post's Weak Case That Gonzales Lied About Patriot Act Violations:
The front page of yesterday's Washington Post had a story by John Solomon suggesting that Alberto Gonzales may have lied to Congress about the Patriot Act in 2005. Although the story received a lot of play on the Hill and in the blogs yesterday, on closer inspection I think this story is seriously weak if not outright misleading. Here's the intro of the story: As he sought to renew the USA Patriot Act two years ago, Attorney General Alberto R. Gonzales assured lawmakers that the FBI had not abused its potent new terrorism-fighting powers. "There has not been one verified case of civil liberties abuse," Gonzales told senators on April 27, 2005.
Six days earlier, the FBI sent Gonzales a copy of a report that said its agents had obtained personal information that they were not entitled to have. It was one of at least half a dozen reports of legal or procedural violations that Gonzales received in the three months before he made his statement to the Senate intelligence committee, according to internal FBI documents released under the Freedom of Information Act. I have already called for Alberto Gonzales to resign, and I still think he should resign, so I'm not one to go out of my way to defend Gonzales. But these criticisms strike me as really quite weak, and that they rest on some questionable connecting of dots by Post reporter John Solomon. First, some context. Gonzales's statement was made in the context of the sunsetting provisions of the Patriot Act. Congress had imposed sunset provisions on parts of the Patriot Act in 2001, and Gonzales was arguing that sunsetted provisions weren't necessary. Here's what he said: Finally, I’d like to close by addressing a common question that must be answered by this Congress: the issue of whether we should continue to impose sunset provisions on critical sections of the PATRIOT Act.
The PATRIOT Act was a swift and decisive response to the attacks of September 11. In the weeks and months following the attacks in Washington, Pennsylvania, and New York, Democrats and Republicans came together to address the vulnerabilities in our nation’s defenses. Both Congress and the Administration worked with experienced law enforcement, intelligence, and national security personnel to design legislation to better protect the American people. Although there was extensive consideration in 2001, and although it is unusual to impose sunsets on statutory investigative tools, Congress included sunsets on certain provisions of the PATRIOT Act because members wanted to ensure that we were not risking the very liberties we were setting out to defend.
Today, we can all be proud. The track record established over the past three years has demonstrated the effectiveness of the safeguards of civil liberties put in place when the Act was passed. There has not been one verified case of civil liberties abuse. Did Gonzales have reason to believe that his claim was false? I'm not so sure. The Washington Post story discusses a handful of reports that were sent to Gonzales's office about findings of rules and laws that were broken in investigations relating to terrorism. But as I read the examples, I can't find any that clearly is a "civil liberties abuse" involving the Patriot Act. And given that, I'm not sure we have any reason to conclude that Gonzales was intentionally misleading Congress. According to the reports, which were obtained pursuant to a FOIA request by FOIA whiz Marcia Hofmann of EFF, investigators at some point conducted a physical search without consent, and once improperly continued a FISA warrant passed its deadline. In another case, an ISP goofed and gave the government more than it asked for under a proper national security letter (the government sealed up the package after they realized what had happened). Finally, in one case someone made a typo and asked for the wrong phone number in a national security letter, apparently obtaining the wrong set of phone logs. Among these claims, the first two don't seem to connect at all to the Patriot Act. The Patriot Act amended a set of preexisting laws, and the first two seem to involve laws not even amended by the Act. The latter two examples at least are in the ballpark: while the national security letter authority was created in 1986, it was at least amended by the Patriot Act, so it's at least possible to connect the authority to the Patriot Act. But it doesn't sound like the violations mentioned are directly Patriot-Act-related: typos happen even outside the Patriot Act, and inaccurate compliance with court orders by ISPs is a longstanding issue that well predates the Patriot Act. And even if you conclude that these violations involve the Patriot Act, are they really "civil liberties abuses"? The word "abuse" suggests something flagrant, either something intentional or at least really very reckless. In contrast, the reports that Gonzales's office received seem to involve the kind of occasional accidents that regrettably can occur; it's not obvious to me that they are abuses. I don't want to minimize the nature of the violations. Violations are always bad, and deserve a response. But the issue here is Gonzales's truthfulness, and I don't see how these reports are evidence that Gonzales was lying. In sum, I think Solomon's report is based on a few logical leaps, both about the Patriot Act and the meaning of Gonzales's statement. And let me repeat myself: I'm no fan of Gonzales. I think he should resign as AG. But the question here is whether Gonzales lied about the Patriot Act, and it seems like a pretty serious stretch to suggest that he did. But wait, there's more. I was also very puzzled by today's follow-up story, also in the Washington Post and also written by John Solomon. It seems that DOJ set up a phone call for the press with two DOJ officials, OIPR head James Baker and Ass't AG Ken Wainstein, to make the case that the Post story was misleading. Each defended Gonzales' remark on grounds a lot like the one I have made out above. But instead of featuring that as the key point, Solomon instead came up with what seems like a very strained interpretation of different remarks that Baker & Wainstein also each said. Baker & Wainstein apparently each stated that they had discussed the topic of civil liberties violations with Gonzales in the past. No details were given; the points were made very generally. Here's Baker: "I have discussed and informed attorneys general, including this one, about mistakes the FBI has made or problems or violations or compliance incidents, however you want to refer to them." Here's Wainstein: ""I've discussed a number of times oversight concerns and, underlying those oversight concerns, the potential for violations. And I'm sure we've discussed violations that have occurred in the past." How did John Solomon report that? Here's the title and first two paragraphs of Solomon's follow-up story today: Gonzales Knew About Violations, Officials Say
By John Solomon
Washington Post Staff Writer
Wednesday, July 11, 2007; Page A03
Two senior Justice Department officials said yesterday that they kept Attorney General Alberto R. Gonzales apprised of FBI violations of civil liberties and privacy safeguards in recent years.
The two officials spoke in a telephone call arranged by press officials at the Justice Department after The Washington Post disclosed yesterday that the FBI sent reports to Gonzales of legal and procedural violations shortly before he told senators in April 2005: "There has not been one verified case of civil liberties abuse" after 2001. Now, I don't know if Solomon had any control over the title, but both the title and the lead paragraph seem pretty misleading to me. As far as I can tell, nothing in the article suggests that Gonzales actually knew of the violations relevant to the story, as opposed to other violations at other times. However, the title and paragraph certainly seem designed to make it seem like Baker & Wainstein had admitted to informing Gonzales directly of those reports. Maybe I'm missing something, and if so I would be happy to post a correction. But based on what I can tell so far, I just don't think that Solomon's story holds up.
The First Amendment and Cockfight Videos:
Adam Liptak at the New York Times reports:
A company that broadcasts cockfights on the Internet filed suit in federal court in Miami on Tuesday to challenge a largely untested federal law that makes it a crime to sell depictions of animal cruelty.
The owners of a Web site that shows cockfights says that though cockfighting is illegal in most states, it is legal in Puerto Rico, where the Web casts are from....
The constitutionality of the same law is at issue in a case before the federal appeals court in Philadelphia, in which a Virginia man was sentenced to three years in prison for selling videotapes of dog fights....
The relevant statute, 18 U.S.C. § 48, criminalizes (a) "knowingly creat[ing], sell[ing], or possess[ing] a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce," though with an exception for (b) "any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value."
"[D]epiction of animal cruelty" is defined in (c) to include "any visual or auditory depiction ... of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the [jurisdiction] in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the [jurisdiction]." This means that it's a federal crime to distribute videos of cockfighting in, say, California (assuming the depictions lack "serious ... value") even if the cockfighting was legal in the place (Puerto Rico) in which the video was created.
The statute was enacted as an attempt to stop the distribution of so-called "crush videos," which generally depict a woman's legs and feet, often in high heels, stepping on insects, mice, or kittens; and it does indeed seem to cover such videos, assuming the relevant state law bars the underlying conduct (often yes as to killing kittens, often no as to killing insects). Don't ask me why people would want to watch this stuff, but apparently some get their jollies this way.
But on its face, the statute would also punish:
A TV program showing foreign bullfights, which might be legal in the country in which they're taken, but illegal in at least some states in which the program is shown. A magazine with photographs of people illegally killing endangered species in a foreign country. A magazine with photographs of people committing cruelty to animals, aimed at exposing and punishing such cruelty, so long as the magazine is sold on newsstands or by subscription (rather than given away).
The drafters of the statute might not have wanted to punish this sort of material, but clause (a) does indeed cover it. Clause (b) might well exempt such material, but that depends entirely on how judges and juries interpret "serious religious, political, scientific, educational, journalistic, historical, or artistic value." One can certainly argue that all the above has such serious value, but at least as to the first item and maybe as to the others, some factfinders might conclude otherwise — the test is quite subjective, and some jurors or judges might well say "this bullfighting scene has no serious value; it's just aimed to shock, titillate, and get ratings."
Note also an important difference between this clause and the third prong of the obscenity test, from which the clause is borrowed: clause (b) doesn't say that the work has to be judged "taken as a whole." This means the "serious value" exemption under this law may well be a smaller safe harbor than the "serious value" exemption under obscenity law.
The statute doesn't fit within the existing obscenity or incitement exceptions. President Clinton's signing statement tried to cabin the statute by saying that the Justice Department should construe the law narrowly, limiting it to "wanton cruelty to animals designed to appeal to a prurient interest in sex"; that at least brings it closer to the obscenity exception, though not entirely within it. But the signing statement isn't part of the law, and is certainly not binding on later administrations.
The real question is whether the child pornography exception — the one exception that allows restriction of the distribution of speech because of the manner in which the speech was created — should be extended to cover the distribution of material the making of which involved harm to animals, rather than just harm to children. The argument would be that, as with child pornography,
production of cruelty videos can be done in secret, but the distribution has to be relatively public; a ban on production will thus be very hard to enforce; so long as there's money to be made in distributing cruelty videos, there'll always be someone willing to produce them; and thus, to prevent the harm that takes place when the videos are made (injury to animals), one also needs to stop their distribution.
The argument against extending the child pornography exception would be:
The statute might end up suppressing a lot of valuable speech, such as the film of the bullfight and the like, and clause (b) is an inadequate safe harbor because it's much too vague. The statute will in fact suppress more valuable speech than child pornography law does, because depictions of animal cruelty are more likely to be relevant to political debates or to legitimate art than depictions of sex (or of lewd exhibition of genitals) involving children. The harm that the distribution of this speech causes — indirectly furthering animal cruelty — is much less severe than the harm of indirectly furthering sexual exploitation of children. (The legal system itself embodies such a judgment — child sexual abuse is a very serious crime, generally punished much more severely than animal cruelty. Cockfighting, in particular, is not even a crime in Puerto Rico, though Congress could have outlawed it if it wanted to. For more on when and whether it's legitimate for courts to draw such crime severity lines as a constitutional matter, see Crime Severity and Constitutional Line-Drawing, 90 Va. L. Rev. 1957 (2004).)
This also illustrates how the "slippery slope" can work in a legal system that's built on precedent and analogy. Crush video laws have indeed been advocated by their supporters as analogous to child pornography bans; and while courts might well draw the line between the two, perhaps on the grounds that child sexual abuse is just much more harmful than crush videos, the analogy seemed to be at least helpful in persuading legislatures to enact the laws.
Some might embrace the slippery slope here, if they think that cruelty videos should be banned. Some who disagree about cruelty videos nonetheless might accept the slippery slope risk, on the theory that child pornography is so harmful that we should have an exception for it even if there's some risk that the exception will spread further than one would like. (That's my view.) But one shouldn't pretend that the slippery slope risk doesn't exist.
UPDATE: Here's the Complaint in the lawsuit that seeks to have the law stricken down; the lawyer is David Markus, of the Southern District of Florida Blog.
The Terrorists' Court:
Jack Goldsmith and Neal Katyal have a very interesting op-ed today proposing a new system for detaining terrorist suspects. Seems pretty sensible to me. Your thoughts?
Volokh Readers and the American Political Spectrum -- A Poll:
I was very interested in yesterday's poll results on reader attitudes towards President Bush, and I wanted to add an important follow-up question: Readers, how do you identify yourself on the American political spectrum?
I realize that this is completely unscientific and that I'm asking for a very crude measurement. Still, I'm interested in seeing the results.
New Draft of "Four Models" Paper:
I recently posted a new draft of my forthcoming article, Four Models of Fourth Amendment Protection, on the meaning of the "reasonable expectation of privacy" test. I normally wouldn't mention a draft revision, but this one is substantially reworked and simplified; if you're interested in the Fourth Amendment in general and the reasonable expectation of privacy test specifically, you might want to check it out. I might also try to do a few blog posts about the article, and to respond to some of the interesting comments it has triggered, if readers are particularly interested in that.
Brink Lindsey's Case for Libertarian Optimism:
At Cato Unbound, Brink Lindsey (who earlier won fame for his interesting proposal for a liberal-libertarian political alliance), has a fascinating essay arguing that longterm historical trends favor libertarianism.
Lindsey makes a compelling case that both economic and social freedom have made significant advances over the last 40 years, and that both popular and elite opinion has gradually moved in a libertarian direction over that time. Obviously, Lindsey's analysis of longterm trends has to be weighed against the significant setbacks that libertarian causes have sustained during the Bush Administration as a result of Bush's disastrous big-government conservatism and the resurgence of old-style big government liberalism on the political left. I also have a few other reservations about Lindsey's arguments that I may detail in a later post, if time permits.
Nonetheless, I think that Lindsey is right to insist on the primacy of longterm trends over short-term ones. And I also agree that many libertarians are unduly pessimistic as a result of overrating the significance of recent events, a point I elaborated on in this post. For the reasons Lindsey describes so well, long-run economic and social trends favor libertarianism in significant ways. But we will have our work cut out for us beating back resurgent statism over the next few difficult years.
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