The Volokh Conspiracy

Senate: +5

House: +1.25

N.D. Sen. John Hoeven (R, A) takes seat held by retiring Byron Dorgan (D, D+). +1

Mich. Gov. Rick Snyder (R, refused to answer NRA questionaire) defeats F-rated Dem.

Tenn. Gov. Mike Haslam (R, B-) defeats Mike McWherter (D, C-).

Ark. Gov. Incumbent Mike Beebe (D, A-) beats Jim Keet (R, B+).

Fla. 8. Daniel Webster (R, A) defeats Alan Grayson (D, B). +.25.

W.V. Sen. Manchin (D, A) wins. Takes the seat of the late Robert Byrd. +1

Conn. Sen. Blumenthal (D, F) wins, replacing Chris Dodd. Will be even more of an anti-gun leader.

Ark. Sen. Boozman (R, A) defeats Blanche Lincoln (D, D+). +1.

Fla. 24. Suzanne Kosmas (D, F-rated) loses. +1.

N.H. Gov. Lynch (Dem, C-rated by NRA) re-elected.

Fla. Rubio (R) win. Keeps seat pro-gun.

Missouri. Blunt (R) defeats Carnahan. Keeps seat in pro-gun hands.

N.H. Ayotte (R) wins. Improvement over retiring Judd Gregg (R). +.5

Ohio: Portman (R) defeats former Handgun Control, Inc., board member Lee Fisher. Will replace usually-anti George Voinovich. +1

Kentucky: Rand Paul wins. Replaces retiring Jim Bunning. Will probably be more of a leader on the issue than Bunning was.

Indiana. Dan Coats (R) wins. When previously in the Senate, was sometimes good, but not always. Dem. Brad Ellsworth would have been better. Retiring Sen. Evan Bayh was always bad. +5.

Vermont. Pat Leahy (D) re-elected. Much better to have him as chair or ranking member of Judiciary than Herb Kohl.

Richmond Times-Dispatch columnist Barton Hinkle has a column surveying speech codes at Virginia public universities {HT: co-blogger Todd Zywicki]. It turns out that George Mason University may have the worst of a bad lot:

Free speech is one of those values to which everyone gives lip service. Nearly no one considers himself pro-censorship. Yet as FIRE has exhaustively documented, institutions of higher learning — which ought to welcome freewheeling intellectual debate — often are among the most censorious and oppressive places in America. And unfortunately, a few of the worst offenders are right here in Virginia....

Virginia Tech.... continues to flirt with totalitarian impulses. Witness the attempt earlier this year to shut down the student newspaper because of anonymous comments posted on its website....

Yet when it comes to Orwellian regulation of thoughtcrime, Tech remains a rank amateur next to George Mason University. GMU maintains a speech code that prohibits “any form of bigotry . . . . whether verbal, written, psychological, direct, or implied....”

GMU also insists that students get permission before chalking a message on a sidewalk. What’s more: “The sale, distribution, or solicitation of any . . . newspaper by GMU and non-GMU organizations and individuals is subject to prior authorization.” Taken together, such policies give GMU officials a blank slate to control what members of the university community can say and hear on campus.

This, mind you, at a school named after a man who is called “The Father of the Bill of Rights....”

UVa has taken the right step by relaxing its speech codes. It’s time for the rest of Virginia’s public colleges to do the same.

I would make two points about GMU’s speech code. First, like many such codes, it isn’t enforced very aggressively. In practice, both students and faculty often make public remarks that violate the code, yet escape punishment. Campus life would grind to a halt if the university seriously attempted to crack down on every instance of “implied” or “psychological” “bigotry.” Second, the code was instituted by the central administration, not the Law School. If it were up to the law school faculty, I have no doubt we would vote overwhelmingly to abolish the code. It is also unlikely that GMU’s extremely vague and broad speech restrictions would survive judicial scrutiny.

That said, Hinkle is absolutely right to point out the egregious flaws in the GMU code and to urge George Mason and other schools to repeal their codes without waiting for a legal challenge to arise. It shouldn’t take a lawsuit to force universities to uphold freedom of speech. And the case of UVA shows that repeal is not politically impossible, and won’t draw a massive political backlash.

Quintessential Justice Scalia, from the oral argument in the First Amendment violent video games case:

JUSTICE GINSBURG: Is there — you’ve been asked questions about the vagueness of this and the problem for the seller to know what’s good and what’s bad. California — does California have any kind of an advisory opinion, an office that will view these videos and say, yes, this belongs in this, what did you call it, deviant violence, and this one is just violent but not deviant? Is there — is there any kind of opinion that the — that the seller can get to know which games can be sold to minors and which ones can’t?

MR. MORAZZINI: Not that I’m aware of, Justice Ginsburg.

JUSTICE SCALIA: You should consider creating such a one. You might call it the California office of censorship. It would judge each of these videos one by one. That would be very nice.

UPDATE: I forgot to mention, just for the sake of full disclosure, that my Mayer Brown LLP colleagues and I cowrote an amicus brief in this case.

In a recent post and a forthcoming National Review article, co-blogger Todd Zywicki argues that repealing the Seventeenth Amendment would be an important step towards protecting federalism and limiting federal power. Todd is one of the leading academic experts on the Seventeenth Amendment. But I respectfully disagree with him on this point. I outlined my objections in this post:

Many conservatives and libertarians believe that the 1913 adoption of the Seventeenth Amendment... was a great mistake that led to a vast expansion of federal power.... The assumption underlying this claim is that senators elected by state legislatures would be more interested in protecting state autonomy than senators elected by voters, and therefore more committed to limiting federal power.

Unfortunately, these Seventeenth Amendment critics are wrong. The Seventeenth Amendment actually had little if any effect on the scope of federal power because most senators would have been popularly elected even without it. Moreover, there is no reason to expect senators elected by state legislatures to be more opposed to federal power than popularly elected senators are.

I also disagree with Todd’s claim that the Supreme Court did little or nothing to restrict federal power prior to the enactment of the Seventeenth Amendment. The Court did in fact enforce fairly substantial limits on Congress’ powers under the Commerce Clause and Tax Clause in cases such as E.C. Knight and Pollock. Such judicial review of federalism issues was clearly contemplated by the framers of the Constitution. For example, in Federalist 39, James Madison wrote that “in controversies relating to the boundary between the two jurisdictions [federal and state], the tribunal which is ultimately to decide, is to be established under the general government,” clearly referring to the Supreme Court. He notes that the Court must decide such cases “impartially..., according to the rules of the Constitution,” and that such review will help ensure adherence to the constitutional principle that federal “jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.”

Finally, I am skeptical of claims that state legislative selection of senators was the main force constraining federal power before the Seventeenth Amendment was enacted in 1913. Limits on federal power were underpinned by a much broader political consensus that often included the House of Representatives, and such presidents as Thomas Jefferson, Andrew Jackson, and Grover Cleveland. In fact, it is far from clear that the 19th century Senate was on average more supportive of limits on federal power than the House of Representatives, the White House, and the Supreme Court. To the extent that it was, the cause might well have been the overrpresentation of the South rather than the lack of direct popular election.

In sum, the selection of senators by state legislators was not the only or even the principal structural protection for federalism under the original Constitution, or during the 125 years from 1787 to 1913. Repealing the 17th Amendment today probably would do little to buttress limits on federal power.

Tags: 17th Amendment

A lot of ink has been spilled over the years about how much the Free Exercise Clause should keep courts from addressing employment disputes between houses of worship and clergy. Because such employment disputes frequently hinge on matters implicating faith, courts are often loathe to become involved. Such concerns arise most obviously when a house of worship terminates clergy because of disagreements over theological issues.

But some courts have declined to entertain a suit even where a discharged member of the clergy sues the former employer for defamation arising from statements related to the employment dispute. The Virginia Supreme Court wrote in 2001 that “most courts that have considered the question whether the Free Exercise Clause divests a civil court of subject matter jurisdiction to consider a pastor’s defamation claims against a church and its officials have answered that question in the affirmative.” It continued:

plaintiff’s allegations of defamation against the individual defendants cannot be considered in isolation, separate and apart from the church’s decision to terminate his employment. * * * [I]f a civil court were to exercise jurisdiction [over] the plaintiff’s [lawsuit] under these circumstances, the court would be compelled to consider the church’s doctrine and beliefs because such matters would undoubtedly affect the plaintiff’s fitness to perform pastoral duties and whether the plaintiff had been prejudiced in his profession. Neither the Free Exercise nor [the] Constitution of Virginia permits a civil court to undertake such a role.

Cha v. Korean Presbyterian Church of Washington, 553 S.E.2d 511, 516–517 (Va. 2001), cert. denied, 535 U.S. 1035 (2002); see also, e.g., Thibodeau v. Am. Baptist Churches, 994 A.2d 212, 222 (Conn. App. 2010) (“The plaintiff’s defamation count * * * would require an impermissible inquiry into the defendant’s bases for its action and its ground for evaluating ministers.”); Heard v. Johnson, 810 A.2d 871, 883 (D.C. 2002) (under “most circumstances, defamation is one of those common law claims that is not compelling enough to overcome First Amendment protection surrounding a church’s choice of pastoral leader”).

Cooke v. Tubra, 10–559, petition filed October 22, involves a dispute between the International Church of the Foursquare Gospel and the former interim pastor of the Vernonia, Oregon, congregation of the church, Tim Tubra. (Yes, that Vernonia.) After a rocky start, the church fired Tubra after a dispute over the propriety of a $3,000 withdrawal he made from church funds. The church then read a letter to the congregation saying that “it is now evident that there has been, to some extent, a financial misappropriation by [the] former pastor,” and one church employee emailed another that Tubra had “demonstrated a willingness to lie.” Tubra sued the church for defamation, and a state court jury awarded him damages. The trial court granted the church’s motion for judgment notwithstanding the verdict on the grounds that the First Amendment “operated to deprive the court of jurisdiction over the defamation claim.”

The Oregon Court of Appeals reversed and remanded, holding that the First Amendment is not necessarily a bar “[i]f * * * the statements * * * do not concern the religious beliefs and practices of the religious organization, or are made for a nonreligious purpose.” Here, “the alleged defamatory statements—that the pastor had misappropriated money and had demonstrated a willingness to lie—would not ‘always and in every context’ be religious in nature.” Tubra v. Cooke, 225 P.2d 862, 873 (Ore. App. 2010). The Oregon Supreme Court summarily denied review. 225 P.2d 221 (Ore. 2010).

The case presents some interesting issues. The particular statements at issue are not overtly religious (although the letter in question does begin, “Greetings in the powerful and unchanging name of Jesus Christ”), but many courts, including the Cha and Heard courts, have explicitly said that does not matter, because they have concluded that the Free Exercise Clause prohibits them from becoming involved in disputes involving church discipline and statements made among church members. Because the last opinion in this case was from a state’s intermediate appellate court, this case may fly under many people’s radar. The brief in opposition is currently due Nov. 29.

For a short article on the case from the ABA Journal, check out this:

(A nonlawyer friend of mine is involved in the case, but I have no interest in it other than as a Supreme Court nerd.)

I’ll be providing them here tonight, once the polls close, and results start coming in. I’ll also be doing updates via Twitter, @davekopel.

Besides the candidate races, there are five important ballot issues. Kansas will be voting on whether to restore the individual right to keep and bear arms to state constitution, undoing the judicial nullification in Salina v. Blaksley (1905). Arizona, Arkansas, South Carolina, and Tennessee will decide whether to give explicit constitutional protection to the right to hunt and fish.

The Washington Examiner has this useful guide to some of the key races, organized by when the polls close. Some early races to watch, all of them with poll closings at 7 pm. eastern time:

Peninsular Florida, eastern time zone: 22d district (incumb. Dem. Ron Klein) and 24th (incumbent Dem. Suzanne Kosmos), both terrible on gun rights, and both facing pro-gun opponents. 8th District, where incumb. Dem. Alan Grayson has a B rating from the NRA, but his opponent Daniel Webster has an A (and Grayson’s outrageous incivility provides a non-ideological reason to hope for his defeat).

Indiana, central time zone (polls close at 6 p.m. locally). Open seat, with Dem. Brad Ellsworth (perfect record on Second Amendment) vs. Repub. Dan Coats (uneven record). Either would be superior to retiring Evan Bayh, and Coats has a huge lead in the polls.

South Carolina. 5th District, House Budget Chairman John Spratt. By far the most senior and powerful anti-gun congressman who is at serious risk, among the early poll closings.

Virginia, 11th Dist. Incumbent Dem. Gerry Connolly appears to have a tighter race than expected. Michael Bloomberg has been spending heavily on Connolly’s behalf recently. Conventional wisdom says that Connolly survives a wave, but not a tsunami.

Further information on the gun issue in the 2010 election is available in my guides to the House races and the Senate races.

Several commenters on my post that I have a new article on the 17th Amendment in National Review argued that rather than repealing the 17th Amendment they instead would prefer more vigorous enforcement of the Commerce Clause and 10th Amendments, which would (they presumably would argue) bring about many of the same benefits without offsetting costs.  This is certainly a reasonable position and actually raises some interesting issues in its own right.

First, I don’t think this would accomplish the ends of constitutional design as effectively as repealing the 17th Amendment.  One of the arguments I emphasize in the article is that for the Framers the importance of indirect election of the Senate was to further the system of bicameralism (and thereby to frustrate rent-seeking) as much as it was to promote federalism.  (None of my critics in the comments addressed this argument although they must be fast readers though because they had apparently already read the article and were criticizing my argument within minutes of my post.)  The other proposals for increased judicial review would potentially protect federalism but would do nothing about strengthening bicameralism as a check on rent-seeking.

Second, with respect federalism, there is embedded in this argument a more important point.  As I read The Federalist and other debates of the time, what jumps out at me is that the Framers believed that appointment of Senators by state legislatures would be both a necessary and sufficient condition for the preservation of federalism.  So the basic idea seems to be that it was not thought necessary to create other formal mechanisms for the protection of federalism.  So they did not build in a lot of other supports for federalism because they did not think it necessary.  And, in fact, the original Senate did seem to produce this result.

This meant two things.

First, during the 19th century there was rarely a need for the judiciary to intervene to police overreach by the federal government, such as an aggressive assertion of the Commerce clause by Congress.  Why?  Because legislation that would stretch the reach of the Commerce clause simply was not enacted in the first place.  This also meant that when Congress did in fact start stretching the Commerce clause to the breaking point during the New Deal, the Supreme Court lacked a robust and coherent Commerce clause doctrine that could police the boundaries on the federal government.  For the first century and a half of the Constitution the Supreme Court didn’t really need to be the business of policing limits on the federal government because those limits were rarely tested.

Second, to my mind, the enactment of the 17th Amendment does mean that it becomes more important for the courts to be more aggressive position in exercising judicial review of federal powers, such as the Commerce clause and the 10th Amendment.  Let me explain.

As I read the history of the 17th Amendment, its supporters simply intended to replace the old system of election with a new system.  They did not intend to repudiate the constitutional principle of federalism in the process.  So that what they intended to do was to preserve federalism as a constitutional principle but simply change the method of Senate selection.  The problem is that state legislative election of Senators was the only real structural support for federalism in the Constitution.  So once that pillar was knocked out we were left with the continuation of the constitutional value of federalism but without any good structural support for that value.

Which implies to me that if federalism is still a constitutional value but the structural means of enforcement has been eliminated, then it is appropriate (and perhaps necessary) for the judiciary to increase its role in policing the federalism boundary, such as by more vigorous enforcement of the 10th Amendment and Commerce clause.  I noted that a contrary argument would be that the 17th Amendment was intended to kill federalism as a constitutional value.  I don’t read the debates that way.  My sense is that the death of federalism was an unintended consequence of the 17th Amendment, not an intended result.

I believe that judicial review under the 10th Amendment or Commerce clause would be useful to try to restore federalism as a constitutional value (as opposed to a mere political expediency as it is today).  But I don’t think it would be as effective as repealing the 17th Amendment in providing a structural protection for federalism as a constitutional value.  The original structure of the Senate provided an ex ante protection against “mischievous” legislation by placing the federal-state balance at the heart of prudential questions.  This would be replaced with an ex post system of judicial review.  It would also take what was a combined prudential/constitutional question and make it entirely constitutional.  Thus judicial review while it would provide a useful backstop, I think that it would draw the line on the federal-state balance in a different (and less desirable from a perspective of competitive federalism) place from where it would emerge from the give-and-take of the legislative process.

Finally, there is an argument that democracy is a sort of one-way ratchet, and that once selection of a political office is made democratic there is no going back, so that the whole argument is Quixotic.  That is a strong argument and it is, in fact, difficult to see how we repeal the 17th Amendment.  But I’m not persuaded that this renders the argument moot.

First, the 18th Amendment was repealed by the 21st Amendment, so it is not unprecedented to argue for the repeal of an amendment.

Second, it is not the case that citizens cannot be persuaded to move from democratic to less-democratic means of political selection.  For example, today Nevada voters will choose whether to replace democratic election of judges with what is often called a “merit-selection” regime.  Nevada voters might vote it down but it illustrates the proposition that it is entirely plausible to ask voters to reconsider democratic election of political actors.  Nor is the tide of democracy inevitable–although many states have some sort of popular election of judges, there was never a serious effort to amend the Constitution to provide for democratic election of federal judges.  Indeed, as I note in my article, it remains puzzling to me that many of those who express the greatest shock at proposals to reinstate indirect election of Senators are often those who are also most strenuously attached to the much more anti-democratic process of appointment of federal judges.  They seem to understand that the real question is not whether an institution is more or less democratic but rather which method of selection will best equip that body to fulfill its functions within the constitutional scheme.

The bottom line question is what system of selection of political officers will best further the goals of the Constitution.  I happen to think that the original framework was a pretty good balance of creating a republican government that would tame agency costs by political actors, preserve individual liberty, and frustrate special interest rent-seeking.  Non-democratic appointment of judges with shared authority between the President and the Senate, direct election of House members, state election of Senators, and the elaborate state-based architecture of the Electoral College* strikes me as an ingenious and well-balanced system.  These are all the “auxiliary precautions” that Madison touts in federalist 51 as providing the bulwarks of the constitutional republic.

*Although I do think that the version of the Electoral College as it has evolved of essentially state-by-state popular election of Electors is probably an improvement over the original scheme, although I think there is some systemic value in preserving the basic anti-democratic structure of the state-based Electoral College rather than a national popular vote.  But I haven’t thought about this particular  issue closely enough to have a definitive opinion.

The post below from Conspirator Ilya on speed traps rang a bell with me because I managed to get my first speeding ticket in fifteen years two weeks ago, driving in Virginia.  Madison County, to be exact, at 6:30 am on a weekday, driving on Highway 29 between DC and Charlottesville.  I’ll be a visiting professor in the spring at UVA law school, and I wanted, um, a sense of how fast I could commute once a week.

Let me be the first to admit that I was speeding.  Quite a lot.  I think I was probably going about 80 in a 60 zone.  The officer was very nice and — this is the part that I noted — essentially wrote down the ticket from the 80 that I was doing down to 69.  This saved me some surcharges that would have kicked in over 70.  But I was struck mostly by the psychology of the write-down — in effect, I felt good that I was getting a “sale” price for my speeding ticket and felt much, much better about it than I otherwise would have.  Hard to prove, but I distinctly “felt” like I was getting a bargain apart from the tangible write-down.  But this was shortlived, because when I went online to pay, I discovered that the 9 miles over times $6 per mile was augmented by “fees” and “costs” that brought the ticket up to $115.  The experience has had the intended (I think it is intended) deterrent effect on my driving on 29.

Second, and entirely unrelated to this, on a serious note in response to the Keynsian post below Conspirator Todd, check out the short academic essay by Harvard’s Jeffrey Miron in the new and very interesting issue of the Harvard Journal of Law and Public Policy, “The Case Against the Fiscal Stimulus.” Good brief case on the arguments against the stimulus — not necessarily all stimulus, but at a minimum against this one.  If someone knew of a link to an article that is the same thing on the other side of this issue (i.e., short, academic policy without being overly technical, pitched at roughly this level of sophistication, and making a case without ignoring the other side, I’d be grateful; it would nice to have them side by side).

Third, John Coates, an leading corporate law scholar and old friend on the faculty at Harvard Law School, has a new argument up that is a new twist on the Citizens United case — is it actually good for shareholders?  The paper is up at SSRN, “Corporate Governance and Corporate Political Activity: What Effect Will Citizens United Have on Shareholder Wealth?” I work in some of John’s areas of research, but this one is not one I’m competent to comment on, though I thought it a very interesting read. Here is the abstract:

In Citizens United, the Supreme Court relaxed the ability of corporations to spend money on elections, rejecting a shareholder-protection rationale for restrictions on spending. Little research has focused on the relationship between corporate governance – shareholder rights and power – and corporate political activity. This paper explores that relationship in the S&P 500 to predict the effect of Citizens United on shareholder wealth. The paper finds that in the period 1998–2004 shareholder-friendly governance was consistently and strongly negatively related to observable political activity before and after controlling for established correlates of that activity, even in a firm fixed effects model. Political activity, in turn, is strongly negatively correlated with firm value. These findings – together with the likelihood that unobservable political activity is even more harmful to shareholder interests – imply that laws that replace the shareholder protections removed by Citizens United would be valuable to shareholders.

Fourth, Duke University Law School’s Steven L. Schwarcz and UCLA Law School’s Iman Anabtawi have a new article out, Regulating Systemic Risk, that seeks to give an account of how systemic risk propagates itself through the financial system.  This is a very interesting and important paper, I believe, one of the most interesting on systemic risk that I’ve read; here is the SSRN abstract:

Systemic risk management is at the forefront of financial regulatory agendas worldwide. The global financial crisis was a powerful demonstration of the inability and unwillingness of financial market participants to carry out the task of safeguarding the stability of the financial system. It also highlighted the enormous direct and indirect costs of addressing systemic crises after they have occurred, as opposed to attempting to prevent them from arising. Governments and international organizations are responding with measures intended to make the financial system more resilient to economic shocks, many of which will be implemented by regulatory bodies over time. These measures suffer, however, from the lack of a theoretical account of how systemic risk propagates within the financial system and why regulatory intervention is needed to disrupt it. In this Article, we address this deficiency by examining how systemic risk is transmitted. We then proceed to explain why, in the absence of regulation, market participants are poorly situated to disrupt the transmission of systemic risk. Finally, we advance a regulatory framework for correcting that market failure.

In preparation for my 1L elective course next term on law and economics, I’ve also been re-reading various things, and after a lot of consideration, decided that the best way to understand the Coase theorem is to ... read Coase!  So I’m going to require a short little paperback with a couple of the key articles as part of the reading.  I came to the conclusion that Coase’s original papers tended to be clearer than the much more sophisticated and elegant but, from the standpoint of the uninitiated, much less accessible later versions of it.  Coase wrote to explain a new idea to an audience that had not seen it before, and his prose seems to me clear and straightforward.

Some people think that’s a really “stupid” question.

This Thursday I’ll be back in Washington, D.C. to participate in a book forum on Douglas Kysar’s new book, Regulating from Nowhere: Environmental Law and the Search for Objectivity sponsored by the American Constitution Society.  Other participants include Sheila Jasanoff of the Harvard Kennedy School, Amy Sinden of Temple and, of course, Kysar.  Details here.

Economic studies show that local governments often step up enforcement of minor traffic offenses during recessions in order to increase revenue. I seem to have been the victim of this kind of recession-driven revenue-mongering by the authorities in Falls Church, Virginia.

Twice during the past year, I have been ticketed for driving over the 25 MPH speed limit on Route 7 near downtown Falls Church, Virginia. Both times, the officers claimed I was going over 40 MPH, even though there was heavy traffic and it would have been physically impossible for me to have gone that fast without hitting the car ahead of me (which I didn’t come close to doing). I admit that it is quite possible that I was in fact going over 25 MPH. But this is a busy commercial thoroughfare where nearly all the traffic goes faster than that. As the officer in the second incident admitted to me, “all the cars [he] checked were going over 25 MPH.” Had I chosen to go much slower than the rest of the traffic, I would have endangered both myself and others. That’s why I got nailed in the second incident despite the fact that I knew to be careful in this area after what happened the first time.

During normal times, police generally let minor infringements of the speed limit go because they recognize that it is unrealistic to expect drivers to fully obey the speed limit and because they know that going much slower than the surrounding traffic is dangerous. During a deep recession, however, local governments pressure police to crack down and increase revenue. I suspect that such pressure is particularly likely in areas like Route 7 where much of the traffic is by people who don’t live in the jurisdiction. That way, local governments can fleece drivers who can’t even punish them at the polls for doing so. Such behavior undermines the implicit social contract between police and drivers under which the former focus on motorists who pose a genuine threat to public safety, while the latter can be assured that if they drive safely, minor infractions won’t be punished. The implicit contract is especially vital in an area like this stretch of Route 7, where the posted speed limit is simply unrealistic.

Between 2003 and 2009, I lived in Falls Church and drove down the very same road hundreds of times. I didn’t do anything differently than I have over the last year. Yet I never had any problems with traffic police. Since leaving Falls Church in August 2009, I have been stopped twice in that location, despite going there far less often (no more than 10–12 times in all). It’s possible that I somehow became a much more aggressive driver since the recession began (though social science data suggest that men become more cautious drivers as they pass into their thirties, and I am now 37). But it’s far more likely that it was enforcement that changed rather than me.

I was so angry that I actually contested the first incident in court, notwithstanding folk wisdom suggesting that I was wasting my time. Despite the facts that 1) the officer admitted that she misidentified the color of my Mazda 3, 2) both I and and my then-fiancee (who was with me in the car at the time) testified to the nature of the traffic, which made it impossible to drive 40 MPH, 3) the officer didn’t contest our testimony, and 4) the Mazda 3 is a very common car, the judge ruled against me. I don’t claim that these facts definitively prove that I was innocent. As I said, I don’t know for sure exactly how fast I was going. But they should surely have been enough to prove reasonable doubt, the standard of proof the judge was supposed to be applying.

I’m not an expert on traffic judges. But I suspect that people in that position tend to be biased in favor of the authorities, partly for the understandable reason that the police are usually right, and partly because local governments lobby for the selection of judges who will serve their revenue-raising interests. In Virginia, lower court judges are chosen by their local state legislative delegation, which creates obvious opportunities for lobbying by local governments. The driving public, by contrast, pays little attention to traffic courts because of rational ignorance. Moreover, even a completely unbiased judge can’t do much to protect drivers in cases where the driver really did exceed the speed limit, but in a way that should not have been punished. For these reasons, the judiciary may not be a very effective check against this kind of abuse.

I don’t have the expertise to propose any definitive solutions to this problem. But a few tentative thoughts occur. One possible option is to adopt speed limit laws under which speed limits automatically go up by, say, 5 MPH during a recession. That could offset the tendency towards overenforcement during such periods. Another option is to impose more rigorous state government control over speed limits in areas that get a great deal of traffic from outside the local jurisdiction. That might curb the ability of local governments to use speed traps to fleece out of towners.

Hopefully, those more expert than I am can suggest more and better reforms. In the meantime, I’m going to avoid driving near downtown Falls Church as much as possible. If you live in northern Virginia, you might want to do the same.

The stay is effective while the appeal is pending, meaning that DADT is in effect until at least early 2011 (or until it is repealed by Congress). The opinion is here. Judges O’Scannlain and Trott were in the majority; Judge Fletcher partially dissented, preferring to maintain the injunction during the appeal only as to actual discharges.  Rick Hasen comments here.

The majority noted that acts of Congress are presumed constitutional, especially when Congress is exercising its constitutional power “to raise and support armies.” It also noted that the district court’s decision holding DADT unconstitutional conflicts with decisions in four other circuits, not just in the sense that these other circuits’ substantive conclusions deserve respect but that the district court’s world-wide relief would actually interfere with their conclusions in their geographic areas.

The Court accepted the Obama DOJ’s bare assertions that a quick end to DADT would result in “immediate harm” and “irreparable injury” to the military. It also accepted the assertion that allowing gays to serve openly would require unspecified “training” and “guidance” of military personnel, especially combat forces, which cannot be done in a short time frame.

Overall, while the decision says nothing directly about the ultimate merits of the constitutional challenge to DADT, it does reinforce the heavy burden the Log Cabin Republicans are going to face on appeal.  Military policy is an area where courts rarely intervene, even if the justifications for the policy are very thin (as they are for DADT) and even if similar government policies would be unconstitutional if applied to civilian life. The writing is on the wall for this litigation.

(HT: Chris Geidner)

The Nov. 15 print issue of National Review contains an article by yours truly, “Repeal the Seventeenth Amendment.”  I just saw it in print for the first time today.

Of last week’s eight relists (discussed here), two were denied today: Stroud v. Blount and Wong v. Smith, the latter over the dissent of Justice Alito (joined by the Chief and Justices Scalia). Those were both cases on their first relist. The rest all appear to have been relisted yet again, so Alderman is on its second relist (Dismuke, as noted in the comment thread, was relisted once on 10/15, probably to consider a supplemental brief that petitioner had filed, but now is probably a hold for Sykes v. United States, 10–11311, granted 9/28); Beer v. United States, Allen v. Lawhorn, Wilson v. Corcoran, and Williams v. Hobbs are all on their fourth (!) relist. (See my last post, linked above, for the questions presented.) Since my last post, the Court has called for (and received) the record on Allen v. Lawhorn.

Expect to see some writing from the Court on those soon. Wilson, Allen and Williams may be candidates for summary reversal, but it’s hard to know whether they are really serious candidates without examining the pleadings.

In addition, it looks like the court relisted for the first time in at least two more cases today.

NFL v. Williams, 09–1380, CA8, which presents the question whether, when federal subject matter jurisdiction is not in question, defenses that require analysis of a collective-bargaining agreement may substantively preempt state-law claims under Section 301 of the Labor-Management Relations Act, 29 USC § 185(a), as the Seventh and Tenth Circuits have held, or whether such defenses are categorically irrelevant to preemption analysis, as the Eighth Circuit here and the Ninth Circuit have held.

Allshouse v. Pennsylvania, 09–1396, PA S.Ct., involving whether a child’s statements in an interview with a child protection agency worker investigating suspicions of past abuse are “testimonial” evidence subject to the demands of the Confrontation Clause under Crawford v. Washington, 541 U.S. 36 (2004).

Let me know if you’re aware of others.

Last year I drafted a cert petition in McCane v. United States on whether the good-faith exception to the Fourth Amendment applies to changing law. The Court denied the petition. But having now just read the cert petition in Davis v. United States, the case the Court took today that raised the same issue as McCane, I can now say that the Court sort of granted on my petition after all: If you compare the two petitions, you’ll notice that much of the Davis petition is from the cert petition in McCane.

UPDATE: I’ve now spoken with counsel for Mr. Davis, and it looks like I may be working with him on the merits briefing and argument in the case. I was off working for the Senate when the cert petition in Davis was due, which is why I wasn’t consulted earlier (counsel for Mr. Davis didn’t know how to reach me, which is certainly understandable), and now it looks like I may be joining forces with him on the case.

As regular readers know, I have a forthcoming article that explains why I think the Supreme Court should reject the good-faith exception to the exclusionary rule for reliance on overturned precedent: Good Faith, New Law, and the Scope of the Exclusionary Rule, 99 Georgetown Law Journal (forthcoming 2011). Readers will also recall that I’ve been expecting the Supreme Court to grant cert on a case raising this issue sometime this fall: Specifically, I recently suggested that the Court probably would grant cert on the pending petition in Davis v. United States to avoid the recusal problems raised by DOJ’s petition for certiorari in United States v. Gonzalez.

Anyway, the Court scheduled consideration of Davis for last Friday’s conference, and this morning’s order list announces that the Supreme Court has indeed granted cert in Davis. So this issue will be on the Court’s docket for the Term after all; argument will be some time in the early spring, with a decision expected by June. This should be a very important case on the exclusionary rule, so stay tuned.

Peruta v. San Diego is one of several cases challenging sheriff misapplication of California’s concealed handgun carry licensing statute. The case features Chuck Michel as lead attorney for plaintiffs. The case does not assert that California’s statute requiring a license to carry a concealed handgun for protection is unconstitutional. Rather, the argument is simply that the statute specifies that licenses should be issued to qualified applicants (training, good moral character) who have “good cause.” Pursuant to Heller, lawful self-defense is not only good cause, it is the best possible cause. The case has already survived a motion to dismiss.

Along with Prof. John Eastman, I filed an amicus brief on behalf of the Independence Institute, Law Enforcement Alliance of America, Doctors for Responsible Gun Owners, and the Center for Constitutional Jurisprudence. The arguments are:

 I. The case can be decided without a standard of review, because near-total prohibition of a constitutional right is never constitutional.
II. A “reasonable” regulation is one that does not eliminate the exercise of a right, but instead is narrowly tailored, is based on a significant government interest, and leaves ample alternatives.
III. The state court cases approvingly cited in Heller expressly affirm the right to carry.
IV. Twentieth century state courts decisions affirm the general right to carry for lawful self-defense.
V. McDonald specifically addresses and prohibits mass deprivation of the right to bear arms.

Chief Conspirator Eugene commented on the legal aspects of the four-year old child and tortious negligence a couple of days ago, and linked to a story in the New York Times discussing the court’s holding.  I was intrigued by something else linked to this story, but not about the law.  Rather, when I opened the Times this morning — the paper edition (which, for reasons having to do with my Beloved New Yorker Wife, and despite my public announcements several times that we are giving up home delivery, continues to appear on our door at $65 a month ...) — I saw in the front page an article on this case.  Not the one that Eugene linked to, but a first person essay by Susan Dominus, under a “Big City” tag.  Here is a little bit from the middle:

This month, a judge ruled that the case against the 4-year-old girl involved could proceed (the family of the boy named in the suit did not file a motion for dismissal). Reading the judge’s ruling — which cites cases dating to 1928, and suggests that a 4-year-old could be held to the standard of some mythical “reasonable child” of that age — I kept flashing back to images from my college-era art history class: medieval baby Jesus, looking more like miniature adult Jesus, a representation of children as small adults so outdated as to seem almost incomprehensible through the lens of modernity.

Even as we expect our children to be ever more precocious — bilingual before kindergarten; too old at 4 for picture books, thank you; capable of showing us around our iPhones — somehow we never expect them to be ever more adult; certainly not so adult as to be potentially liable for negligence. One of my own 4-year-old twin sons not only believes Batman lives and breathes, but assumes he will someday grow up to be Batman. I have little fantasy that he is “reasonably” anything in particular when it comes to his judgment.

Obviously the Times or any other newspaper can sort out its strategy for the paper and front page however it thinks will be most successful, but I was struck that the Times has moved in the direction of an explicit magazine-type column, including first person commentary, on the front page.  It is true that the Times has been essentially turning the front page into a magazine for years now, in the sense of running stories that are not really about news of the day or even the week in a format that one might see in a weekly magazine.  But this was the first time I had seen the Times move to adopt a front page, first person, magazine style cultural criticism-opinion essay.  Indeed, first person to the point of discussing one’s own four year children in the essay.

This is not a complaint; it is an observation about changes in how a leading newspaper sees the journalistic function of the front page.  Perhaps the Times is seeking to differentiate itself from the WSJ, which despite many quirky front page stories, still maintains the stories as largely “news” stories.  Perhaps it can work with the smaller and more homogenous readership that the Times seems to be targeting; I don’t know.

It does not appeal to me — and this is not about politics, but the question of whether I read the front page of a newspaper, as it were, mostly for sense or most for sensibility.  The Times has for a long time been seeking to market itself as the bearer of a sensibility, exquisitely tailored (I myself find it tiresomely middle-brow, naturally, and most middle-brow in its upper-middle-brow condescensions).  But of course the Times has no doubt discussed the options thoroughly for how to increase its readerly appeal at the least cost; this might be it, for all I know.  Still, it did seem a noteworthy move in newspaper strategy.  I would be curious if there is anything published, in the journalist-insider press, for example, on how the Times came to this editorial decision.

That sounds right to me in principle, but it’s interesting to see how the court reaches that result under this particular statute (and in particular to see the court’s explicit and implicit judgments about what lovers implicitly consent to). From yesterday’s Chiszar v. State (Ind. Ct. App.):

On April 24, 2009, Chiszar’s fiancee, L.G., was spending the night at Chiszar’s house in White County. L.G. had fallen asleep with her clothes on in Chiszar’s bedroom. At approximately 2:00 a.m. on April 25, L.G. awoke to find that Chiszar had removed her clothes and was attempting to have sexual intercourse with her. L.G. immediately heard “beeping sounds” coming from a video camera sitting next to the television, and she realized that Chiszar was recording her. L.G. asked him, “Why are you videotaping me?” Chiszar responded that he was not videotaping her. L.G. then stated, “There is a camera. I’m looking at the camera. It is right there.” Chiszar again denied that he was videotaping her....

Chiszar ... contends that the voyeurism statute, Indiana Code Section 35–45-4–5, is unconstitutionally vague. That statute provides:

(a) A person ... who peeps into an area where an occupant of the area reasonably can be expected to disrobe, including [restrooms, baths, showers, and dressing rooms] without the consent of the other person, commits voyeurism, a Class B misdemeanor.

(b) However, the offense under subsection (a) is a Class D felony if ... it is knowingly or intentionally committed by means of a camera, a video camera, or any other type of video recording device; ....

(c) “Peep” means any looking of a clandestine, surreptitious, prying, or secretive nature.

... [T]he crux of the statute is consent. Spouses and significant others expect that they will see one another disrobing at regular intervals, and, under most circumstances, participants in such relationships impliedly consent to being seen without clothes on. But that is not to say that “peeping” is categorically permissible in such relationship settings.

It is the nature of the looking that is at issue here. The “looking” that is proscribed under the statute is “any looking of a clandestine, surreptitious, prying, or secretive nature.” There can be no reasonable purpose for that kind of looking since, by definition, it is without the other person’s knowledge, and, therefore, it is without the other person’s consent. To look at someone in a clandestine or secret manner is to hide that looking from the other person, and it is that act that is proscribed by the statute. We hold that individuals of ordinary intelligence would comprehend the statute adequately to inform them of the proscribed conduct and that the statute is not unconstitutionally vague.

To the extent that Chiszar contends the statute prohibits innocent conduct, like videotaping a surprise birthday party, we cannot agree. First, a surprise birthday party is unlikely to take place in an area where somebody is reasonably likely to disrobe. Second, unless the person videotaping the surprise party is hiding the camera and surreptitiously filming the event, there is no peeping. But, again, the “area” element of the statute is unlikely to be implicated in a surprise birthday party scenario.

Here, the evidence shows that Chiszar knew that he did not have L.G.’s consent to videotape her naked or engaging in sexual intercourse with him. While L.G. was sleeping, Chiszar videotaped himself taking L.G.’s clothes off, and he initiated sexual intercourse with her. L.G. woke up at that point and realized that Chiszar was videotaping her. L.G. was upset, and when she tried to grab the video camera, Chiszar took it and tried to prevent L.G. from getting it. When L.G. demanded that Chiszar give her the video camera, he denied having videotaped her. That evidence supports a reasonable inference that Chiszar knew that he did not have L.G.’s consent at the time that he videotaped her, and. thus, that he knowingly videotaped her in a clandestine manner in an area where she was likely to disrobe. Chiszar has not shown that the voyeurism statute is vague as applied to the circumstances of the instant case....

So I went to the Stewart/Colbert “rally” for an hour or so, but there were so many people that you couldn’t get close enough to follow what was happening. I assume it was different up close, but in the back you could barely hear anything and there was no video to watch, either. So for the most part I saw lots of people standing around enjoying the nice day, with lots of funny signs and many folks in Halloween costumes, but I couldn’t really hear anything onstage except for very faint renditions of the musical acts.

From Menagh v. Breitman (reported on in this New York Times article):

In this action for personal injury, plaintiff alleges that the infant defendants, who were racing bicycles on a sidewalk while under the supervision of their parent defendants, struck the plaintiff with their bicycles, causing severe injuries to the elderly plaintiff Claire Menagh.... [I]n this pre-answer motion to dismiss plaintiff’s complaint ... upon failure to state a cause of action, ... [t]he sole issue before the Court is whether an infant aged four years, nine months, is ... incapable of negligence as a matter of law, under the facts presented....

[I]nfants under the age of four are conclusively presumed incapable of negligence (Verni v Johnson, 295 NY 436, 438 [1946]).... Juliet Breitman, however, was over the age of four at the time of the subject incident. For infants above the age of four, there is no bright line rule, and “in considering the conduct of an infant in relation to other persons or their property, the infant should be held to a standard of care ... by what is expected of a reasonably prudent child of that age, experience, intelligence and degree of development and capacity” (Gonzalez v Medina, 69 AD2d 14, 18 [1st Dept. 19791, citing Camardo v. New York State Rys. 247 N.Y. 11 1 [1928]; see also Steeves v City of Rochester, 293 NY 727, 731 [1944] [“The general rule is that ‘a child is not guilty of contributory negligence if it has exercised the care which may reasonably be expected of a child of similar age and capacity.”’])....

This method of analysis has resulted in ostensibly conflicting case law, in which children less than a month apart in age are treated differently as to sui juris status. [In this case, “sui juris” refers to having legal responsibility for one’s actions. –EV] For example, a child aged four years, ten months who is hit by a car while crossing the street at his mother’s direction is non sui juris as a matter of law (Ehrlich v Marra, 32 A.D.2d 638 [2d Dept. 1969]). On the other hand, an unsupervised child of the same age who is struck by a car will not be held non sui juris as a matter of law, absent evidence that the child is otherwise unable to comprehend the danger posed by an approaching vehicle (e.g., Camardo, 247 NY at 111, Yun Jeong Koo, 89 Misc 2d at 775).

Continue reading ‘The Negligent 4-Year-Old’ »

Montana has on its ballot an initiative that would cap interest rates on non-traditional consumer loans (payday, auto title, and installment loans) at 36%.  It seems to be pretty comprehensive except for banks.  It also changes the rules for pawnbrokers.

Here’s an excellent recent analysis of some of the probable effects of the law.  Given that credit card lending has still not recovered from the credit crunch and the Credit CARD Act this law would come at an especially inopportune time for Montana consumers.

Thanks to all those VC readers who made it out last night.  A good time was had by all (or so I hope), and we got to meet Sarcastro, live and in person.

New York Law Journal:

A stir recently erupted in the securities class action bar after Baer issued an order in a case against Gildan Activewear Inc., directing two of the largest firms in the field, Labaton Sucharow and Robbins Geller Rudman & Dowd, to “make every effort” to put at least one woman and one minority lawyer on the case.

It’s not the first time Judge Baer has required “diversity” in class counsel, according to the story.

I’m pleased to read from FIRE that my law school alma mater UVA has repealed its speech code and now has a Green rating from FIRE.  UVA joins William & Mary, which already had a Green rating.

I’m disappointed that I cannot say the same about George Mason, which still has a Red rating.  But I hope that this will shame us into revoking our speech code here.

Today’s NYT reports on how New York City’s health commissioner pressured his staff to create a scary anti-obesity ad campaign, featuring this ad, even if it meant stretching the available scientific evidence on the potential health consequences of drinking a can of soda per day.  In the end, they produced an ad that was “defensible” because, as one participant in the discussions  put it, the ad’s language was “broad enough to get away with.”

UPDATE: Althouse: “The government can’t get the science right. It can’t even get the English usage right.”

The story is here, the indictment is here, and the search warrant executed at the suspect’s home is here. The AP summarizes:

A Pakistani-born suburban father was trying to enlist in a terrorist organization in January and was eager to become a martyr when he unknowingly walked into an FBI sting and began helping plan a purported attack on the Washington subway system, according to court documents.

What followed was an elaborate ruse in which Farooque Ahmed was given intelligence-gathering duties and coded information in a Quran by two individuals posing as al-Qaida operatives as part of the supposed plot to kill commuters on the nation’s second-busiest subway system.

If I understand the story correctly, it sounds like the defendant, Farooque Ahmed, a naturalized U.S. citizen, came to the attention of the feds when he sent e-mails trying to contact terrorist groups to offer his support. The feds took a closer look and found lots of suspicious activity indicating that he was serious, so they set up a sting, with Ahmed thinking he was working with co-conspirators in plotting terrorist attacks when he was really working with undercover agents or informants.

We may never know the precise details of how Ahmed came to the attention of the authorities, but it would be pretty interesting to know that — and from a standpoint of surveillance law and practice, potentially quite important to know that.

UPDATE: I would think the most likely way we’ll find out about the details would be if Ahmed’s lawyer files a motion to suppress the evidence against him on the grounds that it was the fruit of unlawful surveillance — that is, the initial obtaining of his e-mails. If that happens, I suspect DOJ will counter that even if the initial surveillance was unlawful, the evidence is admissible because Ahmed’s involvement in the sting is not a “fruit of the poisonous tree” given Ahmed’s involvement in the sting. To be clear, DOJ won’t be conceding the surveillance was unlawful: Rather, they’ll argue the evidence should come in even if the surveillance was unlawful so they don’t have to disclose any evidence about the initial surveillance. That’s my guess, at least. We’ll have to wait and see.

All the incomplete quotations of Justice Holmes’ “falsely shouting fire” line make me pleased to see today’s decision in People v. Hanifin (N.Y. Sup. Ct. App. Div.):

Defendant parked his car in the middle of Main Street in the Town of Union, Broome County in front of a business that, among other things, manufactures engine control systems for military purposes. He climbed on top of his car, poured a substance from a gasoline can onto his head, called 911 and threatened to light himself on fire if the war in Iraq did not end by a certain time that day. Emergency personnel from numerous agencies responded. Eventually, the responders doused defendant with a fire hose, took him into custody and determined that the gasoline cans contained water. Following a trial, defendant was convicted of falsely reporting an incident in the second degree and County Court sentenced him to five years of probation. He now appeals....

Defendant contends that he was conducting a protest, but his 1st Amendment rights do not permit him to falsely report an impending fire (see Schenck v United States, 249 US 47, 52 [1919])....

This past summer, I was elected to serve on the Steering Committee of the Criminal Law and Individual Rights Section of the District of Columbia Bar. As part of my ‘steering’ duties, I wanted to steer readers to an interesting brown bag lunch we’re putting on next Monday, Representing Cooperators in Criminal Cases. Details, with a link to the registration page, are here.

In May 2009, in the wake of news that Justice David Souter would retire from the Supreme Court, Jeffrey Rosen penned “The Case Against Sotomayor” for The New Republic, in which he argued thatthen-Judge Sonia Sotmayor was not the best available nominee.  Rosen reported that he was hearing from others on the Left who were concerned that she would not be “a judicial star of the highest intellectual caliber who has the potential to change the direction of the court” and that her temperament might limit her influence with other justices.  Rosen’s article was controversial, and prompted many negative responses from other liberals (some of which I chronicled in this string of posts).

Now it is revealed that at least one prominent liberal academic shared the concerns raised in Rosen’s article, and expressed them to the White House.  As just reported by Ed Whelan on NRO, on May 4, 2009, noted Harvard Law School professor Laurence Tribe wrote President Obama urging him not to nominate Sotomayor to the High Court.  Tribe wrote:

If you were to appoint someone like Sonia Sotomayor, whose personal history and demographic appeal you don’t need me to underscore, I am concerned that the  impact within the Court would be negative in these respects.  Bluntly put, she’s not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas wing of the Court on issues like those involved in the voting rights case argued last week and the Title VII case of the New Haven firefighters argued earlier, issues on which Kennedy will probably vote with Roberts despite Souter’s influence but on which I don’t regard Kennedy as a lost cause for the decade or so that he is likely to remain on the Court.

It’s unclear whether Tribe was one of Rosen’s sources, but Tribe’s concerns are similar to those Rosen identified in his reports.  Only time will tell whether these concerns were justified.

As Whelan notes in a series of posts on Bench Memos, there’s more in the letter — much more — including praise for Elena Kagan, comments on Judge Diane Wood, unflattering comments about Justices Breyer and Kennedy, and an appeal for a job at DoJ.  Charlie Savage of the NYT also reports Professor Tribe has revised his opinion of Sotomayor.  He provided the following comment to Savage via e-mail:

I don’t comment on my confidential advice to the president, and I regarded the letter I wrote in May 2009 as confidential. The fact that it was leaked doesn’t change my policy. I can say this much: I’ve long held Justices Breyer and Kennedy in the highest regard, both as friends and as jurists, and I regret any contrary implication some may try to draw from my letter, taken out of context. I would also stress that the reservations I expressed about Justice Sotomayor prior to her nomination were amply refuted by the closer study I was able to give her record before the president made his decision and were happily negated by her performance as a justice thus far.

UPDATE: More from WSJ Law Blog.

I got a mass e-mail about this, and it seems to be making the rounds, so it struck me as worth blogging about. Telegraph (UK) reports:

Sheikh Maulana Abu Sayeed[, president of the Islamic Sharia Council,] said that sex without a wife’s consent was “not good” but could not be called rape....

In an interview with the website The Samosa, he said: “Clearly there cannot be any ‘rape’ within the marriage. Maybe ‘aggression’, maybe ‘indecent activity’.

“It is not an aggression, it is not an assault, it is not some kind of jumping on somebody’s individual right. Because when they got married, the understanding was that sexual intercourse was part of the marriage, so there cannot be anything against sex in marriage. Of course, if it happened without her desire, that is no good, that is not desirable. But that man can be disciplined and can be reprimanded.”

An Assembly of Muslim Jurists of America fatwa seems to take a similar view, though it is not as clear:

[Q:] My questions are these: Is there a such thing as marital rape in the shari‘ah?

On another note, is a man permitted to FORCE his wife to have sexual intercourse with him? this is obviously when she is naashiz and unwilling to have coitus....

[A:] Fatwa ...

For a wife to abandon the bed of her husband without excuse is haram. It is one of the major sins and the angels curse her until the morning as we have been informed by the Prophet (may Allah bless him and grant him peace). She is considered nashiz (rebellious) under these circumstances. As for the issue of forcing a wife to have sex, if she refuses, this would not be called rape, even though it goes against natural instincts and destroys love and mercy, and there is a great sin upon the wife who refuses; and Allah Almighty is more exalted and more knowledgeable.

Now this view strikes me as entirely wrong; forcing someone to have sex should be seen as rape whether the person is one’s wife or anyone else. Marriage is not tantamount to selling oneself into sexual slavery, which is what the “understanding when they got married” line seems to suggest. I think we ought to condemn those people and doctrines that teach that such behavior is anything less than a very grave crime (one of the gravest of crimes).

This having been said, we also ought to recognize that our own legal system took a very similar view until very recently. As the Telegraph article points out, “Rape within marriage has been illegal in Britain since 1991.” According to LaFave’s Substantive Criminal Law treatise, “as recently as 1985 it could still be said that the [marital exemption to rape laws] existed in about thirty states.”

My sense is that virtually all states now do treat forcing one’s wife to have sex as a very serious crime, though there might be some exceptions even as to that. South Carolina law, in particular, generally defines rape to exclude sex with one’s spouse if the spouses are living together (see § 16–3-658), and then defines a separate offense for sex with one’s spouse “when accomplished through use of aggravated force, defined as the use or the threat of use of a weapon or the use or threat of use of physical force or physical violence of a high and aggravated nature” (see § 16–3-615). This latter offense seems to exclude forcing one’s wife to have sex without a weapon and without force that is less than that “of a high and aggravated nature” (and seems to implicitly reject the theory that all such force is by definition “of a high and aggravated nature”). And it provides for a lesser punishment for marital rape, though still a quite substantial punishment (10 years rather than 30 years, if I read it right). Please let me know if I’m misreading this, or if you know of other state laws that exclude some forcible rape of one’s spouse.

But in any event, whether I’m reading South Carolina correctly or not, we ought to remember that the sins of these interpretations of Islamic law today were shared by our own legal system within the past three decades. That shouldn’t keep us from condemning Islamic law on this, of course. But it should put this failing of Islamic law (again, as understood by those interpreters) in perspective. Among other things, this particular aspect of Islamic law is not much of a mark of the law’s supposed vast backwardness or inferiority (though that leaves the possibility that other aspects might be such marks). UPDATE: Saying “This legal system outrageously endorses this evil view that our own legal system outrageously endorsed until the 1980s or later” — rather than just “This legal system outrageously endorses this evil view” — helps us recognize that the system is, in this respect, mere decades rather than centuries behind us.

I should note that in certain borderline cases the law might well view consent as presumed from a preexisting relationship, especially a marriage. Sexually fondling a sleeping spouse (or lover), for instance, should be quite different from sexually fondling someone with whom one does not currently have an established sexual relationship. Likewise, whether sex with someone who is mentally incompetent — for instance, someone who is suffering from dementia — should be criminal might reasonably turn on whether there was a preexisting sexual relationship from which continuing consent could be plausibly inferred (though there might be other lines drawn as well). But that has to do with situations where consent is inferred from silence (or inferred in the absence of ability to either consent or say no), not where the other person clearly refuses to consent.

I don’t have any personal interest one way or the other in the whole so-called “head stomping” incident with the Rand Paul supporter.  And it seems obvious that there are overly-zealous political supporters of all stripes who can commit acts of violence, especially spontaneous violence when they are in a large group.  One can, and many have, recited instances on both sides of the political spectrum.  And none of it should be tolerated and none of it is acceptable or defensible.  Nor do I think it makes the slightest bit of difference to most people in deciding how to vote that there are some loonies out there in the world.

Having said that, this new video of the Rand Paul supporter incident makes the whole context of the incident look much, much different from other things I’ve seen and read.  When I watch that video, I have to say that in that context Valle’s actions could have been perceived as really quite threatening by those around the scene.  She races to the side of the car and thrusts the sign into the car window very aggressively and in what could be reasonably interpreted as a highly-threatening manner.  The members of the crowd then aggressively pull her away from the crowd and wrestle her to the ground.  This Profitt fellow then presses down on her shoulder/back with his foot, seemingly telling her (in a highly threatening way) not to move and pushing with his foot to add emphasis.  He didn’t “stomp her head” or try to injure her.  My impression is that he is trying to tell her not to move, not to injure her.  Paul supporters then run to get police to intervene.  Profitt stated after the fact that he felt like Paul may have been in danger from her actions.

Imagine that it had been a police officer or a licensed security officer who was standing where Profitt was–would he have behaved differently?  Perhaps, but I suspect more in degree than kind.  Given the aggressiveness of her approach to the car window I think a security officer might reasonably suspect she was a threat (Profitt says she lunged at the car several times before approaching it).  Would he wrestle her to the ground and try to incapacitate her?  It certainly seems within the realm of possibility.  Footage I’ve seen of police officers and other trained officials acting a similar situation seem quite similar to me in the way they wrestle a threat to the ground and try to incapacitate the person.

All this depends, of course, on the belief that (1) Profitt reasonably thought that Valle was a threat to Paul and (2) that he did not use unreasonable force in trying to keep her restrained until a police officer arrived.  On both counts there is room for interpretation.  But I have to say that on my viewing, Profitt’s explanation for his actions do not strike me as inherently unreasonable under the circumstances nor that much different from what I would have expected a trained security agent to do under the circumstances.

I don’t think this will have any effect one way or the other on that election.  But apparently Profitt has been charged with a crime.  He has been charged with a misdemeanor, not a felony.  I guess we’ll find out in the end whether he actually committed a crime, but this seems like a case where we should be careful about rushing to judgment.

Nice catch by James Taranto (Wall Street Journal’s Best of the Web):

[T]he New York Times’s Robert Wright offers Williams a lecture:

(Note to Juan Williams: Over the past nine years about 90 million flights have taken off from American airports, and not one has been brought down by a Muslim terrorist. Even in 2001, no flights were brought down by people in “Muslim garb.”)

Still, however “natural” this irrational fear, it’s dangerous. As Islamophobia grows, it alienates Muslims, raising the risk of homegrown terrorism.

To sum up Wright’s argument: You better overcome your irrational fear of Muslims, or the Muslims are gonna gitcha.

(I do agree, by the way, that those Muslims — fortunately very few, but unfortunately enough to potentially cause great damage — who are likely to commit terrorism in America are indeed unlikely to do it in “Muslim garb.”)

Check out this Ninth Circuit petition for rehearing. A tip: The phrase “slime ball, piece of shit, ass clown judges ([names deleted by EV] — this means you)” could use some editing. And it only gets better. Thanks to Paul Milligan and Lowering the Bar for the pointer.

Prof. Doug Laycock — one of the leading Religion Clauses scholars in the nation — and the Becket Fund have just filed an excellent petition for certiorari asking the Court to review EEOC v. Hosanna-Tabor (6th Cir. 2010). The issue is well described in the petition itself:

This Court has long recognized the right of religious organizations to control their internal affairs. Watson v. Jones, 80 U.S. 679, 728–29 (1871). This right includes the freedom of religious organizations “to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116 (1952). Most importantly, it includes the right of religious organizations to select their own religious leaders. Ibid.; Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 724–25 (1976); Gonzalez v. Roman Catholic Archbishop, 280 U.S. 1, 16 (1929).

Based on this right, twelve federal circuits have recognized the “ministerial exception.” (The Federal Circuit has no jurisdiction over cases that could present the issue.) The ministerial exception bars lawsuits that interfere in the relationship between a religious organization and employees who perform religious functions — most obviously, lawsuits seeking to compel a religious organization to reinstate such an employee or seeking to impose monetary liability for the selection of such employees. As the first court adopting the ministerial exception explained: “The relationship between an organized church and its ministers is its lifeblood”; allowing the state to interfere in that relationship — effectively allowing judges and juries to pick ministers — would produce “the very opposite of that separation of church and State contemplated by the First Amendment.” McClure v. Salvation Army, 460 F.2d 553, 558, 560 (5th Cir. 1972).

Based on this principle, every circuit has agreed that the ministerial exception bars most lawsuits between a religious organization and its leaders. Every circuit has also agreed that the ministerial exception extends beyond formally designated “ministers” to include other employees who play an important religious role in the organization. And all eleven circuits to consider the question have agreed that the ministerial exception survives this Court’s decision in Employment Division v. Smith, which reaffirmed the cases underlying the ministerial exception — namely, cases forbidding the government from “lend[ing] its power to one or the other side in controversies over religious authority or dogma.” 494 U.S. 872, 877 (1990).

But the agreement ends there. Federal circuits are in sharp and acknowledged conflict over what legal standard controls the boundaries of the ministerial exception, and specifically over the “primary duties” test used by the Sixth Circuit here. The conflict has produced directly conflicting results in factually indistinguishable cases, and is widely recognized and firmly entrenched. This case presents an ideal vehicle for resolving the split and providing guidance on an important constitutional question.

Have a look at the petition if you’re at all interested in the subject, or if you’re just interested in seeing what a first-rate certiorari petition looks like.