The Volokh Conspiracy

Commenter Pine_Tree on the Nikki Haley thread wrote,

[A]llow a white Southerner to point out something about casual use of the word “white”: sometimes it just means “not black”. Meaning, believe it or not, that in common usage, a school (or gathering, or club, or church, or whatever) in the South that includes no black people is “all-white”. This is true even when there are, for instance, people of Korean or Indian ancestry in said group. Whether this is anthropologically correct, or PC, or even nice is beside the point. It’s just one of the common, casual usages.

I can’t speak to Southern white practices, but I can speak to what I’ve seen quite a bit out here in California in discussions of race: Asians being called white, usually by people who are criticizing institutions for not having enough blacks and Hispanics, and often in the course of arguing in favor of race preferences for blacks and Hispanics. I’m not just talking about Asians and whites being classified together for racial classification purposes — I’m talking about Asians being actually labeled “white.” For a 2008 post that offers a related example, see here; for a 2002 post on the related example of Asian and white women being implicitly placed in the category of “male” (I kid you not), see op-ed of mine from 1998 on the subject:

Asians are now white.

Don’t believe me? A recent MSNBC news headline announced a “Plunge in Minority University Enrollment” at the University of California, with UC Berkeley reporting that “minority admissions had declined 61 percent.” Actually, the total percentage of racial minority students at Berkeley, Asians included, fell from 57% to 49%. If you exclude the burgeoning group of people who decline to state their race, the minority percentage fell only three percentage points, from 61% to 58%.

The drop was exclusively among blacks, Hispanics, and American Indians. Asians, who make up less than 10% of the California population, apparently aren’t a “minority.”

Or listen to former California Chief Justice Rose Bird. Last year, she wrote a commentary saying that, without race preferences, the UC system would be “nothing more than a group of elitist, ‘lily white´ institutions.” A coorganizer of Jesse Jackson’s recent march in favor of race preferences called UC Berkeley’s law school, whose entering class last year was 20% minority, including 14% Asian, “lily-white.” Asians aren’t just white: They are lily-white.

I first noticed this effect 10 years ago, at a party where a friend of mine commented that the guests were all white. I responded by mentioning about a dozen Asians; oh, she said, that’s right, but you know what I mean. At a recent UCLA conference I attended, two speakers complained that everyone on the panel was white, without even realizing that one of the speakers was ethnically Chinese, and another was an Asian Indian with skin darker than that of many American blacks.

Continue reading ‘Asians as “White”’ »

To follow up on Eugene’s post on Governor Niki Haley’s voter registration, here is Haley’s picture from Wikipedia:

I’ve tended to side with the more hawkish Tea Party Republicans in the debt ceiling debate just because I always side with those who want to cut spending the most. But I found Charles Krauthammer’s column today very thought-provoking and to give me pause. In particular, he focuses on the debate within the framework of the structural Constitution rather than just a matter of political strategy. I also like his point that what we are really dealing with is two visions that are fundamentally in competition. Worth a read:

We’re in the midst of a great four-year national debate on the size and reach of government, the future of the welfare state, indeed, the nature of the social contract between citizen and state. The distinctive visions of the two parties — social-democratic vs. limited-government — have underlain every debate on every issue since Barack Obama’s inauguration: the stimulus, the auto bailouts, health-care reform, financial regulation, deficit spending. Everything. The debt ceiling is but the latest focus of this fundamental divide.

The sausage-making may be unsightly, but the problem is not that Washington is broken, that ridiculous ubiquitous cliche. The problem is that these two visions are in competition, and the definitive popular verdict has not yet been rendered.

We’re only at the midpoint. Obama won a great victory in 2008 that he took as a mandate to transform America toward European-style social democracy. The subsequent counterrevolution delivered to that project a staggering rebuke in November 2010. Under our incremental system, however, a rebuke delivered is not a mandate conferred. That awaits definitive resolution, the rubber match of November 2012....

[U]nder our constitutional system, you cannot govern from one house alone. Today’s resurgent conservatism, with its fidelity to constitutionalism, should be particularly attuned to this constraint, imposed as it is by a system of deliberately separated — and mutually limiting — powers.

Given this reality, trying to force the issue — turn a blocking minority into a governing authority — is not just counter-constitutional in spirit but self-destructive in practice.

The Federalist Society has published an exchange between co-blogger Todd Zywicki and myself on the question of whether the 17th Amendment should be repealed. Todd argues that repeal would help reestablish necessary limits on federal power. I contend that it would have little effect, and especially would not lead to a net reduction in federal spending and regulation.

The debate is timely because some conservatives, libertarians, and Tea Party leaders have advocated repeal of the amendment over the last year. For my previous posts criticizing such arguments, see here and here.

UPDATE: It’s perhaps worth noting that this is the first-ever debate over the 17th Amendment between participants who are both Volokh Conspiracy bloggers, George Mason professors, editors of the Supreme Court Economic Review, and former clerks of Fifth Circuit Judge Jerry E. Smith.

So reports the Charleston Post & Courier:

The South Carolina Democratic Party tried Thursday to make Haley out as a liar for checking “white” as her race on her 2001 Lexington County voter registration application.

But the application had no specific option for “Indian.” Her options were “white, black/African-American, Asian, Hispanic, Native American or other.” ...

Dick Harpootlian, the Democratic Party chairman, said whether Haley listed her race as white or not doesn’t matter to him. The point is, he said, that the governor has a pattern of twisting the truth.

“Haley has been appearing on television interviews where she calls herself a minority — when it suits her,” Harpootlian said. “When she registers to vote, she says she is white. She has developed a pattern of saying whatever is beneficial to her at the moment.” ...

The commission doesn’t attempt to verify a person’s race, but that data is used by U.S. Department of Justice to enforce fair voting practices. Collecting the information is a requirement of state law, Whitmire said. If a person checks “other,” he or she is asked to specify....

This strikes me as a pretty ridiculous criticism. Racial and ethnic categories are notoriously mushy on the boundaries, and South Asia is one of those boundaries. “Asian” has often been understood to mean what was once called “Mongoloid” and then later “Oriental” (though “Oriental” was itself ambiguous) — basically having the appearance features characteristic of East Asians, such as the Chinese. “White” has often been understood to mean what was once generally called “Caucasian,” and is still often called that; to quote the Random House, ” of, pertaining to, or characteristic of one of the traditional racial divisions of humankind, marked by fair to dark skin, straight to tightly curled hair, and light to very dark eyes, and originally inhabiting Europe, parts of North Africa, western Asia, and India” (emphasis added).

So if you’re a relatively dark-skinned Indian, do you call yourself “white,” because you see that as basically Caucasian, and because your facial features are pretty close — other than with regard to skin color — to European facial features? Or do you call yourself “Asian,” because this term focuses more on the continent of Asia (even though you’re aware that your Asian near-neighbors to the west, such as Iranians, would pretty surely not call themselves Asian)? Or do you label yourself “other,” on the grounds that you see “white” as different enough from “Caucasian” that the skin color difference suffices to put you in a separate group? I should think that this is a pretty quintessentially personal decision.

Nor is it a decision that’s inconsistent with labeling yourself a “minority,” a term that means different things depending on the context but that in many instances is entirely consistent with being “white” — for an obvious example, see, for instance, Jews or Arabs, who are white and minorities. The Post & Courier asserts that “Haley, the daughter of Indian immigrants, has never emphasized herself as South Carolina’s first female and minority governor and the country’s second Indian-American governor, but it has earned enormous national notoriety.” But even if she had referred herself to as South Carolina’s first minority governor, I don’t see any inconsistency between that and her box-checking on the voter registration form.

Moreover, checking the “white” box on that form actually was not “beneficial to her at the moment,” just as checking Asian or other would not have been beneficial. A voter in modern South Carolina gets no tangible benefit at all from lying about her race on a voter registration application. It’s not like a job application for an employer that gives some people (whether white, black, East Asian, or what have you) a preference based on race, where there’s at least some suspicion that a person may be fudging her racial designation for financial gain. This casts further doubt on the theory that she was somehow deliberately “twisting the truth,” as opposed to just interpreting the boxes the way she sincerely thought was most sensible under the circumstances.

Thanks to InstaPundit for the pointer.

As time grows short and it looks more and more likely that the government will not increase the debt limit by August 2, the question of whom the Treasury Department should pay if it has to make due with current revenues becomes more interesting. There have been a fair number of off-handed comments about this issue in the press, but I have yet to see much written on how to think about the problem conceptually.

One approach is to approach the problem like a business or individual that has a serious cash flow problem but isn’t insolvent. This would suggest ordering payments based on how much the government is likely to need particular creditors on an ongoing basis going forward. If an individual can’t pay all the bills, he is likely to first pay the mortgage (or at least this was true before mortgage defaults became so common that lenders lack the capability to foreclose quickly) and the utilities. If the bank takes your house or the power company refuses to provide heat next month, you have a serious problem. You can stiff the phone company and the cable company because it is less of a problem if they refuse to continue doing business with you. The plumber who already repaired your leaky faucet is even easier to stiff because you don’t need him in the future at all. (Yes, you might have another plumbing problem but unless the plumber gossip network is extremely efficient you will be able to find another one).

This view implicitly underlies the common assumption that bondholders will be paid first. It isn’t that they have some superior moral claim to be paid compared to, say, social security recipients or federal employees. The problem is that, if we don’t pay our bondholders, they (and others like them) are likely to refuse to loan us more money in the future, or at least demand more compensation to do so. (The bondholder gossip network is extremely efficient thanks to the news media and rating agencies).

Based on the principle of paying the people whose cooperation the government most needs in the future, who comes after the bondholders? If the government thinks like a business, it should be contractors who provide the most essential services and who are most likely to refuse to continue to work if they aren’t paid. Social security recipients and soldiers would come last. Social security recipients are done paying into the system and current workers don’t have a choice, so it is of relatively little concern if people don’t fully trust the government’s promise to make social security payments in the future. Soldiers aren’t allowed to walk off the battlefield. Federal employees are also relatively easy to stiff. In the long run they might look for new jobs, but the transaction costs are too high for most to do so if the cash-flow crunch is relatively short lived.

If government officials think in terms of which creditors are most important to them personally rather than to the government as an entity (think managers who serve their own interests rather than those of the corporation’s shareholders), the calculus changes drastically, and the question is not how keep the loyalty of the nation’s most important business partners but how to keep the loyalty of the greatest number of voters. This perspective points toward making sure that the social security checks go out. There are a lot of social security recipients, and they vote.

A very different approach would be to allocate incoming revenues based on the principle of equality. Rather than paying some in full and others not at all, this approach would counsel toward paying everyone to whom the government has a moral obligation — as a result of contract, promise, or reasonable reliance on the expectation of payment — the same amount. This approach would lead the government to pay bondholders, social security recipients, Medicare and Medicaid providers, etc. etc. 60% of what they have been promised (they get an IOU for the rest).

A third approach is to pay in order of the recipients’ need. Those who want to pay social security recipients first are implicitly adopting the need principle, based on the terrible thought of old people being evicted and eating dog food. The need principle has a lot of appeal, and especially so if we assume everyone will ultimately be paid and the only issue is timing, but it would be very tricky to implement given that decisions would have to be made on a class-by-class basis, not individual-by-individual. Many seniors could make do without social security better than many government contractors or federal employees could live without their checks. And while it might be tempting to think that doctors who care for Medicaid patients are better positioned to wait for their reimbursement than poorer creditors, if those doctors stop caring for Medicaid patients, some of the most vulnerable in the country will suffer substantially as a result.

Yet another approach is to try to pay those with the strongest moral claim to receive money from Uncle Sam first. One might argue that this principle would dictate that soldiers serving in Afghanistan or Iraq get paid first, since they are risking their lives to protect the rest of us. This would be even more difficult to implement than the need principle, however, because it arguably requires the government to try to figure out either with which of our creditors we have negotiated the best “deal” or which of our creditors provide services to the nation based in whole or in part on altruistic motives rather than due to naked self interest.

Ultimately, of course, the payment order will be determined based on a messy combination of some or all of these principles, but debates about (a) which principle(s) should take precedence and (b) what the order of payment should be under each of the various approaches would help to rationalize the decision making process.

The decision is Rosenberg v. Harwood (Utah Dist. Ct. May 27, 2001); it’s two months old, but I just saw it because it was just posted on Westlaw. Here’s an excerpt:

Plaintiff Lauren Rosenberg alleges that Defendant Google negligently provided her with walking directions that directed her to cross State Route 224 (SR 224), a rural highway with heavy traffic and no sidewalks, where she was seriously injured after being struck by an automobile that was negligently driven by Defendant Patrick Harwood. Google now brings this motion to dismiss Rosenberg’s claims against it, on the ground that the Complaint fails to state a cause of action against Google. For the reasons discussed below, I GRANT the motion to dismiss Rosenberg’s claims against Google....

In the negligence context, “[a] duty ... may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” ... To determine whether a duty exists, courts analyze several factors, including “the legal relationship between the parties, the foreseeability of injury, the likelihood of injury, public policy as to which party can best bear the loss occasioned by the injury, and other general policy considerations.” Normandeau v. Hanson Equipment, Inc., 2009 UT 44, ¶ 19, 215 P.3d 152. The determination that a “duty does or does not exist is an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is [or is not] entitled to protection.” ...

[1.] With respect to the first Normandeau factor, I conclude that it does not require the imposition of a duty. As a preliminary matter, I note that nothing in the Complaint indicates that there was any contractual or fiduciary relationship between Google and Rosenberg that would give rise to any contractual or fiduciary duties on Google’s part. Likewise, the Complaint does not allege that Google “deprived [Rosenberg] of [her] normal opportunities for protection” or that the parties otherwise had a special relationship that would impose on Google a duty to protect Rosenberg from the negligence of a third party like Harwood....

In support of her claim that a duty exists, Rosenberg correctly states that service providers may be liable if they negligently provide services to their customers. However, “[a] relationship that is highly attenuated is less likely to be accompanied by a duty.” For example, where a publisher or other information provider publishes information to the general public, courts have regularly held that they owed no duty to the public at large....

Continue reading ‘Utah Trial Court Rejects “Negligent Directions” Claim Against Google’ »

From Hoye v. City of Oakland, handed down today:

Within [100-foot zones around entrances to reproductive health clinics,] the [Oakland] Ordinance makes it an offense knowingly and willfully to approach within eight feet of an individual seeking entry to the clinic if one’s purpose in approaching that person is to engage in conversation, protest, counseling, or various other forms of speech.

Because the Ordinance is modeled on the Colorado statute upheld in Hill v. Colorado, that opinion controls much of our analysis in this case and leads us to the conclusion that the Ordinance is a facially valid restriction on the time, place, and manner of speech.... [But] Oakland appears to have read into its Ordinance an exception for speech that facilitates access to reproductive health services and so has enforced the Ordinance against anti-abortion speakers but not pro-abortion speakers. We conclude that, in doing so, Oakland unconstitutionally suppresses speech based on the content of its message....

Possibly the City reads Hill as authorizing the government to regulate speech so as to protect patients from any speech that offends their dignity or privacy, even if the offense stems not from the manner of speech but from the words that are spoken. Protecting privacy and dignity will often require distinctions between content: “You’re a babykiller!” offends a woman’s dignity and privacy; “It’s your right to have an abortion!” often will not....

The Supreme Court [in Hill] ultimately upheld the Colorado statute because it determined the statute to be content-neutral, not because it held that the State could legitimately protect listeners from speech that was offensive only because of the words spoken. Nothing in Hill undermines the bedrock principle that regulations of public speech designed to protect listeners in public fora from substantively offensive speech are fundamentally incompatible with content-neutrality. Oakland’s enforcement policy is therefore a content-based regulation of speech.

Sounds quite right to me, given Hill. Thanks to How Appealing for the pointer.

UPDATE: By the way, for those who keep track of such things, the opinion was written by the quite liberal Judge Marsha Berzon, joined by archliberal Judge Stephen Reinhardt and Carter-appointed Judge Louis Pollak, whom I would also characterize as a liberal.

From RealClearPolitics (which also has video):

“I’ve said time and time again, if the President gets up to August 2nd, without a piece of legislation, he should not allow this country to go into default. He should sign an executive order invoking the 14th Amendment and send that to all the governmental agencies for us to continue to pay our bills. He could do that with a stroke of a pen.

We’ve seen many big things done in history that way. I joked with my staff the other day, telling what was the bill number of the Emancipation Proclamation, it was an executive order. We integrated the armed services by executive order. We integrated public schools by executive order. Sometimes executives must order that things get done.

Of course, the Emancipation Proclamation was an executive order expressly issued under Lincoln’s “power in me vested [by the Constitution] as Commander-in-Chief, of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion.” Freeing slaves in rebel states was a war-making act against the enemy, much as seizing any other enemy property would have been within the President’s authority. That’s why the Proclamation didn’t cover slaves in non-rebel areas. Integration of the armed services was likewise by Executive Order because the President has the power as commander-in-chief over the military, and there were to my knowledge no federal statutes limiting that power. (Congress does have substantial concurrent power “to make Rules for the Government and Regulation of the land and naval Forces,” but I don’t believe there was any statute at the time providing for segregation in the armed forces.)

And of course public schools were integrated as a result of Supreme Court decisions. The President was only involved in sending out troops to enforce a court decision, not issuing an executive order that would violate the law.

Thanks to InstaPundit for the pointer.

The conference is being put on by ASU, in the Phoenix area, on Sept. 10, 2011. Here’s the brief summary:

Designed for Visiting Assistant Professors, Fellows and others who plan to go on the
academic teaching market, but valuable to anyone considering a career as a law professor.

• Learn to succeed in the entry-level law teaching market

• Obtain an insider’s perspective on the appointments process from faculty with extensive hiring experience

• Participate in a mock interview or mock job talk and gain feedback from law professors

Sounds helpful enough that I agreed to give the keynote talk there that morning; if you’re interested, you can register here. (There is no registration fee, though participants have to pay for their own travel and lodging costs.)

That seems to be the story of Naser Abdo, who has been in the news much more than the average private. See “Devout Muslim Soldier Hopes to Avoid Deployment to Afghanistan” (ABC News, Aug. 31, 2010), “[Abdo was] charged with child pornography after 34 images were found on his government issued computer” (Leaf Chronicle (Tenn.), June 15, 2011), “The Army says a Muslim soldier from Fort Campbell who won conscientious objector status but then was charged with possessing child pornography has gone AWOL” (AP, July 20, 2011), “FBI: AWOL soldier had bomb materials near Ft. Hood” (AP, July 28, 2011); UPDATE: “Fort Hood Plot: AWOL Soldier Planned Dual Bombing, Shooting, Officials Say” (ABC News, July 28, 2011).

California Business & Professions Code 460(b) reserves the regulation of medical procedures to the state, and preempts contrary local rules:

No city, county, or city and county shall prohibit a healing arts professional licensed with the state under Division 2 (commencing with Section 500) from engaging in any act or performing any procedure that falls within the professionally recognized scope of practice of that licensee.

(1) This subdivision shall not be construed to prohibit the enforcement of a local ordinance in effect prior to January 1, 2010, related to any act or procedure that falls within the professionally recognized scope of practice of a healing arts professional licensed under Division 2 (commencing with Section 500).

(2) This subdivision shall not be construed to prevent a city, county, or city and county from adopting or enforcing any local ordinance governing zoning, business licensing, or reasonable health and safety requirements for establishments or businesses of a healing arts professional licensed under Division 2 (commencing with Section 500).

This appears to preempt the proposed San Francisco ban on circumcision of boys, at least as applied to procedures conducted by doctors (as opposed to mohels who don’t have a medical license). And a California judge’s tentative ruling released yesterday agreed with this argument (the final ruling is expected at some point after oral argument today):

The Court finds that the proposed ballot Initiative is expressly preempted by California Business and Professions §460(b). The evidence presented is overwhelmingly persuasive that circumcision is a widely practiced medical procedure. California Business and Professions Code §460 (b) applies to medical services provided by a wide range of health care professionals. The statute speaks directly to the issue of local regulation of medical procedures and leaves no room for localities to regulate in this area. In fact, the legislative history of §460(b) confirms that the legislature intended to prevent cities and counties from regulating medical services which is a matter statewide concern. Because the proposed ballot initiative attempts to regulate a medical procedure, the proposed ordinance is expressly preempted. Moreover, it serves no legitimate purpose to allow a measure whose invalidity can be determined as a matter of law to remain on the ballot after such a ruling has been made. City of San Diego v. Dunkl, (2001) 86 Cal.App.4th 384, 389 Accordingly, the Court issues a Writ of Mandate Ordering the Director of Elections for the City and County of San Francisco to remove the measure from the ballot in its entirety.

Why didn’t the court simply hold that the ban couldn’t be applied to doctors, but could be applied to others (such as mohels)? The opinion doesn’t say, but it could be that the judge concluded that if such an important part of the proposal is preempted, the proposal has to be entirely removed, perhaps because voters who vote for the proposal as written might well not have voted for a radically narrowed proposal. (That’s the “severability” question, which often arises both as to voter initiatives and legislatively enacted statutes; there’s a complex body of law related to that in each state.) Or perhaps the court was influenced by the argument that a circumcision restriction limited to non-medical-professions would in effect apply solely or almost solely to religious circumcisions, and would thus be impermissibly targeted against religion.

In any case, unless the decision is reversed on appeal (unlikely, I think), it now appears that there will be no legal battle about the difficult constitutional issues here, whether having to do with parental rights or federal and state religious freedom constitutional provisions. The dispute would have to await either a California statute or a state statute or local ordinance in some other state, and neither option seems terribly likely politically. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

In the most recent issue of the Weekly Standard Christopher Caldwell has an article, “Elizabeth Warren, Closet Conservative: The Most Misunderstood Woman in Washington.”  The basis for Caldwell’s article is Professor Warren’s 2003 book, The Two-Income Trap, which he refers to as “a brilliant and counterintuitive work of pop economics.”  Caldwell summarizes what he interprets as the central proposition of Warren’s book:

People were going bankrupt at an alarming rate.....  Why this was so had nothing to do with consumerism. Parents spent 32 percent less on clothing, and 52 percent less on appliances. What they spent more on was big necessities: mortgages (up 76 percent), cars (up 52 percent), taxes (up 25 percent), and health insurance (up 74 percent). And the reason for all but the last of these was the entry of women into the workplace. Working mothers “ratcheted up the price of a middle-class life for everyone, including families that wanted to keep Mom at home,” Warren wrote. As a result, she showed, two-income families have less disposable income than one-income families did in the old days. What is more, today’s families are deprived of a safety net​—​a spare worker​—​of the sort her own family was able to lean on when she was a child. If anything goes seriously wrong in your average two-earner family today, they are in grave financial jeopardy.

But here’s the catch (as I have noted previously here and here)–while that conclusion is what Professor Warren says is the upshot of her analysis and is the what appears to be the conclusion of her analysis, that is not actually what her own data actually shows.  Although Caldwell’s reading is the logical and natural inference of how Warren presents her argument in the book, it is not actually what the data shows.  Although he is far from the first, Caldwell has fallen into the two-income trap.

Continue reading ‘Christopher Caldwell Falls for the Two-Income Trap’ »

Judge Royce Lamberth of the U.S. District Court for the District of Columbia issued a final ruling today in Sherley v. Sebelius, upholding federal funding of human embryonic stem cell research eleven months after creating an uproar in the medical research community by issuing a preliminary injunction halting the funding. The decision came three months after the D.C. Circuit reversed his preliminary injunction on the ground that a federal appropriations statute (often known as the Dickey-Wicker Amendment) does not prohibit funding of research using the embryonic stem cells. Lamberth today held that the Circuit Court’s decision required him to resolve the underlying merits of the case in favor of the government and against two scientists who conduct research on adult stem cells and were earlier found by the D.C. Circuit to have “competitor standing” to challenge the Obama Administration’s expansion of the pool of research projects eligible for federal support. Lamberth also denied two arguments made by the plaintiffs that were not directly addressed in by the D.C. Circuit’s April ruling: that the Administration’s new policy of funding embryonic stem cell research violated the Dickey-Wicker Amendment by providing an incentive for scientists to destroy embryos (not using federal funds) in order to create new cell lines, and that the Administration violated the Administrative Procedure Act when promulgating the new funding regulations.

The annually-enacted Dickey-Wicker Amendment to federal appropriations prohibits federal funding of “research in which a human embryo or embryos are ...knowing subjected to risk of injury or death.” Last year Lamberth ruled that the word “research” in the Amendment refers not just to the particular project for which a grant recipient seeks federal funding (such as studying whether and how embryonic stem cells can be used to fight disease) but also the earlier steps in the chain of events, which include destroying an embryo to derive the stem cell line. He thus held that any research using embryonic stem cells is necessarily “research” that harms embryos. On a 2–1 vote, the D.C. Circuit held that whether the term “research” refers to the narrower project or the broader set of related events was ambiguous, and thus that the Department of Health and Human Services was entitled to Chevron deference of its narrow interpretation of the term. It was this interpretation that Lamberth held (correctly) required him to enter a final judgment on the merits for the government.

Lamberth’s analysis of the plaintiffs’ secondary claim that the federal funding would encourage the destruction of more embryos was particularly insightful. Lamberth emphasized the words “in which,” explaining that this phrase signifies that the risk of harm to embryos must come from within the research itself in order to run afoul of Dickey-Wicker. Had Congress wished to prohibit funding of all research that might indirectly result in harm to embroys — a result Lamberth said would lead to “far-reaching” consequences and “strange result[s]” — it could have use phrases such as “from which” or “as a result of which” rather than “in which.”

Returning to the debt negotiations for a moment. A fellow law blogger, Professor Jonah Gelbach, takes up the first question I asked in my earlier post on the negotiations — what happens if you take away the pressure of the debt ceiling altogether? It’s an important short post at PrawfsBlawg. His answer, based on looking at credit markets, is that solvency is not the issue:

On July 25, the day Anderson asked his question, the market was requiring Treasury to pay well less than 1 percent for a 3-year loan, 3.03 percent for a 10-year loan, and 4.31 percent for a 30-year loan.

Two points here. First, the financial markets already focus on the longer term question, because bond purchasers are choosing to lend over the long term.

And second, the markets aren’t worried about the government’s capacity to make good on long term loans. People with capital to invest are lending it to the U.S. Treasury at very low rates for very long periods of time. The notion that the U.S. government faces anything like a solvency crisis is wildly inconsistent with what financial markets are telling us. The real risks from the current political crisis are (i) the possibility of default on short-term debt,* and (ii) the huge negative shock to aggregate demand that would accompany switching to a de facto balanced-budget fiscal policy in the middle of a serious downturn.

I take the point, but still worry about confounding variables. E.g., where else do they go? It’s long term debt, of course, but there are many reasons why investors require these maturities, reasons that might lead them here even if they had substantial doubts.

In addition, going to Megan McArdle’s post on the seeming unconcern on Wall Street about either the long term or the short term prospect of no deal, I wonder if the bailout culture has somehow induced a sense on Wall Street that, when it comes to massive political-economic moves of this magnitude, there is always the possibility of a do-over and a reset.

Call it a “culture of mulligans.” The threatened consequences are too earthshaking to be the result of a mere artificial, merely human deadline; unless it is an actual, natural tsunami, these human-created deadlines can always be re-worked after the fact, without consequences. It’s not precisely moral hazard; it is an attitude that springs from the culture of Wall Street accustomed to bailouts after the fact. It receives them from government; why shouldn’t government receive them from government, after the fact, as well? Consequences that are supposedly horrendous and will really truly happen on schedule, just like the incoming asteroid on a collision course, actually are endlessly revisable. It’s as though they were all closet marxists who see the supposed natural and immutable order of things as merely the veil of ideology.

That’s in addition to the bankers’ expectation that in any case they would once again get bailed out — true moral hazard. On that view, a proper internalization of costs would mean that bankers would be well and truly screaming like crazy and indicating in pricing already their dismay with the situation. They’re not, because of a form of moral hazard that causes them to assume they’re insured against such events.

We should add the possibility that the bankers are not as smart as they, and we, continue to assume they are. The proposition that market players behave irrationally and en masse in situations that fundamentally turn on political considerations can’t exactly be ruled out of court these days. Wall Street and Washington operate now more than ever in their own space of politicized markets, and the usual rules of the price mechanism don’t necessarily tell you what you need to know. The fix is in, &tc.

Finally, there is the possibility — horror of horrors — that maybe the bankers actually share the Tea Party sense that there are worse things than a downgrade from the rating agencies or a declaration of default from a rating agency, and failing to address the long term solvency problem now is one of them. Why don’t the price signals suggest, as much as anything else, that Wall Street thinks:

(i) that the Tea Party view of the long run is correct,

(ii) moreover that the Tea Party view is likely to prevail politically now and beyond 2012, and

(iii) that it will restore health to the long term credit of the United States.

That’s a very long chain of premises, and they are called premises because our interest in them at this moment is not whether they are true or false, but the implications for the possible reasoning of bankers if they were true. I don’t think the price data as such rule this out as a possible explanation for why Wall Street seems sanguine. I’m not endorsing any substantive view here, nor am I suggesting that this is particularly likely as an explanation for current pricing — I’m just urging that there are many ways to read the bond price tea-leaves, and they might even include things as apparently unlikely as this string of premises all being true.

Consider what this suggests for the two political combatants, however, and not just Wall Street. On this view, the Tea Party and the Democrats share one belief, a procedural one — that a line must be drawn in the sand now, it can’t wait. Each of them says what Captain Picard says about the Borg at the beginning of First Contact — a line must be drawn here. But the line goes to a different issue for each of the players, even though each has unavoidable implications for the other. For the Democrats, it is the debt ceiling, and the implied question of liquidity; but for the Tea Party, it is the solvency issue that, in their estimation, otherwise never gets addressed and which is, at bottom, the real source of concern even over liquidity and for which reason liquidity is even at question.

They each have reasons for fighting to the death, here and now, but they are actually fighting over slightly different propositions. They grapple and struggle as though they were taking opposite sides in a debate — and in the “objective” sense, as we marxists like to say, they are. But each seen from its vantage point is in fact fighting over, and fighting for, a proposition that is distinct from the proposition disputed by the other side. The two sides are not fighting over perfect negations of each other, and that makes the issue both far more complicated, less likely to end in compromise, and difficult to game.

Where the bankers come down in all this I have no idea — but I am not persuaded that surface price signals are dispositive in a situation that is fundamentally political.

(PS. Please be civil in the comments — I won’t have time this week to go through and read them or weed things out. Look, after a quick glance and a couple of deletions, I’m closing comments here.  Apologies to people with useful thoughts; I’m serious when I ask people to be civil.)

No, really. South Carolina bans obscene or indecent bumper stickers and similar “device[s]”, providing that a person may be fined for “operat[ing] a motor vehicle in this State which has affixed or attached to any part of the motor vehicle which is visible to members of the public not occupying the vehicle any sticker, decal, emblem, or other device containing obscene or indecent words, photographs, or depictions.” “Obscene” is defined to follow the First Amendment test for unprotected hard core pornography, so it can’t apply here, because there’s nothing here that appeals to an interest in sex. But “indecent” is defined more broadly:

A sticker, decal, emblem, or device is indecent when:

(1) taken as a whole, it describes, in a patently offensive way, as determined by contemporary community standards, sexual acts, excretory functions, or parts of the human body; and

(2) taken as a whole, it lacks serious literary, artistic, political, or scientific value.

The trouble for the government, though, is that precisely because this is broader than the obscenity test, it punishes speech that is constitutionally protected (vulgarity that has no sexually arousing component, and is thus neither obscene nor even obscene-as-to-minors). The law is thus unconstitutionally overbroad, and thus facially invalid. A rather broader ban on bumper stickers containing “profane or lewd words describing sexual acts, excretory functions, or parts of the human body” was struck down in 1991 by the Georgia Supreme Court. But even this narrower ban is pretty clearly unconstitutional.

Those who want to know more about such matters can read our posts about the anti-car-testicle campaign in various state legislatures and a police crackdown on “patently offensive” bumper stickers in a Tennessee town. Oh, and, according to the Charleston Post & Courier, “The last major flap over the state’s obscene bumper sticker law was in the 1990s, when S.C. Highway Patrol officers were pulling over drivers for decals of the cartoon character Calvin urinating. A Gaffney couple called for a jury trial, the American Civil Liberties Union defended their right to free speech, and a judge dismissed the case.” (Now if they had only called the copyright lawyers .....) Thanks to Thom Peters for the pointer.

The AP reports (thanks to reader “Herb Spencer” for the pointer):

Rep. James Clyburn of South Carolina, a member of the Democratic leadership, said he told fellow Democrats that Obama should both veto any House GOP plan for a short-term extension of the debt ceiling and invoke the 14th amendment, which says that the validity of the nation’s public debt “shall not be questioned.”

The White House has rejected resorting to this tactic to keep the nation from defaulting, questioning its legality, but Rep. John Larson of Connecticut, who chairs the Democratic caucus, said “we’re getting down to decision time” and “we have to have a failsafe mechanism and we believe that failsafe mechanism is the 14th Amendment and the president of the United States.”

Larson said Clyburn’s proposal on the 14th Amendment was met with applause by other Democrats at their meeting.

White House spokesman Jay Carney, asked about Clyburn’s proposal, said only Congress has the authority to extend the government’s borrowing authority. “The president does not have authority to raise the debt ceiling. It’s not a plausible way to address this problem and we do not think it is an option,” he said....

It seems to me that the White House is right on this and Reps. Clyburn and Larson are wrong, for reasons given by leading liberal constitutional law scholar Prof. Laurence Tribe (Harvard) here and here. You can read Prof. Tribe’s argument in its entirety, but here are some excerpts:

[W]hat is the government to do if, come August 3, it does not have enough money to make all of the expenditures that Congress has required by law? The answer, I think, is that it must prioritize expenditures: some payments [i.e., basically payments other than interest payments on the national debt] simply have to be postponed until the Treasury has enough money to make them....

Other proponents of a constitutional deus ex machina have offered a more modest interpretation of the public debt clause, under which only actual default (as opposed to any action that merely increases the risk of default) is impermissible. This interpretation makes more sense. But advocates of the constitutional solution err in their next step: arguing that, because default would be unconstitutional, President Obama may violate the statutory debt ceiling to prevent it.

The Constitution grants only Congress — not the president — the power “to borrow money on the credit of the United States.” Nothing in the 14th Amendment or in any other constitutional provision suggests that the president may usurp legislative power to prevent a violation of the Constitution. Moreover, it is well established that the president’s power drops to what Justice Robert H. Jackson called its “lowest ebb” when exercised against the express will of Congress.

Worse, the argument that the president may do whatever is necessary to avoid default has no logical stopping point. In theory, Congress could pay debts not only by borrowing more money, but also by exercising its powers to impose taxes, to coin money or to sell federal property. If the president could usurp the congressional power to borrow, what would stop him from taking over all these other powers, as well?

The case is People v. Louis, a New York trial court case decided Wednesday. This seems consistent with United States v. Popa (D.C. Cir. 1999), discussed in this post, and also (though the analogy is less direct, given the difference in the statutes involved) with the Nebraska Supreme Court People v. Drahota decision).

The defendant is accused of having committed a violation of PL §240.30(1), Aggravated Harassment [in the second degree].... The supporting deposition in this case states, in pertinent part, the following:

... On or about and between February 22, 2010 and April 11, 2010, while employed at the Nassau County District Attorney’s Office ... as an Assistant District Attorney, I received a series of telephone voice mail recordings from defendant, Nicolas Pierre-Louis.... In the voice mails, Nicolas Pierre-Louis yells, screams and uses profanity, stating in part, “I’m coming at you with fury,” and, “piece of shit faggot fucking cock sucking cock,” and “bitch, you will lose your fucking job,” and “I got all the juice enough to make sure that you’re holding a can in the fucking street,” and “and I will keep calling until you arrest Jessy Pierre-Louis, so do your fucking job” and “when you lose your job bitch, don’t say I didn’t warn you,” and “I will rain hell on your office and make sure heads roll,” “you racist bitch” and “you assholes” and “you motherfuckers.” Nicolas Pierre-Louis says many other profane and offensive comments left recorded on my office voice mail that are alarming and annoying. The repeated calls left by Nicolas Pierre-Louis caused me to fear for my safety and the safety of [another] Assistant District Attorney ... because of the screaming outbursts of rage and anger directed toward [the other ADA] ... and I [sic] and the content of what he was saying during his many calls.

“Speech is often ‘abusive’ — even vulgar, derisive, and provocative — and yet it is still protected under the State and Federal constitutional guarantees of free expression unless it is much more than that. Casual conversation may well be ‘abusive’ and intended to ‘annoy’; so, too, may be light-hearted banter or the earnest expression of personal opinion or emotion. But unless speech presents a clear and present danger of some serious substantive evil, it may neither be forbidden nor penalized.”

Having reviewed the supporting deposition containing the statements made by the defendant, the court is of the opinion that, though vulgar and vituperative in nature, the statements do not rise to the level of “fighting words” as described by Chaplinsky and Cohen nor do they rise to the level of a true threat. In spite of the fact that the defendant uses a number of derisive terms in reference to the ADA, his statements seem confined to threats to have the ADA fired. Even the worst of the alleged statements, “I’m coming at you with fury,” is too vague to be considered a true threat, but is more properly understood in context with the defendant’s other statements.

A person is guilty of the violation of Aggravated Harassment [in the second degree] when “with intent to harass, annoy, threaten or alarm another person, he or she either:

(a) communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication in a manner likely to cause annoyance or alarm; or

(b) causes a communication to be initiated by mechanical or electronic means or otherwise with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication in a manner likely to cause annoyance or alarm.

The statute does not seek to distinguish between speech which is protected by the First Amendment and that which is not.

Continue reading ‘Court Dismisses Prosecution for Leaving Nasty Voice-Mails for Prosecutor, Suggests New York Telephone Harassment Statute Is Facially Unconstitutional’ »

I generally don’t pay much attention to photography (or art more broadly), but this array of photographs of joggers after a sprint, matched against their photographs in “real life”, struck me as quite interesting. “I wanted to show the difference between our natural and brute side versus how we represent ourselves to society,” said photographer Sacha Goldberger. Thanks to GeekPress for the pointer.

So an Ohio trial court judge held last Friday in State v. Stephens. There had been an earlier case on the subject in Ohio, State v. Gilchrist (Ohio Ct. App. 2003), and the Gilchrist trial judge found that applying the law to the defendant did violate the First Amendment, a decision that the state apparently didn’t properly challenge on appeal. But the judge in the most recent case concluded that Gilchrist was limited to situations where the defendant was quite far from the dog. In a case where the defendant was much closer to the dog, the law (here, a city ordinance banning “willfully and maliciously taunt[ing], torment[ing], [or] teas[ing] ... any dog used by the Police Department in the performance of the functions or duties of such Department”) could constitutionally be applied to him.

This report (Values, Dreams, Ideals: Muslim Youth in Southeast Asia, with a pointer to the questionnaire and the raw data) struck me as interesting, because Malaysia and Indonesia are often mentioned as places in which a more moderate form of Islam is generally practiced, and because Indonesia has the largest Muslim population of any country in the world. The results are pretty complicated, so let me just give a couple of reported results, based on the questionnaire and raw data document (many of these items don’t seem to be mentioned in the report, though perhaps I missed them):

1. The statement “Terrorism gives Islam a bad image” was endorsed by 55.3% to 27.2% among Indonesian youths and “Terrorism gives Islam a bad name” was endorsed by 59.3% to 39.8% among Malaysian youths.
2. The statement “Suicide bombers are needed to defend Islam” was rejected by 77.5% to 15.5% among Indonesian youths and 55.8% to 43.3% among Malaysian youths.
3. The question “Do you think the Quran should replace the 1945
   constitution?,” was answered “no” by 75.3% to 20.4% of Indonesian youths, but “In your view, should the Quran replace the constitution of your country?,” was answered “yes” by 71.6% to 25.2% among Malaysian youths.
4. The statement “It’s OK to be gay or lesbian” was rejected by 98.8% to 0.6% among Indonesian youths (though note that the question did not ask about whether such behavior should be outlawed), and 99.4% to 0.5% among Malaysian youths.
5. The statement “The cartoonist who drew the image of the Prophet Muhammad had freedom of expression” was rejected by 70.5% to 19.7% among Indonesian youths and “The cartoonist who made the Mohamed-Cartoons had freedom of expression” was rejected by 82.8% to 15.5% among Malaysian youths.
6. The statement “Osama bin Laden is an Islamic liberation fighter” was endorsed by 51.1% to 28.1% among Indonesian youths and “Osama bin Laden is a freedom fighter” was endorsed by 62.4% to 33.3% among Malaysian youths. This makes me wonder whether the endorsement of “terrorism gives Islam a bad image” tends to include the view that Bin-Laden-style terrorism gives Islam a bad image, or tends to exclude it because so many view Osama bin Laden as a “freedom fighter” and thus presumably not a “terroris[t].”
7. The statement “I like the US more since Barack Obama became president” is endorsed by 50.2% to 40.5% among Indonesian youths, but rejected by 60.8% to 35.8% among Malaysian youths.

There’s a lot more there in the questionnaire and raw data file; check it out yourself, and please let me know if I erred in any of my summaries above. Many thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

The Los Angeles Times is reporting that California Governor Jerry Brown is nominating University of California at Berkeley law professor Goodwin Liu to the California Supreme Court.  President Obama had nominated Liu to the U.S. Court of Appeals for the Ninth Circuit, but Liu withdrew his nomination after Senate Republicans blocked his confirmation.

(Hat tip: Ed Whelan)

The New York Times has a remarkable — and remarkably disturbing — story about a man who framed his girlfriend for several armed robberies after she filed rape charges against him. Fortunately, his plot unraveled before her case went to trial; now he is the one facing charges.

I’ve heard many people argue that “Congress shall make no law ... abridging the freedom of speech, or of the press” means that all speech restrictions — or at least all federal speech restrictions — are unconstitutional, period. Which part of “make no law” don’t you understand?, some people colorfully argue. Well, I understand “make no law” just fine, as do those who support the constitutionality of some speech restrictions. The real difficulty is with “the freedom of.”

Let’s begin with “the freedom of.” Note that the First Amendment doesn’t say that Congress shall make no law restricting speech or press; rather, Congress can’t restrict “the freedom of speech” and “the freedom of the press.” Maybe that’s just a fancy way of saying “speech” and “press.” But maybe it suggests that “the freedom of speech” and “the freedom of the press” were references to broader legal concepts that were used to refer to limited freedom, not unlimited freedom. For instance, perhaps the freedom of speech and of the press were understood as excluding libel and slander, or possibly even obscenity, threats, and some other kinds of speech.

This interpretation is supported, I think, by the pre-First-Amendment state constitutional free press provisions (and, much less commonly, free speech provisions) that are written in absolute terms, yet coexisted with some speech restrictions, chiefly libel law. Thus, from Virginia in 1776: “That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.” From Pennsylvania in 1776 (closely followed by Vermont in 1777): “That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.” From Maryland in 1776: “That the liberty of the press ought to be inviolably preserved.” From North Carolina in 1776: “That the freedom of the press is one of the great bulwarks of liberty, and therefore ought never to be restrained.” From Massachusetts in 1780 (closely followed by New Hampshire in 1784): “The liberty of the press is essential to the security of freedom in a state it ought not, therefore, to be restricted in this commonwealth.” From Georgia in 1789: “Freedom of the press and trial by jury shall remain inviolate forever.” (Provisions in later state constitutions were much more likely to specifically provide that “abuse” of the freedom could lead to liability, but my sense is that those new provisions were not seen as deliberately shifting from a categorical protection for speech and press to a more limited protection.)

To my knowledge, these provisions were never seen as categorically banning libel and slander law. My sense is that there were nearly no calls, even unsuccessful calls, for reading those provisions that broadly — people did think that the provisions limited the scope of slander and libel law (both civil liability and the law of criminal libel), but not that the provisions categorically forbade such liability. Some saw the freedom of the press as broader and some as narrower. Some saw the freedom of the press as including the freedom to publish what had been earlier seen as “seditious libel” and some saw it as not including this. Some saw it as chiefly forbidding licensing schemes (archetypical “prior restraints”) and perhaps judicial injunctions, while others saw it as also limiting the imposition of civil and criminal liability by juries.

But nearly everyone, as best I can tell, saw “freedom of speech” and “freedom of the press” as providing less than complete constitutional protection for spoken or printed words. And this suggests that the term “freedom of” referred to some understanding that there is a proper scope of such freedom (even if the scope was unsettled in some particulars), rather to unlimited freedom to say or print anything one pleases. It’s much like, if tomorrow a state enacted a law protecting “the freedom to marry,” we probably wouldn’t think that it means the freedom to marry a 10-year-old, or the freedom to marry one’s daughter, or (depending on the circumstances) even the freedom to marry several people at once. “The freedom to marry” would be seen as referring to a broad but not unlimited concept that is less than the freedom to marry anyone one pleases.

Now, to be sure, during and after the controversy over the Sedition Act of 1798, some foes of the Act argued that the First Amendment did bar Congress from any authority to restrict spoken or printed words. But I’m rather skeptical that this was then or is now a sound interpretation of the constitutional text. After all, as I noted, and as some others argued at the time, even seemingly categorical protection for “freedom of the press” in state constitutions wasn’t seen as precluding some restrictions on the press — “freedom of the press” was seen as the freedom for many uses of the press but not all uses. It stands to reason that equally categorical protection for “freedom of the press” in the federal Constitution would likewise provide protection for many uses of the press but not all uses.

And though it’s fair to say that national opinion and legal opinion in the early 1800s came to be against the Sedition Act, my sense is that this stemmed from the general conclusion that seditious libel should not be seen as outside the “freedom of the press”; seditious libel prosecutions even at the state level died down by the 1810s and 1820s. I don’t think it stemmed from a conclusion that Congress indeed lacked all power over speech and press, even when the restriction would be within an enumerated power of Congress (say, the power over D.C., the territories, or the post office) and even when similar state restrictions would be constitutional.

This notion that the freedom of speech and of the press is not unlimited makes sense. A threat to kill the President is literally speech. So is “your money or your life,” said to someone in a dark alley. Assume no weapon is brandished, and the victim escapes, so that no money changes hands; then “your money or your life” is nothing but speech. Attempted fraud is often nothing but speech. The list could go on. There are, I recognize, arguments for barring the government from punishing any of this speech (likely arguments based on the value of super-sharp lines and of trying to eliminate all risk of valuable speech being punished). But if one is to conclude that the government (or even just the federal government, acting within its enumerated powers) is so categorically restrained by the First Amendment, I think it would take some very powerful and clear historical and textual evidence that the First Amendment has indeed been understood this absolutely. As I mentioned, the history cuts against any such absolutist position, and the text — especially given the history — does not actually support that position.

Readers of this blog know that I take a broad view of First Amendment protection. I wish I could just say “the Constitution says it, I believe it, that settles it.” But, for the reasons I give here, I don’t think such an argument would be sound.

That’s the title of an article in The New Republic. England apparently sharply constrains campaign spending (both by candidates and by advocacy groups that are acting independently of the candidates), so unsurprisingly this means dramatically greater power for newspapers. And equally unsurprisingly this is leading the author to call for still more restrictions, this time on newspapers.

To some, this situation may reveal the problem of campaign finance laws: By trying to prevent parties from spending large sums of money and stopping wealthy independent organizations from dominating the campaign, the relative voice of the newspapers is enhanced. But rather than admit that campaign finance laws are futile, one might also conclude that controls on campaign spending should be complemented by attempts to address media power.

The most obvious strategy in this regard is to limit the concentration of the media. Given the unrivalled capacity to engage in unrestrained electoral advocacy that comes with owning a newspaper, it is important that no single person or company be able to dominate the market. Others, by contrast, have called for the regulation of media content. Most of the content regulations being discussed at present are aimed at stopping invasions of privacy and preventing the acquisition of information through hacking and blagging. There have, however, been some calls that newspapers be required to cover political matters with due impartiality, as is required on UK television and radio. But even at the height of anti-Murdoch feeling, such a far-reaching measure seems very unlikely to be pursued....

[W]hile the robust political tradition of the UK press should not be sacrificed, it is time to think about how newspapers can better reflect a wide range of opinions and not give so much power to the proprietor.

Thanks to Paul Sherman (Institute for Justice’s Make No Law blog) for the pointer.

One additional comment about the nature of consensus.  Consensus is sometimes offered as a sign of a respectful political system — one that respects every stakeholder so much that each is given the possibility of a true hold-up.  It would be more accurate to say that consensus only works where the community of stakeholders has sufficient common interests that holdups will be rare, and more often a set a informal process rules — sometimes nearly invisible to outsiders — that structure when it is legitimate to invoke a hold up and when it is not.  In that regard, consensus requires a level of social trust that goes far beyond the requirements of majoritarian democracy.

But there is a flip side to this as well.  Consensus also takes root in circumstances where trust is far lower than it would be in a majoritarian system.  Consensus — as a system of each having a holdup — also develops in circumstances in which participants do not trust what the majority would do, and fear that the majority would help themselves with regard to the minority and that they might also change the process rules so that things cannot (easily or practicably) get changed back.  One vote, one time is the extreme example.  In those circumstances, consensus develops because it gives each stakeholder a veto because they have no trust in the longer run operations of a majoritarian system.

Consensus can reflect, in other words, an extraordinarily high trust society or an extremely low trust one.  Majoritarian processes tend to operate somewhere in the middle — and are both more dynamic for that reason, but also, strikingly, more fragile.

(Update:  Actually, the correct answer might well be ... a majoritarian democracy is the privilege of a very high trust society but which has at least the possibility of sharply different policies that can only be settled by a majoritarian process leading down one path or the other, but in which high trust enables the currently losing side to hold out the possibility of, if not total revision, serious revision down the road.  The combination of high trust and possibly high dissensus around policy is potentially unstable and hence fragile.  Cue Edmund Burke.)

Watching the current negotiations unfold, I remain puzzled by a couple of things.

First, what would happen — purely hypothetically, obviously — if the Republicans suddenly announced that they would support raising the debt ceiling to a trillion trillion dollars — infinity.  The immediate effect is to remove the (contested) matter of default from the table.  One might almost say, stretching concepts a bit, that the liquidity problem had been removed from the discussion.  So the rating agencies should now go away?  But isn’t the far more important issue one of sovereign solvency, not liquidity?  The immediate pressure of a default, if a default were assumed to be truly at risk, is gone.  Okay.  So then the question becomes not the default, but the debt.  The rating agencies, and the markets, now have to focus on the longer term, but less and less long term, question, is the debt sustainable?

Another way to put this, I suppose, is that Democrats are arguing about liquidity; Republicans about solvency.  I understand that the debt ceiling, or my hypothetical removal of it, creates many “signaling” issues both to the other political party as well as to rating agencies and markets.  The assumption has been that Republicans holding tough on the debt ceiling is signaling behavior about their seriousness in addressing the solvency question.  If that’s so, then dropping the debt ceiling issue is interpreted as surrender.

But it is possible that the signal sent by raising the ceiling effectively to infinity, not incrementally and in amounts that take the debt ceiling as an important barrier, is to signal that it is no longer at issue.  No longer at issue, that is, in the sense that the Republicans are brushing aside the liquidity question in order to force the only parties that the Democrats will care about — markets and rating agencies — to engage on the question of solvency.  The signal, presumably, is that the attempt by Democrats to avoid the solvency question by using the pressure of the liquidity-default trigger has been called (from the Republicans’ view) as a bluff, and now the Democrats face the markets and the rating agencies not through the Republicans, but directly and unbuffered, and on the question of the deficits and the debt, not the ceiling.

What would be the effect of my hypothetical?

Second, I don’t understand the F**k Washington rhetoric.  I mean, sure, at 40,000 feet, everyone can say that Washington is the problem.  I get that; I agree on most things, but not specially on this issue.  Sure, this “negotiation” reflects the basic breakdown of Congress — but it also reflects that even a more functional Congress would still break down into bitter disagreement on this issue.  Come down to 20,000 feet, in other words, and the happy consensus breaks down into a near perfect dissensus because people genuinely disagree.  The call to come together is illusory, because there is a genuinely deep fault line around fundamental economic policy.

I call Washington all f**ked up and mean, because no rational person would seriously entertain default.  You call Washington all f**ked up and mean, because no rational person would agree to these kinds of deficits.  We think — in the current twitter-talk of a pox on both their DC houses — Washington is a mess because we can’t find a compromise.  The truth is, however, we don’t actually think there is much room to compromise and, given that our principles on this represent a fairly sizable difference in world view, that’s probably right.  The structural problem of Washington is that everyone has a hold-up; “let’s vote and majority policy wins” doesn’t work because we’ve allowed a consensus system informally to take hold, rather than a majoritarian one (albeit one revisable at least in part by a future majority).

Third, although the negotiations seem to appear amenable to compromise and splitting of differences — it’s just how much of this and how much of that — this is deceptive.  The structure of the game is closer to chicken, with sharp downside discontinuities — train wrecks — built into the nature of the game.  Meaning, if you are the Republicans, your only ability to address the long term deficit issue is by using the debt ceiling as hostage; you have some room to manuever as to when increases are triggered and how much, but it is fundamentally your hostage.  If you are the Democrats, by contrast, then you have an incentive to raise the stakes around the hostage on the downside as much as possible — no Social Security check for Grandma — and hold your own hostage on tax increases.  Again, I don’t think it’s simply bad negotiating on each side that has led to so much brinkmanship — apparently incremental and continuous issues, presumably favorable to compromise, are actually much more hostage-like, not surrenderable in parts, as it were.  It seems to me much more like a game of chicken, and the sides have not been irrational, from their own perspectives, in keeping their guns to their hostages’ foreheads.

But perhaps I am wrong about the nature of the game at issue.  If you want, explain the game theory of this particular negotiation.  If you want to comment, please remain with these issues; I don’t think there’s much point in rants on why one side or the other is right or wrong.

Update: I see that Professor David Barash writes in the NYT today on the game theory and behavioral gaming aspects of the negotiations.  Barash describes this as a game of chicken, and goes on to add the strategy of the Rogue Elephant — the “craziest person in the room controls the agenda.”  I think it’s more complicated — a game of chicken combined with a version of hostage-taking.  There’s nothing inconsistent about that, any more than there is of playing chicken in a car in real life, with a hostage in the front seat.  The bigger problem for game theory here is that the games are far too complicated, involving so many players with altogether different agendas, and quite different stakes and standards of winning and losing.  However, Barash’s opinion essay is a very good read.

Marty Lederman (Balkinization) blogs about an indictment that raises very important First Amendment issues. Count 1 charges defendant with urging terrorist activity — that’s the solicitation vs. advocacy question. Count 2 charges defendant with linking to bombmaking instructions, with the intent that they be used for criminal purposes (an issue I discuss, among others, in my Crime-Facilitating Speech article). I read the indictment myself, and I think Marty’s analysis is an excellent explanation of the contested questions. An excerpt:

Is there a constitutional right to make posts to the Internet encouraging terrorism? To link to a bombmaking manual in hopes that some reader will use it for unlawful purposes?

The Department of Justice yesterday announced an indictment raising both of these important Free Speech Clause questions.

A grand jury in the Eastern District of Virginia has indicted 22-year-old Emerson Winfield Begolly, of New Bethlehem, Pa. — a former Penn State student and son of a Penn State instructor — for “soliciting” acts of terrorism on the Internet and for linking to bombmaking instructions online. U.S. Attorney Neil MacBride explains that Begolly is alleged of “repeatedly using the Internet to promote violent jihad against Americans.”

The indictment alleges two offenses: Count One alleges that Begolly repeatedly made posts to the Ansar al-Mujahidden Forum, an “Islamic extremist web forum used by its members to translate, promote and distribute jihadist propaganda,” in which he “suggested” the use of explosives against targets such as police stations, post offices, synagogues, military facilities, train lines, bridges, cell phone towers and water plants, and implored his readers that “Allah commands us to terrorize the [average American].” (There are further examples to like effect in the indictment.) These posts are alleged to have been unlawful “solicitations” of arson, terrorism and other offenses, in violation of 18 U.S.C. 373(a).

Count Two alleges that Begolly posted a link to a document entitled “The Explosives Course,” allegedly written by one of al Qaeda’s former top chemical and biological weapons experts. “The Explosives Course” contains information on, inter alia, how to manufacture explosives. The indictment alleges that in providing the link to the Course, Begolly thereby “distributed” information on the use of explosives “with the intent that the information be used for, and in furtherance of,” federal crimes of violence, in violation of 18 U.S.C. 842(p)(2)(A), which makes it unlawful to, inter alia, “distribute by any means information pertaining to, in whole or in part, the manufacture or use of an explosive, destructive device, or weapon of mass destruction, with the intent that the teaching, demonstration, or information be used for, or in furtherance of, an activity that constitutes a Federal crime of violence.”

Each count raises important, unresolved First Amendment questions.

Continue reading ‘Unprotected Solicitation of Crime or Protected Advocacy of Crime?’ »

In State v. Epling (Utah. Ct. App. July 21, 2011), defendant pleaded no contest to three charges of sexually abusing his stepson, and was sentenced to three consecutive 1-to-15-year prison terms. Here’s one passage that struck me as particularly interesting:

Epling also objects to the trial court’s expressed concern about his involvement with “pornography.” According to Epling, because this conduct was not illegal, i.e., there was no allegation that he was involved with pornography involving children, it was protected by the First Amendment of the United States Constitution. [Footnote: The trial court’s comments seem to be based upon the psychosexual report, which indicates that Epling self-reported viewing Playboy magazines and programs such as Girls Gone Wild.] Therefore, he contends that the trial court could not properly consider it as a factor supporting its decision to impose consecutive sentences. However, there is nothing that prevents a trial court from considering a defendant’s legal activities in making a sentencing determination. See, e.g., State v. Alfatlawi, 2006 UT App 511, ¶ 51, 153 P.3d 804 (upholding a consecutive sentencing decision where the trial court determined that the defendant’s bad attitude, as exhibited by the defendant’s diatribe of threats and obscenities, weighed in favor of consecutive sentences); cf. State v. Montoya, 929 P.2d 356, 360 (Utah Ct.App.1996) (upholding consecutive sentences where the trial court relied on an assessment that the defendant was “pessimistic, apathetic, emotionally inhibited and controlled, maladaptive under stress, assaultive, resentful, hostile, and aggressive”). It was within the trial court’s discretion to consider such evidence.

I wonder whether that’s right. Indeed, a sentencer can often use evidence of a person’s constitutionally protected speech and association during sentencing. But as Dawson v. Delaware (1992) holds, there are limits to that:

Continue reading ‘Defendant’s Looking at Playboy and Girls Gone Wild as Sentencing Factor’ »

The Third Circuit, sitting en banc, has split 8–6 on this in today’s United States v. Mitchell; the majority concludes that the law authorizing this practice does not violate the Fourth Amendment. The Ninth Circuit will soon consider en banc a related question, which is whether the government may collect DNA as a condition of releasing someone on bail.

Note that this has to do with testing in the absence of probable cause (or even a reasonable suspicion) that the DNA would be evidence related to a crime. Thanks to How Appealing for the pointer.

With the first week of law school just a few weeks away for incoming first-year students, I thought I would repost a link to my short essay, How to Read a Legal Opinion: A Guide for New Law Students. The abstract:

This essay is designed to help new law students prepare for the first few weeks of class. It explains what judicial opinions are, how they are structured, and what law students should look for when reading them.

The essay can be recopied and reposted, so feel free to share it (and professors, feel free to distribute to students if you like — no need to ask for permission).

Here’s an interesting article that sheds light on a lot of blogospheric reaction to new legal cases: Dan Simon & Nicholas Scurich, Lay Judgments of Judicial Decision-Making, forthcoming in the Journal of Empirical Legal Studies. The abstract:

This exploratory study examined lay people’s evaluations of judicial decision-making, specifically of the judicial decision-making process and the judiciary’s legitimacy. Seven hundred participants were presented with three judicial decisions, which were portrayed as following on the heels of solid and appropriate legal procedure. Each decision was accompanied by one of four types of reasoning. Participants were asked to evaluate the acceptability of the decisions, focusing on the manner in which they were made and the legitimacy of the decision-maker, regardless of their outcomes. The study yielded four findings. First, lay people’s judgments were highly contingent on the outcome of the judges’ decisions. Consistent with the theory of motivated reasoning, participants found the decisions highly acceptable when they agreed with the judges’ decision, but deemed them relatively unacceptable when they disagreed with them. Second, participants were indifferent to the modes of reasoning when they agreed with the outcomes of the decisions, but were differentially sensitive to the modes of reasoning when the judges’ decisions frustrated their preferred outcomes. Third, when participants were sensitive to the modes of reasoning, they gave higher ratings of acceptability to decisions that openly admitted to good reasons on both sides of the case as compared with decisions accompanied by reasons that supported one side of the case exclusively. Giving no reasons at all was found to be more acceptable than giving a single, curt reason. Fourth, the findings replicated the coherence effect. Implications for the legitimacy of the judiciary are discussed.

Thanks to Helen Norton for the link.

I spent yesterday afternoon and early evening in Yellowstone with my family and the animals were out in force. We saw dozens of buffalo and elk, of course, but also a half-dozen pronghorn, and (of critical importance) two young black bears, one by the petrified tree turnoff and the other by Roosevelt Junction. Both were quite close, but neither made it easy to get a mug shot. Oh well.

As a bonus, we also saw what was either a lone wolf or (more likely) a large coyote on the Blacktail Plateau, but we weren’t quick enough with the camera to get a good shot.

The Nation (Pakistan) reports:

The Senate Friday severely condemned the hosting of a gay pride ceremony by US embassy in Pakistan last month and sent the matter to the Senate Standing Committee on Foreign Affairs for taking any possible action.

The committee will see whether the parliament had the jurisdiction to debate the issue in any of its houses and what kind of action could be initiated against the organisers of the gay, lesbian, bisexual and transgender (GLBT) function that was held in the US embassy in Islamabad....

The lawmakers condemned the statement of the embassy that announced support for such persons in Pakistan, saying that GLBT activities were against the basic principles of Islam and the constitution of the Islamic Republic of Pakistan, and hence could not be allowed....

Here’s the U.S. Embassy’s press release on the subject:

Embassy Islamabad Hosts GLBT Pride Celebration

June 26, 2011

Ambassador Richard E. Hoagland greets guests at GLBT Pride celebration on June 26, 2011
Chargé d’Affaires Ambassador Richard Hoagland and members of Gays and Lesbians in Foreign Affairs Agencies (GLIFFA) hosted Embassy Islamabad’s first ever gay, lesbian, bisexual, and transgender (GLBT) Pride Celebration on June 26. This gathering demonstrated continued U.S. Embassy support for human rights, including LGBT rights, inPakistan at a time when those rights are increasingly under attack from extremist elements throughout Pakistani society.

Over 75 people attended including Mission Officers, U.S. military representatives, foreign diplomats, and leaders of Pakistani LGBT advocacy groups. In formal remarks, the Chargé underscored President Obama’s May 31, 2011 GLBT Pride Proclamation that, “we rededicate ourselves to the pursuit of equal rights for all, regardless of sexual orientation or gender identity.

Addressing the Pakistani LGBT activists, the Chargé, while acknowledging that the struggle for GLBT rights in Pakistan is still beginning, said “I want to be clear: the U.S. Embassy is here to support you and stand by your side every step of the way.”

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

NY Times has a Room for Debate Feature, “The Case Against Law School.”  Several interesting entries and multiple criticisms of the operation of law schools today, even by defenders of the current general model.