Date based archive
The death of Watergate special prosecutor Archibald Cox occasions a post from Kieran Healy on how Weberian theory of authority and bureaucracy is illustrated in the drama of the Saturday Night Massacre.
On October 22, 1973, Nixon demanded that Attorney General Elliott Richardson fire Cox (Nixon himself did not have the authority to discharge a special prosecutor, as that office is appointed by Congress and overseen by the Justice Department). Richardson refused, as did his deputy William Ruckelshaus. Both were fired/ forced to resign by Nixon.
Next in the line of succession was Solicitor General Robert H. Bork. Bork fired Cox, and the office of independent prosecutor was abolished, with its functions turned over to the executive-controlled DOJ.
I'm fairly sure that I learned about all this in high school government class, where I was taught by a libertarian-leaning Reagan fan. This teacher's rationale for Bork's action was that someone had to do it -- that, had Bork also refused to get rid of Cox, Nixon was ready to keep on firing people down the chain of command at Justice until Cox was gone.
In this view, little was to be gained by Bork's following Richardson's and Ruckelshaus's example. Their exits from the Administration already demonstrated that Nixon was a loon, had that not been sufficiently clear heretofore. As Cox said, "Whether ours shall be a government of laws and not of men is now for Congress"; with Nixon running roughshod over his own DOJ, Congress would have to be the one to stop the madness.
Healy seems to have a less charitable perception of Bork. He implies by his contrast of Bork with Richardson that the former lacked the "great personal integrity" of the latter, and that Bork thought Nixon had the authority to block an investigation of himself. Richardson, in Healy's description, typifies someone who believes in legal-rational authority (government of laws); Bork someone who believes in traditional authority (government of men).
Though I have no fondness for Bork, I do think that my government teacher's defense of Bork's choice has some merit. There simply wasn't any way that a member of the executive branch who was under Nixon's command could carry out the Watergate investigation. The appointment of an indepedent prosecutor whom Nixon couldn't fire directly was an attempt to get around this problem, but it ultimately was futile. The other two branches of government -- the Supreme Court in its ruling that Nixon had to turn over the tapes, and Congress in its hearings -- had to be the ones to take down the Chief Executive.
Today in History (1902) - The last Afrikaner resistance forces sign a peace treaty with the British at Pretoria, ending the Second Boer War, and ensuring British control of South Africa. Eight years later, the Union of South Africa is created; it becomes the Republic of South Africa on the same day in 1961.
"John," a 14-year old, used a series of false identities in an Internet chatroom to convince a 16-year-old friend, "Mark," that Mark could become a member of the British secret service by stabbing John to death. Mark fortunately was an ineffectual hitman, and John survived the attack that he had planned.
John pleaded guilty to incitement to murder and perverting the course of justice, for which he received a three-year supervision order. Mark was given a two-year supervision order for attempted murder.
Judge David Maddison explained the abnormally light (relative to the usual punishment for such crimes) sentences thus: "These could not be described as any normal circumstances." And the article concludes,
The bleakly serious nature of the case is expected to lead to calls for tighter monitoring of internet chatrooms. Belinda Sproston, of the parental control software firm CyberPatrol, said: "The conversations that these boys were having would not have been allowed in a monitored chatroom."This strikes me as a poor response to this bizarre incident.
First, both of the young men involved, but especially Mark, deserve heavier sentences. He thought that he was committing murder, not assisted suicide, when he began to stab John, and his punishment ought to fit more closely with his intent.
I would not recommend putting Mark in an adult prison -- clearly, he is easy and suggestible prey -- but he needs more than a supervision order, which is the British equivalent of probation. Juvenile detention and massive amounts of psychological therapy hopefully would provide rehabilitation and punishment to the offender, as well as being a more emphatic deterrent to other would-be James Bonds.
The expected calls for tighter monitoring of Internet chatrooms sound likely to be demands for mandatory government regulation, which is not the solution to cases such as these. Frankly, Mark sounds gullible enough to have fallen for, say, a series of notes in different inks and handwritings that transmitted a similar message. Technology made John's plan much easier, but it did not create the plan nor fulfill it.
John's and Mark's parents, not their government, ought to be the ones invading their privacy and ensuring their safety and good behavior. Had John's parents been more aware of their son's suicidal state of mind, or Mark's parents of his frequent communication with people who incited him to murder, the assault could not have happened.
Today in History (1868) - The first national commemoration of lives lost in war takes place at Arlington Cemetery, after Commander in Chief John A. Logan of the Grand Army of the Republic issued General Order Number 11 designating May 30 as a memorial day.
(Apologies for the skewed Latin.)
The news that Pat Tillman was killed in a "friendly fire" incident has occasioned at least one person to wonder, "Does this mean he has to return the medals?" Michael Ascot's crude and speculative assessment of Tillman otherwise rates little more interest than similar remarks have, but his derisively-intended question about Tillman's post-humous promotion, Silver Star and Purple Heart may deserve serious exploration.
Contrary to Ascot's views, the military appears to honor people not on a wholly consequentialist basis but more for their intent. If one rushed back into enemy fire to rescue a wounded comrade, even if he ended up dying -- that is, even if the utilitarian consequences of the heroic action turn out to be useless -- the medal would be given on the basis of one's motive of self-sacrifice. Thus Tillman, who reasonably thought that he was facing enemy fire, still deserves his honors even if his assumption turned out to be erroneous.
A question for another time: What motivates the military to give posthumous honors to highly visible soldiers?
Today the National World War II Memorial in Washington, D.C. will be formally dedicated.
Someone came up with a better name than "Blogger Survivor" for our little contest. Much better. I'm stealing it.
The other day, Will Baude quoted a series of interesting passages from Barnes v. Glen Theatre, among which this bit from Scalia reminded me that ole Antonin could really use a class in moral philosophy:
Scalia, as we know from Lawrence and elsewhere, has been quite the defender of "morals legislation." It's not uncommon for people to distinguish between laws justified by the harmful consequences they prevent, and laws that simply target behavior that is "immoral," but this distinction is good for casual references, not legal or metaethical reasoning. Action is "immoral" if and only if it is action that ought not be taken. (Yes, in case you're wondering, I'd consider principles of politeness to be moral principles--rudeness being immoral--because rudeness differs from wickedness in degree, not in kind.)
The reasons we come up with to explain why something is immoral might differ, but whether they are strictly economic, or strictly based on scripture, they all advocate a state of affairs that ought to be so. To defend laws merely because they prohibit conduct thought to be "immoral" reveals more about the law's lack of justification than anything. In the philosophical sense, pretty much all laws are "morally" motivated. We should approve them not for merely proclaiming "immoral!" but for the particular reasons advanced that some conduct is immoral. I'm not arguing that laws without any consequentialist justification are without justification altogether (that's often false), or that laws without any justification must be unconstitutional, but simply that the phrase "morals legislation" elides the critical questions.
It occurs to me now that my second problem with this passage from Scalia needs little explication: decide for yourself whether suicide and drug use hurt people, or whether citing animal cruelty does any work for Scalia's argument, or instead reveals a more basic problem in framing the issue as one of human harm preventing laws vs. morals legislation.
Today in History (1935) – SCOTUS declares the National Industrial Recovery Act to be unconstitutional in the case A.L.A. Schechter Poultry Corp. v. United States (295 U.S. 495).
Professor Volokh says
but omits a crucial premise: having a married sibling is guilt by association.
Today in History (1972) – The United States and the Soviet Union sign the Anti-Ballistic Missile Treaty. On June 13, 2002, six months after giving the required notice of intent, the U.S. withdrew from the treaty in order to develop a National Missile Defense system.
While normally the privacy of the friends and family of the famous should be as sacrosanct as our own, said friends and family may take actions that strip away their immunity. Willingly appearing on television, for example, constitutes a step toward becoming famous oneself, and of course once one is voluntarily famous -- I am here excluding unfortunates like Richard Jewel who had infamy thrust upon them -- one's privacy soon becomes a distant memory.
The standard lately applied to those in the president's private life appears to be that while the First Lady is a fair target, children should be left alone. On its face, it is a somewhat arbitrary standard; technically, aren't children a more accurate reflection of the parents than the spouse is? In practice, however, the wives of presidential candidates become diligent campaigners themselves, thus willingly putting themselves in the glare of the searchlight on their husbands and volunteering for some degree of scrutiny and criticism.
WWJD (What Would Jenna Drink?) jokes notwithstanding, with regard to the current First Family, this rule appears to have been followed by most journalists with pretensions to seriousness. Jenna and Barbara Bush have been permitted to enjoy their college years in relative peace, and as far as I know, have not been pestered by reporters who want to know their opinions on Dad's missing WMDs.
But that may change this year, despite the pleas of White House spokesman Scott McClellan. The Reuters lede captures it perfectly: "The White House asked the media on Monday to 'show respect" for President Bush's twin daughters as they emerge from private life as students to work for their father's re-election campaign.'
"Emerge from private life"; that phrase accurately encapsulates why the press may be tempted to alter their treatment of the Misses Bush. In working for their father's re-election campaign -- presumably in front of crowds, and not just blowing up festive balloons -- they are volunteering to become more public people than they were as students. Therefore, one might logically apply a different standard.
After all, to create family rifts by trying to get a quote from a Bush daughter that would dissent from Administration policy while she was essentially a private citizen would be extremely tacky. Exposing ideological rifts within campaigns, on the other hand, strikes me as within the bounds of polite journalism. I don't know how closely Al Gore's children hewed to his policy line, but during their public appearances on his behalf in 2000, it certainly would have been legitimate to query them about it. People who volunteer for campaigns should not do so lightly, even if the candidate in question is a parent.
Today in History (1925) – John T. Scopes is indicted for teaching Darwin's theory of evolution, and the National Forensics League is founded.
We know what you've been thinking: "De Novo is great with four, but imagine how much more awesome it would be with five! Up to 25% more awesome, I'd bet!" We agree, and we want to revolutionize the blogosphere at the same time with the world's first (please don't tell us if we're not) elimination-style blog-contributor search and competition. Doesn't matter if you've got a weblog or you don't, if you've ever written anything or you haven't, if you're real or if you're fake -- send us an e-mail and let us know you want to be considered for Blogger Survivor. Can you Outwit, Outlast, and Outblog the competition?
Right now we're looking for people interested in joining us for the summer, to make this site even better, and to add a new perspective, shake things up, and get us all extra-excited about what we're doing on here. Two weeks from now, after we've assembled a top-notch set of contestants, we'll begin the competition. Each day, the contestants will have to fulfill a certain blog-related task -- blog about something you did yesterday; write a post using all 26 letters of the alphabet; find the most interesting newspaper article that no one's read -- or compete for immunity by earning the most comments, the most links, or the fewest unambigously negative reactions from our readers -- and one by one the ranks will thin until there's only one blogger left sitting at his desk posting to De Novo. And he or she will be a part of the team this summer -- and maybe longer, if it works out -- helping to make your day marginally more interesting, and this weblog achieve new heights of weblogigoodness.
How do you qualify? If you're interested in the kinds of stuff we write about -- so, if you're reading, basically, or if you can make us think you've been -- then we want to hear from you.
Deadline for contestants: June 1, but the sooner the better
After squeezing my brain for a week, I have been able to devise only the paltriest responses to the May 16 Style Invitational, "Set Us Right." So I urge our more conservative -- or at least, more creative -- De Novo readers to take a last-minute shot at the contest.
What is the difference between JFK (1960) and JFK (2004)?See here for all the rules.
John F. Kennedy had no problem with charisma, and a bad spine. John F. Kerry has a bad problem with charisma, and no spine. [...]
This week's contest, suggested by Mark Cackler of Falls Church: See if you can give us some Fair and Balance -- send us conservative-leaning humor in any of the following genres:
(1) Knock-knock jokes; (2) limericks; (3) "how can you tell" riddles; (4) "what's the difference" riddles; (5) four-line rhyming poems.
Jokes about Bill Clinton's sex life do not qualify; they transcend ideological barriers. And needless to say, joke plagiarists will be abused and humiliated. [...]
Send your entries via fax to 202-334-4312 or by e-mail to firstname.lastname@example.org. Deadline is Monday, May 24.
Today in History (1988) - The controversial British law Section 28, prohibiting local authorities from "intentionally promoting homosexuality or its acceptability as a pretended family relationship" in public schools, goes into effect. The repeal of Section 28 became effective November 18, 2003.
Today in History (1992) - Italian Anti-Mafia Giovanni Falcone killed with his wife (also a judge) and bodyguards in Capaci, on the motorway between Palermo International Airport and Palermo. The car in which he travelled was exploded in the air by a tremendous quantity of explosive that had been placed inside the asphalt.
Today in History (1807) - Sufficient evidence is presented to a grand jury to indict former Vice President of the United States Aaron Burr for treason. One hundred ninety years later, Kelly Flinn, U.S. Air Force's first female bomber pilot certified for combat, accepts a general discharge in order to avoid a court martial.
As if it were hard enough to make practicing law fun, the system is making it harder:
Other bad behavior? Involving a fire hydrant? I wouldn't give the guy a scooby snack, but $8500 bucks is pretty harsh.
(Link from How Appealing)
The Bush Administration is not only committed to stopping gay and lesbian couples from marrying. The Washington Times has this headline in this morning's edition: "Gays barred from sperm banks."
Unsurprisingly, that's a bit overstated (hence my attempt at going even further in the headline), but here's the lead:
The Food and Drug Administration yesterday announced a new rule that would prevent men who have engaged in homosexual sex within the past five years from making anonymous donations to sperm banks.
The explanation is as weak as one would expect:
"I do understand their concern, and the desire of everyone to be donors," Dr. [Jesse Goodman, the FDA's director of the Center for Biologics, Evaluation and Research,] said. "With regard to men who have had sex with men, the issue really is the higher incidence of HIV in that population."
One would think all body fluid, tissue, and organ donations should be tested for HIV and other such diseases (as they apparently will be, under the rule) -- making such an exclusionary policy unnecessary. The Administration apparently thinks otherwise. In the Comments section of the Final Rule, it defines the "Donor-Eligibility" rule on page 46 in response to Comment 26:
A donor is "ineligible" if either screening or testing indicates the presence of a communicable disease or risk factor for a communicable disease.
The FDA calls this a "comprehensive, risk-based approach" in its news release about the regulations.
The Final Rule materials briefly discuss this again -- citing a cost savings because those initially screened out as ineligible needn't later have a donation tested -- in the response to Comment 27 on pages 51-52. So, a "higher incidence of HIV" is being used to justify a governmental restriction that, similar to the Texas "Homosexual Conduct" law struck down by the Supreme Court in Lawrence v. Texas, disproportionately restricts gay men’s liberty. (I realize this is not a criminal law at issue, but the criminal element did not seem to figure largely into the analysis of the Lawrence Court so much as the liberty and its restriction-caused infringement.) Interestingly, here it is – using the Lawrence Court’s reasoning – gay men’s reproductive liberty that would be infringed by the government. This is being done even where all those not "screened out" still have their donated sperm tested for HIV.
To put it bluntly, all sexually active homosexuals and bisexuals are shut out of the donor pool while abstinent homosexuals and bisexuals’ blood and all heterosexual donors’ blood will be tested for HIV.
If there is a testing provision, did the Administration provide any proof that enough of the sperm donated from those who would be ineligible through the "homosexual-sex prohibition" screening contains HIV to justify a blanket restriction? Or is this an irrational restriction?
A final note: In response to Comment 12 on page 30, the Final Rule materials make clear that "there are threee categories of reproductive donors, subject to three different sets of requirements listed as follows: (1) The anonymous donor, to whom all the donor-eligibility requirements apply; (2) the directed reproductive donor, whose reproductive cells and tissue may be used even if the donor is determined ineligible; and (3) the sexually intimate partner, for whom testing and screening are not required . . . ."
Since reproduction cannot occur between lesbian or gay couples, No. 3 is obviously out. For some reason, however, No. 2 still requires the screening. If the directed reproductive donor is screened out as a sexually active homosexual, it would seem to me that he would then not be tested for HIV according to the cost-saving response discussed above. So, directed reproductive donors who are sexually active homosexuals won't be tested, but can still donate? This seems to undercut the "public health" reasons cited in the materials to justify the strict screening prohibition in No. 1.
(The Washington Post misses the screening completely, discussing only the testing portion in the second item of today's "Washington in Brief." The NY Times, however, has it: F.D.A. to Limit Sperm Donors.)
Today in History (1961) - Alabama Governor John Patterson declares martial law in an attempt to restore order after race riots break out. Thirty years later, former Indian PM Rajiv Gandhi is assassinated by a female suicide bomber. Seven years after that, on the same day in 1998, an Oregon student kills two fellow students and his parents; in Miami, Florida, five abortion clinics are hit by a butyric acid attacker.
The Uncivil Litigator should be feeling quite justified: Attorney Brandon Mayfield, arrested two weeks ago on the basis of a match with fingerprints found at the Madrid bombing, was freed today after Spanish police said that fingerprints on a bag containing detonators like those used in the bombing were not his after all. Spanish police said that the fingerprints actually belonged to Algerian Ouhnane Daoud, who remains at large.
From Voice of America: Citing post 9/11 concerns about the passage of undocumented persons into the United States, Americans along the U.S.-Mexico border have organized to check the flow.
Some ranchers have armed themselves and detained illegal immigrants on their land. The ranchers say the migrants have damaged their property.
Among other groups on the prowl are private citizens organized under the name "Civil Homeland Defense," a group based in the Old West mining town of Tombstone.
As generally happens with vigilantes, these groups are not receiving support from the government. The chief of the Tucson Border Patrol district worries about having them detain people, while agents in the field are concerned about the safety of private citizens who attempt to tangle with potentially dangerous border-crossers.
Chris Simcox, who started Tombstone's Civil Homeland Defense, was arrested last year for carrying a firearm on national park land, convicted on two federal misdemeanor counts and now is barred for carrying a gun during his two-year probation. The experience seems to have turned Simcox, editor of Tombstone's weekly newspaper into a bit of a tinfoil-hat man.
Mr. Simcox claims the arresting officers targeted him because of his political activism and he says he now sees the government as a possible enemy rather than as an ally in the fight to secure the nation's borders.I don't deny that some arrests may be politically motivated, but to regard the U.S. government as a "possible enemy" in border security borders on idiocy.
The legal issue I see in this story is whether Americans, not officially deputized by federal, state or local government, can give themselves the power to take action against citizens of another country when those aliens are breaking U.S. law.
Simcox maintains that his group merely identifies problem areas and notifies the authorities so official law enforcement can do the apprehensions, but the Civil Homeland Defense is likely to cross over from neighborhood watchdog to vigilante. By carrying firearms, they enable themselves to use the threat of force to keep migrants from trying to flee, and such a threat is viewed by some as being properly the prerogative of government. This is particularly so for an organized threat of force, in which the people brandishing firearms are not acting in direct self-defense, but instead are seeking out law-breakers.
The ranchers who detain illegal immigrants have a better claim to the self-defense argument: just as a homeowner with a firearm might brandish it to keep a trespasser or burglar from fleeing, ranchers arguably have the same power over their vast properties. On the other hand, I suspect this is selective enforcement of property rights; people not perceived by the ranchers as illegals are probably permitted to move about without fear of being held at gunpoint.
A common complaint against the Bush Administration's handling of post-9/11 America is that the president hasn't asked for much sacrifice. Aside from having to send our men and women of the armed forces overseas, Americans otherwise can be fairly impervious to the demands of war.
Through deficit spending, Bush even has avoided forcing us to pay for military action (the payment will come due after he has left office). Congress passed tax cuts during what is supposed to be a time of war -- possibly a first in U.S. history. We haven't had to stop driving gas-guzzlers, even though decreasing our dependence on Middle East oil could free us to demand more from countries like Saudi Arabia.
We haven't even seen a substantive initiative like Kennedy's Peace Corps, in which large numbers of people voluntarily give up the comforts of American life in order to improve the condition of impoverished nations. Aside from driving a hybrid vehicle -- which I would have done even before 9/11 -- I haven't contributed anything to helping us win the war on terrorism. And while some might be embarrassed by such an admission, I frankly don't see what I should be doing.
People like Chris Simcox, on the other hand, are shouldering some of the burden of maintaining the security of our borders, which is surely a large element in preventing future terrorist attacks on American soil. Yet the VOA headline and the title of this post label them with the negative term "vigilante," because the government doesn't want their help. What's a patriotic man to do?
Today in SCOTUS History (1895) - In Pollock v. Farmers' Loan & Trust Co., rules against the establishment of the first Federal income tax as an unconstitutional tax, necessitating the 16th Amendment.
From an Associated Press report:
On the issue of Iraqi inmate abuse at the hands of U.S. military personnel, Kennedy said the Iraqi judges "innately knew, instinctively knew how concerned we were. They also knew that we can't really comment because we are actually in the legal system where we have review of military court-martials. They also knew we represent a process that is open, that recognizes that human fallibility is the reason we have democracy."(Emphasis added, link via Althouse)
Justice Kennedy appears to be working off the happy-happy-joy-joy definition of "democracy," in which the particular checks and balances, Constitution and republican form of government that originated in American liberal democracy are embedded into majority rule. This is troubling, because as we strive to spread democracy throughout the world, we must be aware of its limitations and the necessity of constraining it.
The Founders, of course, saw human fallibility as precisely the reason to limit the reach of majority rule. Kennedy himself, as a justice of the United States Supreme Court, is a member of one of the most undemocratic institutions in the nation (the "kritarchy," so to speak). An unelected federal judiciary was mandated by the Founders because they feared the passions of the mob, and although their fear was driven partially by elitism, it nonetheless has proven to be wise.
History before 1789, and even more after it, has shown that people are delighted to oppress one another whenever possible, and easily do so under the banner of majority rule. Hitler initially came to power through elections; at first, Communists could plausibly claim the support of the Russian people. Authoritarian regimes still claim to have elections, however farcical: China, Cuba and Saddam Hussein's Iraq all hold/ held them.
What Kennedy likely meant by saying "human fallibility is the reason we have democracy" is that the American model of government recognizes the truth in the cliche "Power corrupts." It therefore attempts to distribute power amongst different branches and levels of governments and between the people and their representatives. Congress holds hearings on the executive branch's responsibility for the military's conduct; the Supreme Court will rule on whether the president can continue to detain "enemy combatants" without trial at Guantanamo Bay.
My concern about Kennedy's blithe use of the term "democracy" stems from the associations Americans put on the word, and reports about what it means outside the United States. As Fred Siegel notes, "Most Americans assume that democracy, liberalism, and capitalism are not only a natural trio but mutually reinforcing. [...] But historically -- and in much of the world today -- these elements are in tension with one another."
Yale Law professor Amy Chua's book World On Fire: How Exporting Free Market Democracy Breeds Ethnic Hatred and Global Instability specifically highlights the tension between democracy and capitalism, but she recognizes the tension between liberalism and democracy as well. Chua concludes a recent essay on Iraq thus: "[E]ven today, democracy in the West means much more than unrestrained majority rule. It includes protection for minorities and property, constitutionalism and human rights. A lot more is needed than just shipping out ballot boxes."
Moreover, in some regions, particularly the Middle East, democracy frequently carries a connotation of excessive permissibility. Some members of traditionalist societies fear what government by The People will look like, and are wary of American democracy because in their minds it is somehow tied to crass American culture. Their strongest image association with democracy is not Thomas Jefferson or the Constitution, but Britney Spears.
Still, democracy remains a worthy ideal. But it requires modification, both literally and grammatically; a "liberal democracy," a "constitutional democracy." Mere majority rule, as the Founders knew, often exposes the most fallible side of humans.
This is about as related to the law as Randy Johnson's perfect game is, but here's an interesting New York Times interview with Simon Cowell about American Idol.
Today in History (1848) - Mexico ratifies the Treaty of Guadalupe Hidalgo, thus ending the Mexican-American War and ceding Texas, California and most of Arizona and New Mexico to the United States for $15 million dollars. Seventy three years later, Congress passed the Emergency Quota Act, establishing national quotas on immigration.
A contributor to Open Source Politics finds himself in a dilemma:
I'm moving at last to publish my 270-odd pages of poetry in book form. The reading I've been doing suggests that even non-contractual publication on a mostly politics website will count as prior publication for most journals I might submit to: my own fault, but highly annoying, since OSP has published 7 of my 20 favorite poems, and many others. That's why I've stopped posting new poems until further notice, though I left the ones already there.
Do you consider me or my poems bound by any kind of contract? I've certainly never discussed that with anyone. Do you have any sense of copyright implications for text published on OSP? Sorry it looks like I'll have to stop publishing my poems with you.An OSP board member replied:
One thing I do know is the story of Mathworld. In a nutshell, the creator of Mathworld, after some years of having the site on the net for everyone to see, decided to publish everything that was then there in book form. The contract he signed without reading forbade that, so his publisher sued him for having the site on (IIRC, the publisher couldn't get Mathworld off the net but he did get the creator and the host to pay a substantial sum of money, but here I'm not completely sure).Any De Novo readers know what the rules of free-to-read internet publication becoming pay-to-read print publication are?
Fifty years ago, the U.S. Supreme Court handed down a decision that ruled racial segregation of public schools to be a violation of the U.S. Constitution. Today, following the state Supreme Court's ruling that prohibiting same-sex marriage violated the Massachusetts Constitution, hundreds of gay couples will begin to enjoy the same rights and responsibilities as opposite-sex spouses.
Mr. Non-Volokh on The Day After Tomorrow:
What I find surprising is not the disingenuous political use of this film, but the relative scarcity these days of films designed as political propaganda. It's been my feeling that film is probably the single most powerful means of persuading the public. First, a much larger and more diverse segment of the public watches big box office flicks than reads editorials in major publications. I suspect that audiences for most political journalism are generally better educated, and are more likely to have developed views on a topic. Second, a well wrought film with a political message--by captivating an audience for nearly two hours--is more likely to convey a message viewers can identify with and internalize. Even mediocre films feature sympathetic characters, and when a character's welfare depends on events associated with a political platform, sympathy for the character can be translated to sympathy for the platform. (Of course, I'm oversimplifying here, but consider The Life of David Gale, where what I take to be a highly sympathetic protagonist falls victim to the gross injustice of wrongful conviction and a death sentence. The anti-death penalty message of the movie was quite powerful, I thought.) Finally, films have much greater license to misrepresent and even misstate the facts. Cautious viewers are wise to withhold judgment until facts asserted in a film are confirmed, but somehow I doubt that more than a fraction of movie watchers check up on facts, and even some who do may still be tainted by the film's overall emotional impression.
Despite his rhetorical unfairness, I think Michael Moore found exactly the right medium.
Today in History (1868) - The Senate failed by one vote to convict President Andrew Johnson as it took its first ballot on one of 11 articles of impeachment against him. Today's also the beginning of National Transportation Week!
If you bought shares in Krispy Kreme from Aug. 21, 2003, through May 7, 2004, you could get in on this: After the blow of the low-carb diet trend to their wonderful doughnuts, the company now faces a lawsuit by shareholders who claim that ''the company ineptly accounted for how their bottom line would be affected by the popular low-carbohydrate diets; first by claiming that the trend would have no influence, and then by over-exaggerating the effect of the diet fad."
The shareholders are also complaining that the senior executives named as defendants in the suit disregarded signs that the firm had expanded too quickly, that its wholesale business undermined sales at its retail stores, and that it faced stiff competition from doughnut chain Dunkin' Donuts.
I confess that I'm puzzled by this. At what point do poor business management and overly optimistic predictions become bases for litigation? I understood that the corporate scandals of the last several years mostly centered on dubious behavior like setting up shell corporations and misleading accounting. But no one is accusing Krispy Kreme of these actions; instead, the guilt of the executives appears to be grounded in their having done a less-than-optimal job. This rates litigation?
My ten word review of the new movie, Super Size Me:
Learning experience: Fast food is the devil. Must exercise now!
Today in History (1911) - The United States Supreme Court declares Standard Oil to be an "unreasonable" monopoly under the Sherman Antitrust Act and orders the company to be dissolved.
With Bashman temporarily occupied with real life (best wishes for his wife's speedy recovery), here's a quick rundown of legal news (apologies for those that repeat Bashman posts):
In a 2-1 decision, the U.S. Court of Appeals for the District of Columbia Circuit affirmed a ruling that the National Wrestling Coaches Association and other athletic groups failed to show that the anti-discrimination law known as Title IX directly caused a reduction in men's sports, saying that the parties lacked standing to file the lawsuit, which should be litigated against individual colleges that eliminated men's sports, not the federal government.
The fourth U.S. soldier faces court-martial; the seven charges against Specialist Charles A. Graner Jr. include cruelty and maltreatment of detainees, as well as accusations of adultery and "committing indecent acts."
Judith Scruggs, who was convicted of creating an environment that contributed to her 12-year-old son's suicide after constant bullying at school, received a suspended sentence today. She was placed on probation for five years and also must undergo counseling and perform 100 hours of community service. Legal experts said they believe the conviction, on a risk of injury charge, may have been the first time a parent was found guilty of contributing to her child's suicide.
Scruggs' attorney described her as a single parent who worked long hours to support two children. Her supporters rallied outside the courthouse this morning, with one holding a sign that read "Punish the bullies, not the grieving mothers." She has filed suit against the city and school system, claiming teachers and others did not do enough to protect her son from bullies.
Texas governor Rick Perry granted a pardon on the basis of innocence for Josiah Sutton today, exonerating the Houston man who was imprisoned for more than four years on faulty DNA evidence.
Oklahoma governor Brad Henry commuted the death sentence of a convicted murderer from Mexico to life without parole Thursday in a case in which state and foreign officials alike said the inmate's life should be spared.
Former chief executive Oral Suer will serve 27 months in prison and pay $497,000 in restitution for defrauding the D.C. unit of the United Way.
The Federal Reserve ordered Riggs Bank's parent company Friday to take steps to prevent money laundering after the Treasury Department fined Riggs a record-setting $25 million in connection with a probe into possible links to terrorism financing.
"Nortel Networks, the embattled manufacturer of telephone equipment whose accounting practices are already the subject of a Securities and Exchange investigation, said today that it is the subject of a criminal investigation by the United States attorney's office in Texas."
Pfizer, the world's largest pharmaceutical company, pleaded guilty yesterday and agreed to pay $430 million to resolve criminal and civil charges that it paid doctors to prescribe its epilepsy drug, Neurontin, to patients with ailments that the drug was not federally approved to treat.
Perhaps Matto and I should bow our heads in concession to the District Court's accepting jurisdiction over the federal suit to enjoin enforcement of Goodridge, since we had both concluded that there was no federal jurisdiction. While our predictions (if they were, in fact, predictions) were incorrect, I am hardly satisfied by the court's cursory treatment of jurisdiction, especially in this age of the Supreme Court’s exuberant federalism. The court’s entire treatment of jurisdiction—just one paragraph—follows (but footnotes are omitted), with defendants’ contentions and my commentary interspliced.
Court: “this court is not reviewing any substantive holding of the SJC with respect to the Massachusetts constitutional issues that were at the heart of the Goodridge case. Rather, it is determining whether certain of the SJC’s actions in connection with the Goodridge case violated the federal Constitution, specifically its Guarantee Clause.”
Sounds correct. Alleged violations of the Guarantee Clause clearly “arise under” the federal constitution, and so there’s no trouble with subject matter jurisdiction.
Court: “although state officials cannot be sued in federal court based on violations of state law, it does not follow that state officials cannot be sued in federal court based on violations of federal law. The Eleventh Amendment does not bar this court from ensuring, via prospective injunctive relief, that the residents of Massachusetts are not deprived of their federally guaranteed right to a republican form of government.”
This result may be ultimately correct, but the reason has nothing to do with the Guarantee Clause; the 11th Amendment might not bar this suit because under Ex Parte Young, suits against state officers in their official capacity might be characterized as something different than suits against the state itself (which the Eleventh Amendment bars). Suit against the individual Justices of the SJC might be okay under Young, but suit against the SJC itself is probably barred by the 11th Amendment (per Edelman v. Jordan, state agencies are shielded by the 11th).
Court: “the deprivation of the right to a republican form of government, that is, the injury that Plaintiffs have alleged in this case, is sufficient to establish standing. Moreover, there can be no question that the issuance of an order enjoining the enforcement of the Goodridge decision would serve to redress that injury.”
The court cites no authority at all. This reasoning is completely inadequate: if all one must do is allege that a provision of the Constitution was violated (or, for that matter, any provision of law), then the standing requirement ceases to exist. Plaintiffs in Allen would have needed only to allege: “our injury is a deprivation of Equal Protection.” Stating a legal conclusion is not equivalent to stating facts that constitute a cognizable injury, and in these days of rigorous standing inquiries, I’m baffled that the court didn’t take standing much more seriously here. The requirement is called “injury in fact” which on its face encourages an extra-legal investigation into whether a material controversy exists; the inquiry is extra-legal because standing—at least in theory—is decided before the merits are reached. The court makes zero effort to show how the facts make out a palpable injury, and unless there are facts I’m missing, I still support the view that under current standing law, there is no injury in merely watching one’s state court act unconstitutionally, which appears to be all plaintiffs have here.
Now, in my opinion, standing is often more trouble than it’s worth, and I think the “case or controversy” requirement of Article III could, in all but exceptional cases, be satisfied at the 12b6 stage. Another problem with standing that’s highlighted by this suit is that when one’s state (supposedly) violates the federal constitution but doesn’t materially harm anyone (“material” being the loaded word here), no one can stop them in federal court. Violations of the Establishment Clause are often of this nature; people often really don’t like when the government unconstitutionally supports religion in a way that causes no “concrete” harms, but standing doctrine would appear to bar many suits against such unconstitutional action (creating a rights-remedies gap). Ultimately, it’s not that hard to find someone who is uniquely injured, but the requirement of unique injury seems a bit arbitrary. Although standing doctrine preserves the dispute resolution model of federal adjudication (i.e., courts are there only to resolve concrete disputes between actual parties), the public generally views important federal decisions as much more significant than a concrete dispute. If the public significance of Newdow, for instance, is whether the Constitution permits “under God” in the pledge, who cares if he had custody over his daughter? The case is about church and state, right? Sort of.
At any rate, standing is a requirement under current law, and this case presents serious jurisdiction questions. I would be very surprised if the court were not reversed on standing grounds, unless plaintiffs make better allegations of injury. For instance, as Tony Rickey has suggested in comments to an earlier post, plaintiffs might allege that in their capacities as employers, they must give gay married couples certain benefits, which would undoubtedly be an injury in fact. Plaintiffs’ counsel, however, may have chosen to avoid this route because it presents fairly serious ripeness problems (because it won’t be clear who has to cover what benefits until after May 17th—that is, the controversy is not yet ripe).
Court: “the United States Supreme Court, in New York v. United States, refused to embrace ‘[t]he view that the Guarantee Clause implicates only non-justiciable political questions . . . .” In fact, the Court recognized that it had previously “suggested that perhaps not all claims under the Guarantee Clause present non[-]justiciable political questions.’”
Since the court is relying on no more than dicta, it would be nice to see a discussion of the political question doctrine, but I don’t really care because the issue isn’t as salient or interesting as others.
This post is far too long, so perhaps I’ll return to the merits of the decision later.
Apparently, the "doctor" who counsels the ugly ducklings on Fox's "The Swan" got her PhD from a diploma mill and isn't really a doctor at all. Imagine that. This is really going to hurt Fox's reputation, because everyone knows what a high standard they purport to live up to.
Sorry no posts from me for the last few days -- exams combined with a laptop that wouldn't let me access the Internet except from the library made it a challenge. But exams are done, I guess for all of us now. Hooray.
As I catch up on stuff I didn't read this past week, the only thing inspiring me with much to say, at least for now, is Prof. Smith's post about exam grading, and that he likes to give a take-home exam because it allows for more analysis than glibness. As a student, I prefer short in-class exams, because they reward glibness more than analysis. How ironic.
Today in History (1948) - Israel declares itself to be an independent state and a provisional government is established.
The website of adult entertainer Sunny Leone (explanation of why I was looking at this here) includes an odd warning on the page before one can enter her virtual store. The usual prophylactics are there: I am over 18 years of age; I will do all in my power to prevent access to the adult sections of this site by minors; etc.
Yet one caught my eye: "The items I order do not violate my personal or my community standards." Presumably one would know what one's own personal standards are, but how does one determine what community standards are? If the postman reports one to the police and one is arrested for violating them, that would send a clear signal. Otherwise, those standards seem likely to be vague and inconsistently applied.
In what community would this stuff be considered acceptable? And do they have good restaurants?
Today in History (1985) - Philadelphia's mayor orders police to storm the radical group MOVE's headquarters to end a stand-off. The police drop an explosive device into the headquarters killing 11 MOVE members and destroying the homes of 250 city residents in the resulting fire.
... we're in for a shame-fest of rock star posturing as spiritually conflicted visionary. Jim Morrison's poems were generally bad, but at least most of them made no sense. Hopefully Corgan's will enjoy the same virtue. Look out, Chicago.
Washington events surrounding the 50th anniversary of the Supreme Court's desegregation decision:
Wednesday the 12th, at 6:30 P.M. Law professor Sheryll Cashin discusses and signs The Failure of Integration: How Race and Class Are Undermining the American Dream at Karibu Books-P.G. Plaza, 3500 East-West Hwy., 301-559-1140.
Thursday the 13th, at 6:30 p.m. Alonzo Smith, curator of "Separate Is Not Equal" at the National Museum of American History, and historian Donald Roe discuss the local case Bolling v. Sharpe, decided in 1954. City Museum of Washington, 801 K St. NW. $10. For reservations, call 202-383-1839.
Sunday the 16th, at 3 P.M. Charles J. Ogletree Jr. discusses and signs All Deliberate Speed: Reflections on the First Half-Century of Brown v. Board of Education at Sisterspace and Books, 1515 U St. NW, 202-332-3433.
May the 17th, VIP reception at 6 P.M. & program at 8 P.M. The NAACP, Howard University and the NAACP Legal Defense and Educational Fund, Inc. will honor civil rights pioneers and leaders who participated in the Brown decision, along with contemporary luminaries who have advanced the promise of Brown. The event will be held at Constitution Hall, 311 18th Street, N.W.
May 17: Historic marker dedication, 12:30-1:30 p.m., Stratford building, 4100 Vacation Lane. Remarks by Barbara A. Favola, Arlington County Board chairman; Frank K. Wilson, Arlington School Board chair; the Rev. Leonard Hamlin, Black Ministers Association; and Talmadge Williams, Arlington NAACP president. A moment of silence will be held at 12:52 p.m., the time when the Supreme Court's decision was read on May 17, 1954, and also a "Swapping Stories" presentation, featuring two former Stratford students who attended the school in 1959 and two current Arlington public school students.
May 17: An Evening of Celebration and Commemoration, 7-9 p.m., Thomas Jefferson Community Center, 3501 Second St. S. The program will include a stage presentation, recounting the story of the Brown decision in the national and local arenas with music and song, along with the reading of a joint resolution and remarks by Wilson, Favola, Hamlin and Williams.
The events are sponsored by Arlington County, Arlington public schools, the Arlington Human Rights Commission, the NAACP Arlington chapter, the Black Ministers Association and Arlington Public Libraries.
WITH AN EVEN HAND: BROWN V. BOARD AT FIFTY -- Open Thursday. Through Nov. 13. More than 100 items from the library's collection of books, photographs, political cartoons, music, films and more. Library of Congress, Jefferson Building, Great Hall, 10 First St. SE. Free. 202-707-4604.
SEPARATE IS NOT EQUAL: BROWN V. BOARD OF EDUCATION -- Opens Saturday. Celebration noon-4 p.m. Through May 30, 2005. The exhibition, marking the 50th anniversary of the landmark Supreme Court decision, includes a classroom from a segregated school, videos of public reaction to the ruling, photos and more. The opening celebration includes music, tours and films. National Museum of American History, 14th Street and Constitution Avenue NW. Free. 202-357-2700.
WITH ALL DELIBERATE SPEED -- A documentary by Peter Gilbert (producer of "Hoop Dreams") about desegregation after Brown v. Board of Education. At Landmark's E Street Cinema.
Happy 67th birthday to comedian George Carlin.
The revelations of abuse at Abu Ghraib prison have created a new interest in how the United States treats its own on American soil. The chief point highlighted in these articles is the epidemic of rape in U.S. prisons; an estimated one in five male prisoners are sexually coerced at some time.
This analogy to what happened to Iraqi prisoners is in some ways more salient than that of the My Lai massacre during Vietnam, particularly because the abuse is happening to adult men who have been deemed criminal and is damaging not only for its obvious physical harm but also for the element of humiliation. InstaPundit, for example, has decried the My Lai comparison because that massacre involved "innocent women and children, not the mistreatment of prisoners."
Implicit in that distinction is the idea that not only is murder worse than abuse and humiliation -- something not necessarily true in other cultures -- but also that mistreating prisoners is less morally problematic than mistreating people who have not been found guilty of a crime or (in the case of many Iraqi detainees) who have not fallen under the suspicion of the U.S. authorities.
Which raises the question in my mind: Do we, consciously or unconsciously, think that abuse is part of the appropriate punishment for being in prison? Do we believe that the loss of liberty is insufficient, and that additional penalties should be paid? Or, at least, that if they are paid, we should not be excessively troubled by it?
Although male-on-male rape in American prisons generally is committed by the inmates against each other, other forms of abuse of inmates by prison officials are widespread. The New York Times reports that in Pennsylvania, inmates are stripped publicly before being moved to a new place; Maricopa County (AZ) jail inmates are made to wear pink underwear; guards at a Virginia maximum security prison allegedly often beat inmates and force them to crawl.
The experts also point out that the man who directed the reopening of the Abu Ghraib prison in Iraq last year and trained the guards there resigned under pressure as director of the Utah Department of Corrections in 1997 after an inmate died while shackled to a restraining chair for 16 hours. The inmate, who suffered from schizophrenia, was kept naked the whole time.At least one American thinks we shouldn't be so outraged by the Abu Ghraib abuse. "You know, they're not there for traffic violations," Sen. James Inhofe, R-OK said. "If they're in cell block 1A or 1B, these prisoners -- they're murderers, they're terrorists, they're insurgents. Many of them probably have American blood on their hands. And here we're so concerned about the treatment of those individuals." (Link via Unspun Zone.)
Technically, most of the prisoners have not been tried and convicted of any crime, not even a traffic violation. Even once they have been, Sen. Inhofe's attitude is wholly inappropriate; punishment should be handed out on a pre-determined basis, not thrown down at the whims of the guards or fellow prisoners. Judges and juries sentence criminals for their crimes and to pile more suffering on arbitrarily undermines the justice and legitimacy of our system.
I suppose it goes without saying that not everyone looks forward to May 17th in Massachusetts:
Mat Staver, president and general counsel of Liberty Counsel, issued a statement Monday saying "the federal courts are obligated to step in to ensure that Massachusetts is following the basic principle of separation of powers that is vital to our very system of law and government."
Both cases, as Matto notes, rejected standing when no more was alleged than an undifferentiated desire to see the government act lawfully. This presents a very interesting question in the gay marriage context: could there ever be federal standing to challenge government action conferring the benefits of marriage on same-sex couples? Suppose, for instance, that the backlash against gay marriage grows more intense in the coming years, and for whatever reason a Federal Marriage Amendment to the Constitution is adopted, prohibiting states from recognizing same-sex marriage. Who could challenge a disobedient state in federal court? The mere fact of watching one's state disobey the federal constitution in giving benefits to same-sex couples is not likely at all to be an "injury-in-fact." Consider the standing test put forth in Allen v. Wright (approved by Lujan, but placed in question by FEC v. Akins, 524 US 11 (1998)):
In Allen, mothers of school children alleged that "they are harmed directly by the mere fact of Government financial aid [contrary to IRS regulations] to discriminatory private schools" , but the Court said that "might be a claim simply to have the Government avoid the violation of law" which is insufficient for standing. Id at 752-55.
Lujan addressed a provision of the Endangered Species Act requiring federal agencies to consult with the Secretary of the Interior to make sure the agency's actions would not jeopardize the existence of endangered species. A subsequent promulgation limited this requirement to agency actions taken in the United States, so wildlife enthusiasts sued for a declaration that this promulgation should extend to international actions. Even though plaintiffs had previously observed foreign habitats of endangered species, the Court held that they had no standing (no "injury"):
Although traditional family acitvists might feel that they are more "injured" by gay marriage than the average citizen, this surely isn't enough after Lujan, where wildlife enthusiasts had raised only "a generally available grievance."
Under current law, the concrete and material nature of an injury required for standing is simply not the kind of injury that traditional marriage advocates can allege, so I don't see how laws conferring gay marriage--even if they disobey the federal constitution--could be challenged in federal court. Unless, of course, an FMA explicitly granted jurisdiction to Article III courts, or created a special administrative agency to deal with its enforcement.
In his post about the Justice Department's decision to re-open the investigation of Emmett Till's murder, Nick says, "Surely the remaining perpetrators (if any) should be brought to justice, and I support a renewed prosecution for its symbolic value (the 'public therapy' view of criminal justice is particularly keen here)."
Depending on what "brought to justice" means, I may have to disagree with Nick. Certainly if there were people involved in the crime other than the two men, now deceased, who were arrested, tried, acquitted and who then sold the story of how they lynched Till to a magazine, their guilt should be determined and publicized.
But now, when crimes like Till's murder are formally recognized through hate crime statutes to be particularly heinous and deserving of extra punishment, I doubt that much purpose will be served by putting senior citizens in prison for a 50-year-old killing. The public shaming should be enough.
Today in History (1995) - In New York City, more than 170 countries decide to extend the Nuclear Nonproliferation Treaty indefinitely and without conditions. Three years later, India conducts its first underground nuclear tests, which would have violated the Treaty had India been a signatory.
Remember Emmett Till, the black teenager who was brutally lynched in Mississippi for (apparently) whistling at a white woman in 1955? Although his two murderers have passed away, others may have been involved, possibly in kidnapping him, and the Department of Justice is working with the Mississippi Attorney General to reopen an investigation.
Surely the remaining perpetrators (if any) should be brought to justice, and I support a renewed prosecution for its symbolic value (the "public therapy" view of criminal justice is particularly keen here). Beyond that, what's perhaps most remarkable about this story is the phenomenon of the federal government and a deep-south state cooperating to vindicate the most infamous hate crime in American history. It's worth pausing to note the extraordinary success of the civil rights movement, even if it's still incomplete.
Since, say, 1960, which Cabinet-level officials (or the Director of Central Intelligence, who's pretty high up there) resigned because (1) they admit that they have failed in some task, or (2) their subordinates (direct or indirect) have failed and the officials want to take responsibility for the subordinates' failure (and perhaps their own failure to monitor the subordinates)? I'm excluding (A) firings of such officials, and (B) resignations prompted by personal scandal, unpopular comments, or general unpopularity. I'm looking for resignations of the "My policies have proven to be wrong, and I'm resigning to take responsibility for them" variety.Due to the lack of comments on the Conspiracy, I don't know how many people have come up with answers, but I'd be interested to see if De Novo readers could answer a question that comes before Volokh's resignation query.
The question is: Since 1960, which Cabinet-level officials or CIA directors have had massive failures that were regarded as such during their term in office?
For example, J. Edgar Hoover is now something of a by-word for the government's powers of surveillance being misused. But from what I understand, he was not regarded in this light by the majority of Americans during his tenure as FBI director. Even if it was known at that time just what he was doing with his powers -- as it is now being known how military authorities in Iraq have used their powers -- it was not seen as abuse, unlike the general consensus in the U.S. and the world that the treatment of Iraqi prisoners is clearly abuse.
Earl Butz, who resigned as Secretary of Agriculture due to the furor over his making a racist joke, would not meet Volokh's parameters because the resignation was prompted by an "unpopular comment" and was not due to policy.
Samuel Riley Pierce, Jr., Secretary of Housing and Urban Development 1981-89 and the only black member of the Reagan Cabinet would fit, except for his failure to resign. An independent counsel appointed in March 1990 found "a pervasive pattern of improper and illegal behavior" within HUD, amounting to a "monumental and calculated abuse of the public trust." Pierce acknowledged that he helped create a climate in which the corruption took place, and in return for that statement, prosecutors agreed not to pursue charges against him.
Caspar Weinberger, Secretary of Health, Education and Welfare 1973-75 and Secretary of Defense 1981-87 resigned from the latter office on November 23, 1987, but cited his wife's declining health -- not the Iran-Contra affair -- as the reason. He received the Presidential Medal of Freedom in 1987 and was pardoned by President George Bush in 1992 to forestall any prosecution over Iran-Contra.
But the majority of politicians who get into publicized trouble have committed crimes or at least broken rules governing the conduct of office-holders. People who have made mistakes, like failing to respond to Rwandan genocide, are generally regarded as simply human, when we recognize their mistakes at all. (President George W. Bush, for example, does not regard America's inaction during the killing of 800,000 people as an error.)
The most frequently invoked parallel to our current situation is Vietnam. Every aspect of Iraq, from the suspicious native population to the turning-over of the war to local troops trained by the U.S., is compared to the twists and turns of the Vietnam War, the only foreign policy failure generally and strongly acknowledged in our collective memory.
Yet even in that war, which featured massacres and massive destruction far beyond anything Americans have done in Iraq, no one at the top resigned with their errors given as the reason for the resignation. Secretary of Defense Robert McNamara resigned February 29, 1968, but to become president of the World Bank and with the Medal of Freedom and the Distinguished Service Medal in hand. Though he recently has written and spoken about his regret and guilt over the mistakes he made, we cannot say that he resigned over them any more than Weinberger resigned over Iran-Contra.
Moreover, at the time McNamara resigned, his actions were not popularly regarded as clearly wrong. In the 1968 election -- in the 1972 election, as well -- Americans did not vote on the basis of the candidate who would repudiate past policy on Vietnam, but for the candidate who promised to let us have our victory and bring our troops home too.
In some ways, I would consider the calls for resignations over the Abu Ghraib scandal to be a sign of advancement in the United States. We are now able to recognize outrages as such, and to demand accountability from our leaders, instead of ignoring them as the natural consequences of war.
In some other blogplace, at some other blogtime, someone commented that comparing the struggle for equality for homosexuals to the struggle for equality for African Americans implies that everyone who is not in favor of the former must be a racist, despite their support for the latter.
I don't think the implication is of racism, but rather of inconsistency; the thinking is that people who are in favor of equality for one group ought to be in favor of it for another unless there is a relevant difference. In the view that neither one's race nor one's gender/ sexual orientation ought to be regarded as a relevant difference for being treated equally, to want equality for people of the minority race but not of the minority orientation or historically-oppressed gender is an inconsistent support for the principle of equality.
Alas a Blog looks at it differently:
Why is it that we can't seem to get away from viewing the black civil rights struggle as the Platonic civil rights struggle, the struggle that all other struggles must resemble or else be illegitimate?
Think of the debate, in recent months, over if same-sex marriage is a civil rights issue. It's almost always presented in the same way: as a question of if the gay rights movement is similar to or different from the black civil rights movement (those who are pro-SSM say "similar," those who aren't say "different"). It's rarely presented as a question of if justice and equality are being denied to same-sex couples, taken on their own terms.
It's like a perverse variation of the "model minority myth," which is so often used to attack blacks (e.g., "if Jews and Asians made it despite discrimination, why can't blacks?"). This time, it's the "model civil rights movement" myth. We need to get over it.
Legal thinking relies strongly on precedent, which makes comparison even more inviting. If sexual orientation becomes regarded as a 14th Amendment-protected suspect classification, discrimination against homosexuals will become illegal. If even gender becomes fully regarded as such (with strict rather than merely heightened scrutiny), prohibiting same-sex marriage will become unconstitutional.
I understand ampersand's point. We should be able to look at homosexuality, at same-sex couples, and evaluate their claims to justice and equality on their own terms and without reference to a different civil rights movement. If Americans were somehow able to make the mental, emotional or spiritual leap required to look at people of different races as their equals, why wouldn't we be able to look at people of other sexual orientations as our equals? What is the hurdle?
I don't know. But until that leap seems to be happening, advocates for equality are unlikely to abandon the comparison to an earlier and successful struggle.
Today in History (1984) - The International Court of Justice said the U.S. should halt any actions to blockade Nicaragua's ports (the U.S. had already said it would not recognize World Court jurisdiction on this issue.)
A newly patented countermeasure against P2P file-sharing:
That's about as specific as the article gets regarding the "method," so it's pretty hard to say how effective this will be. One would like to know, for instance, whether these bogus files would be served from a discernible network source or user. It'd also be nice to know whether counter-software could be developed to spot bogus files quickly.
At any rate, frustrating downloaders like this is a far more cost-effective measure for all involved.
The FBI is holding attorney Brandon Mayfield of Beaverton, Oregon, after his fingerprints were identified on evidence connected to Madrid train bombings. Mayfield's previous claim to fame was in legally representing Jeffrey Leon Battle, one of the "Portland Seven" who attempted to travel to Afghanistan after 9/11 in order to fight alongside the Taliban against the United States. According to Portland lawyer Tom Nelson, Mayfield will be represented by a public defender.
I posted this at my solo blog, but then I realized it needs a home with comments:
/Includible/ or /Includable/ ??
/Excludible/ or /Excludable/ ??
Maybe this bothers me more than it should, but my tax casebook can't decide, and neither can I. I like them with the /a/ not the /i/, but I'm not sure if that's just personal preference, or I'm actually correct. Merriam-Webster online likes them both the same. Anyone?
A few people have expressed curiosity about Professor Volokh's exams. I share that curiosity, having just completed one, finding myself none the wiser about their mechanics. Suffice it to say that Volokh's background in computer science and mathematics shows in the logical precision he expects (in class and on the exam). That the exam didn't seem intensely challenging to me must certainly be a bad sign, considering how thoroughly booby trapped his previous exams are (I know because answers to them are available). I must say, though, that I enjoyed the "big" question, which was to write a policy-based dissent to Hustler v. Falwell.
Anyway, 2L is done for me. Thanks for tolerating this brainless post--I should be back to normal blogging soon.
The reasons most likely to get your pleadings stricken:I'm not entirely sure why I find this so amusing; perhaps it is the David Letterman-esque wording. If Jeremy begins writing for a comedy show, I would expect a Top Ten list like this.
No averment of conference by movant (LR 7)
Not signed by, or by permission of, the attorney in charge (LR 11.3)
No certificate of service (LR 5.4)
No proposed Order (LR 7.1 & 7.4)
Perhaps it's just the awesome efficiency represented by this pop-up. Suppose that you're an angry plaintiff wondering what happened to your pleading, so you go online to find the phone number of the person responsible. Clicking on the Southern District's website, you find a pre-emptive answer: "Before you bother us, make sure you got all this stuff right, bucko."
The only problem is that the first possibility, at least, is rather difficult to understand. I know what all the words mean separately, but I wouldn't bet on my ability to guess correctly what they mean all together.
As the first Thursday in May, today is the National Day of Prayer. The honorary chairman of this event is Oliver North. Alternative activities: watch the last episode of Friends and wish a happy 57th birthday to Martha Nussbaum.
At co-blogger Nick Morgan's suggestion, this Brown post contrasts the Warren Court with the Rehnquist Court, with particular attention to "the broad injunctive relief paradigm of federal court intervention," states' rights and the 11th Amendment.
As this is a large topic, and I am in any case making it up as I go along, I hope De Novo readers will forgive my hopscotch approach.
Those who wish to distinguish the Warren and Rehnquist Courts from each other have plenty of labels at their disposal, with "liberal" vs. "conservative" the most obvious. One word, however, describes both Courts: "activist." Both are unafraid of using the power of judicial review to overturn law, though the Warren Court preferred to meddle with state laws requiring segregation and school prayer, whereas the Rehnquist Court concentrates its fire on Congressional legislation such as the Violence Against Women and Americans with Disabilities Acts.
"In getting the decisions we like, we run the risk of decisions we despise. [...T]hose who celebrate Brown as the exemplar of judicial review have to live with Supreme Court decisions restricting affirmative action and campaign finance reform." -- Mark Tushnet, Taking the Constitution Away from the Courts.
This may reflect which level of government each Court found more problematic. The Warren Court saw states stifling their citizens' rights, but the Rehnquist Court views the federal government as expansive and over-reaching. The results tend to be that the Warren Court gaveth and the Rehnquist Court taketh away (blessed be the name of the Court), at least with regard to broad injunctive relief. Where Warren found rights that citizens could sue to have upheld, Rehnquist dismisses rights that Congress attempts to create.
"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." -- Eleventh Amendment to the U.S. Constitution
Much of this dismissal relies on the 11th Amendment. Notwithstanding its plain text, historical context and Chief Justice Marshall's temporally proximate construction, it has been read since 1890's Hans v. Louisiana to bar federal suits by a citizen against her own state. Coming up with the idea of implicit or penumbral rights long before Griswold, Justice Bradley & Co. decided that state sovereignty, even beyond its articulation in the 11th Amendment, could not withstand the indignity of federal lawsuits by individuals. This particular form of sovereignty, though never explicitly mentioned in the Constitution -- indeed, rather denied by Article III Section 2's "The judicial power shall extend to all cases, in law and equity, arising under [...] the laws of the United States" -- nonetheless must exist.
In a way, the Fuller Court and subsequent courts using that interpretation have a similar view of the states as the Griswold majority did of individuals. Those who see a right to privacy in the Constitution cannot conceive of how Americans are to be meaningfully free without it; for example, do not see a nation in which the the government routinely barges into bedrooms to see what husband and wife are doing as a nation of liberty. Those who see a prohibition on federal suits against states cannot conceive of how states are to be meaningfully sovereign without it.
When one is meditating on Brown, all this encourages a thought experiment. With 20/20 hindsight on the vast backlash against Brown -- the massive resistance, Prince Edward County's five year school closing -- many scholars argue that the Warren Court was unwise in making a sweeping declaration against segregation in public education. These legal historians claim that the civil rights movement already had sufficient momentum, such that racial discimination in public education could have been prohibited by Congress. After all, the Civil Rights Act of 1964 passed Congress by a margin of 42 votes in the Senate (after a very lengthy debate and filibuster attempt) and 160 votes in the House -- a strong democratic consensus just a decade after Brown.
In this view, much of the resistance to desegregation was due to its having been illegitimately mandated by judicial fiat. The slogan "Impeach Earl Warren" was popular in the years following Brown, but no "Impeach LBJ" nor "Impeach Congress" stickers seem to have been widespread immediately following the passage and signing of civil rights legislation.
But state sovereignty presents a problem for the Congressional alternative to Brown. While all but the most demented supporters concede that states must obey the U.S. Constitution, including [sigh] the Supreme Court's interpretation of that Constitution, they very much do not believe that states must obey Congressional legislation. Or at least, they do not believe that obedience can be enforced by the federal courts. Congress may make laws prohibiting discrimination on the basis of age, but the Rehnquist Court won't uphold suits to force Florida to compensate older employees appropriately.
So if Congress had, in the absence of Brown, legislated that states could not separate students by race, how would this have played out? Suppose some particularly hardened state like Alabama was unappeased by desegregation's having come through Congress instead of the Supreme Court, and steadfastly refused to obey that law. Under the state sovereignty view, African American children could not sue Alabama in federal court, under the federal desegregation statute, because that would interfere with state sovereignty.
Yes, I've actually been studying. But if I spend a chunk of the day reading about law, sometimes I like to read for a little while before bed about something else. So the last few days I've used John Stossel's "Give Me A Break" as my bedtime reading, and I've dreamt of government regulators getting assassinated and Congressmen falling down wells. I like John Stossel. His 20/20 pieces are usually interesting, colorful, and fun to watch. The book chronicles his transformation from a consumer advocate, doing pieces about how, say, asbestos is hurting kids, to a libertarian, skeptical of government regulation of most kinds. Basically, as he reported on more and more consumer dangers, he started to realize that the free market wasn't the problem, and private companies were more efficient than when government stepped in and tried to regulate, but ended up just making the problem worse, or pretending it was fixed when it wasn't. "Government is inefficient" is the point Stossel's trying to sell. The book is a breezy mix of anecdotes about stories he worked on and -- I'm looking for a less loaded word than this, but can't find it -- libertarian propaganda.
Done well, but clearly motivated by a certain point of view. If you've seen his ABC News Specials, a lot of the topics in the book will sound familiar, because he's reported on them, and to some extent the book summarizes a bunch of those reports. It's a fine book, and it's entertaining to read, but even if he's being completely fair and accurate, you get the sense while reading that he's playing fast and loose with the facts -- everything's definitive in here: breast implants are safe, dioxin is safe, organic foods are no healthier than regular food and in fact may be more dangerous because they have more bacteria, government handouts are bad, flood insurance is bad, high salaries for corporate CEOs are good, privatizing housing projects is good, banning smoking is bad, legalizing drugs is good... there's no nuance here, there's no ambiguity, no arguments on both sides of the issue... and maybe Stossel's decided there just aren't any good ones, and it's all so clear... but as entertaining as it is to basically say "libertarian ideas are right, and people who don't see it this way are just stupid and wrong and should be mocked," it doesn't feel completely satisfying.
I especially enjoyed his chapter, "The Trouble With Lawyers," which tort lawyers would likely find infuriating. Lawsuits, Stossel writes, are like nuclear missiles -- "We need them... [but we should] try not to use them, because they harm innocent people." They're expensive, people abuse them, lawyers make all the money, they deter innovation, they stop kids from playing Little League, drive up the cost of bicycle helmets, send companies who may have used asbestos but didn't harm anyone into bankruptcy, cost thousands of jobs, force McDonalds to serve cold coffee, destroy the innocent tobacco companies (because smokers, by dying early, don't actually cost us anything), close down businesses just because they're not wheelchair-accessible -- and the solution to all this? "Loser pays." That would fix it. Very entertaining to read, sometimes even a little thought-provoking, but there's the depth of the analysis. He has a point to make, he's trying very hard to make it, he makes it well -- but this is advocacy, not balance.
So, I'm not a libertarian, but I still enjoyed the book. And maybe I take away from it a little bit more skepticism about government regulation than I had, and a few colorful anecdotes. But it's fluff. It's a breezy libertarian primer, playing loose with facts and nuance to make a point. There's nothing *wrong* with that, I guess -- but somehow it's not completely satisfying.
Today in History (1862) - General Ignacio Zaragoza led the vastly outnumbered Mexican army to victory over the French forces of Emperor Napoleon III.
Today in History (1970) - Shortly after noon, 13 seconds of rifle fire by a contingent of 28 Ohio National Guardsmen left four Kent State students dead, one permanently paralyzed, and eight others wounded.
Howard Bashman's site is great, although I admit I mostly check it to find inspiration for posts when I'm feeling inspirationless. And this isn't meant as criticism, because I'm a big fan of Howard's and think he provides an awesome service -- but a bit of a headscratcher today. His new 20 Questions went up today, but he later posted this semi-apology for it:
Underwhelmed by this month's installment of "20 questions for the appellate judge": Several readers have expressed their disappointment... When I first reviewed the answers, I too was disappointed by how terse so many of the answers were... One less than fulfilling interview in sixteen months is not a bad batting average, although it is worse than I would have preferred.
I read the post before the 20 Questions, and the 20 Answers aren't the best he's had and some of them are pretty terse, but it strikes me as a bit uncharitable to say so. If I were Judge Teitelman, I'm pretty sure I'd be annoyed I even bothered.
But this is all to lead to a broader point, that's not about Howard Bashman: this is a weird medium we play in. There's no safeguards against emotion. We type, we click, and it's there for the world. Sure, you can delete stuff later, when you realize you crossed a line, or you regret what you said, but people have seen it. It's out there. It's scary sometimes.
Today in History (1948) - In a unanimous decision, though with three justices not participating, the Supreme Court ruled in Shelley v. Kraemer that covenants prohibiting the sale of real estate to blacks or members of other racial groups were legally unenforceable.
The subtitle of "The Progress Paradox" does a great job summing up what the book is about: "How Life Gets Better While People Feel Worse." And to sum up my review: the first half of the book is quite thought-provoking and excellent, but the second half for some reason let me down. Read more for my poorly-articulated explanation for what I mean. :)
Basically, the book's about how life for people in the Western World has never been better -- people are healthier and live longer than ever before, have more leisure time, an abundance of food and consumer goods, luxuries people a few generations ago could never have dreamed of -- yet we're not any happier. The book is littered with conversation-droppers, little facts that percolate in your head and end up finding an appropriate place in all sorts of discussions -- two that I've found myself using just in the day or so since I finished the book:
(1) people complain about having to spend money on health care, but what better thing could we be spending money on than living longer, healthier lives -- Easterbrook argues we should be glad that we can spend such a substantial fraction of our income on something as important and rewarding as health care; (2) society as a whole is well-off enough that even people at the lower end of the income scale live lives that are much closer to how the rich live than ever before in history -- they have cars, and cable TV, and a place to live, and enough food -- the differences are much more marginal than in the past -- life expectancy for the poor is not substantially lower than for the rich -- heck, one of the biggest problems is that poor people are overweight. Poor people in generations past simply could not afford enough food that they could ever be overweight. Crime is down, jobs are less labor-intensive than in generations past, people have more leisure time, education is more obtainable, etc, etc, etc. The vast majority of people live in something approaching The American Dream.
But trend-lines say we're no happier than we used to be. And that beyond an income of $11,000/year, more money really doesn't seem to buy more happiness. Depression rates are rising. Self-reported happiness surveys report happiness down. Easterbrook spends a while arguing that part of it is that people don't feel like the next generation will be any better -- that we already have so much how can quality of life continue to rise. That argument doesn't ring true to me as much as his other big one, that for most of humanity we've had to worry about necessities like food and shelter, and now that most of our necessities are taken care of, we worry about wants -- and there are always more things to want, and more things that other people have, that we can never get fully satisfied. And the wants disappoint when we get them, so we're never really happy. His third (related) argument is that for the first time people aren't worried about the necessities and now have time to ponder the meaning of life and worry about fulfillment -- and that's harder to satisfy than food on the table will satisfy hunger.
This was all very interesting to read, because it's the kind of stuff I sometimes ponder and he's pondered it in a more organized and better-researched way than I ever have, obviously, so I found this compelling. But then the last half of the book seems to lose its nerve and its ambition. Easterbrook argues we should all sleep more, be more forgiving, and keep a "gratitude journal," and that as a society if we raised prices a little bit we could pretty much eradicate the problem of world impoverishment and that we have a duty to give more aid to poor countries. I don't disagree with any of that, but it's not as bold and insightful as the first half of the book got me revved up for. I sleep a lot, and I'm pretty grateful, I think -- but I still wrestle with questions about how to really feel like I'm living a life that matters and wake up each morning content and happy and fulfilled. The book didn't get me any closer. It didn't help explain why it seems like so many people don't admit these concerns and go on living lives that seem shallow and unrewarding. It pretended we all care about this stuff, and I'm not sure we all do. And the foreign aid stuff is great -- but it's not prescriptive toward individual lives so much -- I could give $30 a month to Save The Children, but beyond that there isn't a ton I can do to effect governmental policy (although I guess if everyone read his book and lobbied for higher sales taxes...). CEOs get paid too much, sure. We don't need three TVs per person, sure. But this wasn't what the book built up in its excellent first half to leave me hoping for in the less-excellent second half. I can't recommend the first 187 pages of this book any more than I do. Read them. They're fascinating, thought-provoking, and really excellent. But the next 150 didn't do it for me. I don't know. I don't know what I was waiting for, but it didn't hit me hard enough. I can't help but think there's a different second half of this book on Gregg Easterbrook's hard drive, and his editors wanted a different story. But read the book. It's mostly quite fantastic.
Today in History (1997) - The Labour Party's Tony Blair becomes Prime Minister of the United Kingdom, ending 18 years of Conservative Party rule. At 44, he is the youngest prime minister in 185 years.
If you've been under a rock for the last several months, allow me to inform you that the 50th anniversary of the Brown vs. Board of Education desegregation decision is fast bearing down upon us. I have an ambition to write a post each day until May 17 about some aspect of the case, drawing heavily on What Brown Should Have Said, the collection of essays edited by Jack Balkin.
Day of the International Solidarity of Workers, aka May Day or Labour Day. Today in History (1884) - Proclamation of the demand for eight-hour workday in the United States. Two years later, the general strike that eventually won the eight-hour workday began. Eight years after that, Coxey's Army, the first significant American protest march, arrives in Washington D.C. to lobby the government to create jobs. Happy 174th birthday to labor activist Mother Jones.