The Volokh Conspiracy

As I mentioned last week, Terry Jones — a minister at the ironically named Dove World Outreach Center — is organizing a burning of Korans to mark September 11. That strikes me as both largely pointless, non-substantive rudeness (as opposed to fair and substantive criticism of Islam, which would be perfectly proper) and as largely counterproductive to any realistic attempt to try to convert people from Islam to Christianity. In fact, it plays into the hands of those who are trying to associate American criticism of Islam — including more substantive, reasoned criticism — with angry, substance-free extremism.

But it seems to me that the response from Ibrahim Hooper of the Council on American-Islamic Relations (as quoted in this New York Times national feed story) itself plays precisely into Terry Jones’ hands. Here’s what Hooper was quoted as saying:

“Can you imagine what this will do to our image around the world?” said Ibrahim Hooper, a spokesman for the Council on American-Islamic Relations in Washington. “And the additional danger it will add whenever there is an American presence in Iraq or Afghanistan?”

Unless I’m misreading this, Hooper is pointing out that violent Muslims might respond to Jones’ symbolic expression by trying to kill American soldiers — and apparently suggesting that Jones should be held responsible for this reaction by violent Muslims.

This of course reminds people about the violent strains of Islam, and the danger those strains pose. But it also shows how some spokespeople for mainstream Islam (here, Hooper) are willing to use the actions by their violent coreligionists as a tool for suppressing non-Muslims’ alleged blasphemies and insults. That is precisely the image of mainstream Islam, it seems to me, that Terry Jones is trying to foster. I doubt that this was a cunning plan on Jones’ part, but that seems to be the effect.

Continue reading ‘Koran-Burning Minister and Council on American-Islamic Relations Spokesman Play Into Each Other’s Hands’ »

I thought I’d repeat a puzzle that I first posted five years ago.

Put these in order by moving the fewest names:

Washington, Wilson, Johnson, Johnson, McKinley, Davis, Jackson, Taft, Kennedy

Moving a name to between two other names, before the first name, or after the last name all count as one move. Thus, exchanging #2 and #7 requires two moves (since you’d have to move #2 and then move #7).

Note that “order” need not necessarily mean chronological order.

This is a purely political horseracing question, but I keep thinking about it every time I read another article talking about the 2010 elections.  Much of the commentary on the 2010 election seems to take for granted that a big Republican win in Congressional elections in 2010 presages the trend for the 2012 Presidential election.  And by the same token that the Obama political team must be deeply worried about trouble in 2010 for Congressional Democrats, if in fact the poll numbers turn out to be about right.

But I also thought I understood that one political horseracing lesson learned from 1994 was that a big Congressional loss to a party in power — especially if it holds Congress and the Presidency — is good news for the incumbent president.  Americans tend to prefer divided government, on this view, and if Congress flips to one side in the midterms, then that is actually — beneath the many crocodile tears — good news for the President on the other side come the presidential election.

I’m not really a political horserace maven and I don’t follow all this stuff closely.  But I’d be grateful if someone could explain how the White House sees the impending 2010 election and how much it cares, one way or another, and why, if Democrats were to lose the House, say, as a function of 2012.  In temperate language, please, and focused on the purely horseracing aspects, not the substantive politics.  This isn’t a question on the goodness or badness of Republicans or Democrats, the Obama administration, or anything else.  I’m just trying to understand whether the various players — the White House, the Republicans, the Congressional Democrats, etc. — see a major Democratic loss in the midterms as bad for the reelection fortunes of the President in 2012.  Put another way, the question is how closely the interests of Congressional Democrats and the President align in the 2010 election, in consideration of 2012.

I do realize that this kind of horseracing question is, in some way, inane; surely we should be focused on policy substance, etc., but I can’t seem to get it out of my mind.  I’m also interested in seeing any links to what pollsters and other experts on the elections are saying, just to satisfy my own curiousity.

On September 14, the US Commission on Civil Rights will be hosting a conference on Civil Rights in the 21st Century that may interest many of our readers. The event will be in Washington, DC, at the National Press Club [HT: My fiancee Alison Schmauch, a special assistant/counsel at the Commission].

There will be many prominent civil rights scholars and activists from across the political spectrum among the speakers, including James Patterson, Harry Holzer, Amy Wax, Amitai Etzioni, and others. The keynote speaker will be Washington Post columnist William Raspberry. Alison points out that law students, in particular, may want to take advantage of the opportunity to meet prominent people in this field.

New scientific studies suggest that the extinction of cave bears was caused by humans rather than climate change, as previously thought [HT: Instapundit]:

The cave bear started to become extinct in Europe 24,000 years ago, but until now the cause was unknown. An international team of scientists has analysed mitochondrial DNA sequences from 17 new fossil samples, and compared these with the modern brown bear. The results show that the decline of the cave bear started 50,000 years ago, and was caused more by human expansion than by climate change.

“The decline in the genetic diversity of the cave bear (Ursus spelaeus) began around 50,000 years ago, much earlier than previously suggested, at a time when no major climate change was taking place, but which does coincide with the start of human expansion”, Aurora Grandal-D’Anglade, co-author of the study and a researcher at the University Institute of Geology of the University of Coruña, tells SINC.

According to the research study, published in the journal Molecular Biology and Evolution, radiocarbon dating of the fossil remains shows that the cave bear ceased to be abundant in Central Europe around 35,000 years ago.

“This can be attributed to increasing human expansion and the resulting competition between humans and bears for land and shelter”, explains the scientist, who links this with the scarce fossil representation of the bear’s prey in the abundant fossil record of this species.

However, the learned scientists apparently overlooked an important alternative possibility. The new timeframe for the extinction of the cave bears falls in the same period when, according to other recent scientific findings, prehistoric hobbits “travelled half a world” (no doubt on their quest to destroy the Ring of Power). Perhaps the cave bears were minions of Morgoth and Sauron who — like the orcs and (non-internet) trolls — could not survive once the Ring was destroyed. More research is clearly needed. 

That’s the text of a sign spotted on the wall of a public tolet in China, reports Victor Mair (Language Log). (Mair’s translation is just “party,” but I added “Communist” since I take it that this is the party they had in mind.)

The European Union has been one of the most interesting experiments in federalism of the post-World War II era. At present, the EU is a very weak federal government, if one can all it a government at all. In some ways, it is even weaker than US government was under the Articles of Confederation that preceded the Constitution. For example, unlike the the US government under the Articles, the EU lacks an armed forces and a common foreign policy. On the other hand, EU regulatory authority has gradually increased, and many European elites envision eventually turning it into a full-fledged federal state that could rival the United States in power and influence. In this Washington Post op ed, political scientist Charles Kupchan (an admirer of the EU) argues that the Union is dying because of the recent resurgence of nationalism which has been exacerbated by current economic crisis:

The European Union is dying — not a dramatic or sudden death, but one so slow and steady that we may look across the Atlantic one day soon and realize that the project of European integration that we’ve taken for granted over the past half-century is no more....

For many Europeans, that greater good no longer seems to matter. They wonder what the union is delivering for them, and they ask whether it is worth the trouble. If these trends continue, they could compromise one of the most significant and unlikely accomplishments of the 20th century: an integrated Europe, at peace with itself, seeking to project power as a cohesive whole....

Europe is hardly headed back to war; its nations have lost their taste for armed rivalries. Instead, less dramatically but no less definitively, European politics will become less European and more national, until the E.U. becomes a union in name only. This may seem no great loss to some, but in a world that sorely needs the E.U.‘s aggregate will, wealth and muscle, a fragmented and introverted Europe would constitute a historical setback. 

Many of Kupchan’s points are valid. It is certainly true that nationalism is making a comeback in Europe, and that the richer nations are becoming more reluctant to pay the cost of increasing integration. He is also correct to point out that the recent economic crisis has greatly undermined the EU’s public support. 

On the other hand, Kupchan’s prediction of the “death” of the EU seems overstated. Even if the Union never becomes the sort of super-state envisioned by its most enthusiastic advocates, it will probably survive in a less ambitious but still very important form. The two greatest achievements of European unification over the last several decades are the creation of a continent-wide common market and freedom of movement. It is important and very impressive that goods from any of the 27 nations can be sold in any other without trade barriers. It is an even greater achievement that citizens of any one nation can live and work freely in any of the others, despite large differences in income and culture. Most American libertarians and conservatives dislike the EU, and there is indeed much to criticize. But the establishment of free trade and freedom of movement throughout Europe are two of the greatest advances of freedom in the recent history of the Western world.

These two crucial elements of the EU are likely to survive the current economic crisis and nationalist backlash. All but the most extreme European nationalists seem willing to leave them in place. In that important sense, the Union will not “die.” It will remain a very weak federal system, but one strong enough to continue to provide these two great benefits to the people of Europe. The EU will also likely continue to engage in a variety of regulatory and redistributive initiatives, albeit perhaps fewer than today. It may not become a true unified nation, but it will be far from being a “union in name only.” 

On the other hand, it is certainly possible that European integrationists’ dream of creating a superstate will die. Europe has far less cultural and ideological unity than the United States, and less sense of a common identity. As a result, the integrationist project may not survive the impact of crisis and nationalist backlash. Unlike Kupchan, I don’t lament that possibility. As he admits, the absence of a strong EU central government is unlikely to lead to the return of nationalist warfare between Europe’s nations. The combination of freedom of movement and a high degree of member state autonomy will enable to Europeans to “vote with their feet” for the government policies they prefer. Kupchan points out that nationalist pressures in the wealthier countries are likely to curb transfers to poor and inefficient economies. As a result, each national government will have stronger incentives to adopt policies that both promote economic growth and are attractive to migrants in other ways.

That said, I am not sure that the superstate project is as dead as I hope and Kupchan fears. The institutions created by recent European agreements such as the recent Lisbon Treaty may well survive the current crisis. If they do, European political elites can use them to gradually promote greater integration over time, even as public opposition wanes due to the return of relative prosperity. Repeated economic crises and bouts of populist opposition have not prevented long-term progress towards European integration over the last fifty years. It’s too early to say that this time will be different.

UPDATE: I should mention that Kupchan is also correct that the enlargement of the EU to include most of Eastern Europe over the last 15 years has made it more difficult to get consensus on deeper integration. On the other hand, it has also extended the benefits of free trade and freedom of mobility to tens of millions of additional people. The Eastern Europeans may be reluctant to accept the idea of a fully unified European nation. But they also strongly support the EU in its current form, if only because of the substantial economic benefits to them.

The Washington Metropolitan Area Transit Authority (WMATA) will no longer allow D.C. metro riders to exit the system with negative balances on their SmarTrip cards.  Instead, riders will have to use the cash-only “ExitFare” machines to pay the remaining fare.  Before, a rider could exit with a negative balance but could not use the card again before restoring a positive balance.  More here.

This new WMATA policy reminds one VC reader of 1959 the Kingston Trio hit. “M.T.A.” (aka “Charlie on the MTA”).  The song, written in 1948 by Jacqueline Steiner and Bess Lomax Hawes for Progressive Party candidate Walter O’Brien’s mayoral campaign, tells the story of a man trapped on the Boston MTA because he did not have enough money to pay the fare.  It begins:

Let me tell you the story
Of a man named Charlie
On a tragic and fateful day
He put ten cents in his pocket,
Kissed his wife and family
Went to ride on the MTA

Charlie handed in his dime
At the Kendall Square Station
And he changed for Jamaica Plain
When he got there the conductor told him,
“One more nickel.”
Charlie could not get off that train.

Here’s a site with the full lyrics and the history of the song, a Kingston Trio performance, and the Dropkick Murphys’ version, “Skinhead on the MBTA.”

Okay, now I can’t get my brain around it.  In my post below, I wondered about converse versus obverse.  Can someone do two things for me, in the language usage category.  First, give me a clear definition of the distinction between the two.

Second, and harder, I believe but maybe am wrong ... give me examples of how, in prose in which one is using them as linguistic metaphors rather than as technical terms in math or something genuinely physical, one would use each correctly.  Meaning by correctly, showing me the difference in when and how you would use one, and then the other.  The converse of a proposition is ... and the obsverse of a proposition is ... and the difference between the is ...  but then give me some examples from a more realistic setting, not just speaking abstractly of “propositions.”

I wonder if I have been abusing these terms all my life.

My Washington College of Law colleague Robert Tsai points me to an interesting Huffington Post article  by Anis Shivani on new directions for university presses.  I have a somewhat more critical take on this, in the sense of an interest in the economic and business models driving the presses as they move in different directions.

For example, I wonder how falling costs of producing books and different and cheaper distribution models via Amazon interacts with a relative decline, at least among senior law professors, in the prestige of law review articles in favor of books.  I wonder about shifts in the hiring, promotion, tenure, and lateral process and ways in which that drives a cycle of academic production — at least among law professors — of crank out articles, repackage as book, start cycle again — but without it being clear to me, at least, that there is great value added in putting the articles between hard or soft covers.  We tell ourselves that we are pulling together a handful of articles into a unified book-y whole, but, well, I wonder how much it is simply driven by a combined shift in the prestige markers within our academic world and shifts downward in the cost of production, along with dissatisfaction with the student law review publishing model.

Is that a bad thing?  The sometimes assumed frivolity and waste of publishing in humanities, social science, and law — the purely critical story is not all there is to it, by any means.  I, for one, do look forward to a revival of the humanities as a source of meaning.  The availability of an increasing number of scholarly books at a much cheaper price than, well, Cambridge UP’s sticker-shocker numbers is a terrific thing.  It takes into account lower productions costs, the idea that university libraries are not the only places to find these books, and a host of other things.  That many of these books are deliberately aimed at a wider audience than the university library is a feature of many of these new business models; that will inevitably mean more popular titles.  It will inevitably mean a certain amount of wishful marketing ... frankly unreadable academic tomes with exciting titles, cool covers, and misleading blurbs.  But I’m not convinced at all that these will crowd out traditional academic monographs.

Those are mostly questions I have within the world of academic law publishing, however, while Shivani’s post is on university presses more broadly.  It is worth reading in part just to get a sense of the ways in which presses are extending themselves, and also because it might give some readers a sense of where to turn to for particular varieties of books, and for authors among us to get a sense of what presses might be suitable for what ventures.

Speaking of blurbs, I’m somewhat surprised that as a marketing strategy, academic writers do not take a page from the marketing of that great work of 1990s fiction, A.A. Gils Sap Rising. Reviews were either wildly positive or wildly negative ... so the publisher put them all on the back, including in alternation:

• “He writes so brilliantly.”
• “Extremely badly written, hideously and unamusingly obscene.”
• “A clever, sexy story.”
• “Frightful pile of garbage.”

And then it ended up with the laconic comment of the Times Literary Supplement (a venue for which I occasionally write, and for which this kind of plain, unadorned, Eric-Blair-would-approve-of-it prose makes me proud to be a TLS contributor):

• “This is a dirty book.”

In academic writing, however, one is not looking for this exactly, it is slightly different.  What one wants in academia is not a collection of wildly for and wildly against.  Because academic writers are generally trapped — self-stranded, to be precise — in cul-de-sacs of like-minded academics, no one is much impressed by the log-rolling blurbs of one’s confreres.  But for a converse (or do I mean ‘obverse’?) reason, no one will be much impressed by the attacks of one’s enemies, either.  What one wants is what so much of contemporary academia is out to deny — except when it comes to what people say about one’s own academic work — viz., that I utterly disagree with it and indeed at some profound level think it deeply mistaken and even wrong, but alas I cannot deny the sheer intellectual power, unaparalleled learning and erudition, and brilliance heft of this work.

Endorsement from outside one’s epistemic community, in other words, on the basis of an ideal of neutral, objective quality that we long for, when it comes to our own stuff, but within academia don’t really accept.  We deny its validity — but then want its validation.

The Gainesville Sun site reports:

The city of Gainesville has denied Dove World Outreach Center’s application for a burn permit to set fire to copies of the Quran on Sept. 11, but the church says it plans to burn the holy books anyway.

Gene Prince, interim chief of Gainesville Fire Rescue, said Wednesday that under the city’s fire prevention ordinance, an open burning of books is not allowed....

Deputy Chief Tim Hayes, who serves as the department’s fire marshal, said he and an investigator went to the church’s 20-acre property on Northwest 37th Street earlier this month to determine what the burn would entail.

Under the fire ordinances the City Commission adopted last year, bonfires aren’t allowed without a permit, Hayes said....

“It wouldn’t matter what the book is they’re burning,” [Hayes] said....

The relevant article of the Gainesville, Florida, Code of Ordinances is here. It indeed bans “outdoor burning” and “open burning” of various things, including “Newspaper” and “Corrugated cardboard, container board, office paper.” (Barbecues and certain other fires are permitted.) Of course, if the church wanted to burn the books indoors — with proper ventilation, one would hope — it could still do so, even if it broadcast the event on streaming video. For examples of outdoor fire bans being applied to flag burning, see this story and City of Columbus v. Meyer (Ohio Ct. App. 2003). City of Columbus v. Meyer seems on point here, and also seems to be correct.

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

The business section of today’s Wall Street Journal features a lengthy profile of GMU economics professor Peter Boettke. It also describes the resurgent interest in Austrian economics. Entitled Spreading Hayek, Spurning Keynes–Professor Leads an Austrian Revival, it begins this way:

Peter J. Boettke, shuffling around in a maroon velour track suit or faux-leather rubber shoes he calls “dress Crocs,” hardly seems like the type to lead a revolution. But the 50-year-old professor of economics at George Mason University in Virginia is emerging as the intellectual standard-bearer for the Austrian school of economics that opposes government intervention in markets and decries federal spending to prop up demand during times of crisis. Mr. Boettke, whose latest research explores people’s ability to self-regulate, also is minting a new generation of disciples who are spreading the Austrian approach throughout academia, where it had long been left for dead.

To these free-market economists, government intrusion ultimately sows the seeds of the next crisis. It hampers what one famous Austrian, Joseph Schumpeter, called the process of “creative destruction.”

Governments that spend money they don’t have to cushion downturns, they say, lead nations down the path of large debts and runaway inflation.

Eight decades ago, in the midst of the Great Depression, the Austrian school and its leading scholar, Friedrich A. von Hayek, fell out of favor relative to the more activist theories of John Maynard Keynes. The British economist’s ideas, which called for aggressive government spending during recessions, triumphed then and in the decades since, reflected most recently in measures like the $814 billion stimulus package. Austrian adherents were marginalized, losing influence in prominent journals and among policy makers.

But as the economy flounders, debt mounts and growth—revised downward Friday—flags, Mr. Hayek and his Austrian-school adherents like Mr. Boettke are resurgent as their views resonate with more people.

“What I’m really worried about is an endless cycle of deficits, debt, and debasement of currency,” Mr. Boettke says. “What we’ve done is engage in a set of policies that’s turned a market correction into an economy-wide crisis.” Others seem to agree. Mr. Hayek’s 1944 classic, “The Road to Serfdom,” became the top-selling book in June on Amazon.com. The Austrian think tank Foundation for Economic Education had to turn students away this summer from its overflowing seminars.

Of course, economic theory ebbs and flows. The Austrian school surged along with inflation and unemployment in the 1970s. By the 1980s, free-market ideas ushered in the Reagan Revolution. But the success faded as inflation was successfully controlled by central bankers and government spending actually rose during the Reagan years. Besides, no one figure emerged as the leader of a fractious group of economists averse to central planning.

Mr. Boettke has come as close as anyone in recent years. In the last decade at George Mason, he has helped recruit the Austrian school’s leading scholars and drawn students from around the world. Roughly 75% of his students have gone on to teach economics at the college or graduate level.

Mr. Boettke “has done more for Austrian economics, I’d say, than any individual in the last decade,” says Bruce Caldwell, an editor of Mr. Hayek’s collected works.

There is much more. Way to go Pete!

[If the link above does not work or you are blocked from reading the whole article because you are not a WSJ subscriber, try here, then use the email button on that page to send yourself the article. You will get an email with a link good for a week.]

That’s the word of the day, which I just ran across for the first time: messuage.

From today’s In re the Petition of Theresa Goudeau to Adopt a Minor Child (Ga. Ct. App.), 2010 WL 3369363 (some paragraph breaks added) (opinion not yet on any free online site, to my knowledge). I should say that the trial court’s decision to take a child away from foster parents because they’re an unmarried couple — and to deny the foster mother’s adoption petition because she’s living with her boyfriend — appears to me to be not only against Georgia law but also cruel. Whatever might be the merits of a preference for married parents over unmarried parents in such matters, the court of appeals was surely right that “to remove [a nearly 3-year-old girl] from the only family she has ever known would be ‘devastating’ to the child.” 

The trial court’s response that “It cannot be in a child’s best interest to be placed in a household which the courts of this state have condemned as immoral” strikes me as deeply inadequate. And any argument that a policy of barring unmarried couples from being foster parents (or barring unmarried people with live-in lovers from being adoptive parents) would be good for other children in the future also strikes me as unsound: It’s not like our system is so awash in would-be foster and adoptive parents who are willing to raise babies born with cocaine in their systems that we can afford to reject apparently eminently loving and effective parents. Again, the matter might be different if we were considering a preference for married parents over unmarried ones, when there was a choice to be made. But that does not seem to be the case here, or in many other situations.

In any case, here’s the appellate court’s discussion of the trial court’s reasoning:

In a written order issued a few weeks later on March 12, 2010, the superior court denied the petition for adoption and held that Goudeau and Lovett should not have physical custody of A.C. because of their relationship with each other. The court found no common law marriage existed between Goudeau and Lovett and found that clear and convincing evidence established they were “living in an immoral, meretricious relationship, ... and that the adoption and their continued custody is inappropriate.” Quoting from cases involving illegal contracts, change of custody and visitation cases between divorced parents, and criminal statutes prohibiting sodomy, fornication, and adultery, the court held that allowing a child to be adopted by an unmarried person living with someone else violates Georgia’s “public policy,” which favors the institution of marriage. The court continued:

DFACS has adopted a policy, in contravention of Georgia law, that persons living in meretricious relationships may serve as foster parents and adoptive parents. DFACS’ Adoption Services Manual (March 2007) expressly confirms this policy by requiring “significant others” to attend [adoption orientation and training]. DFACS’ policy violates the established public policy and laws of this state favoring the institution of marriage, and declaring meretricious relationships as immoral. Georgia recognizes the legitimacy of married couples and single individuals. It does not recognize any other status, regardless of the mores of some members of society who have thrown off long-standing social, moral, ethical and religious constraints. DFACS’ policy offends the laws of this state, the sensibilities of this court, and the common conscious [sic] of the moral, ethical and religious citizens of this state. (Emphasis in original.)

And here is a longer excerpt from the appellate decision:

Continue reading ‘Living in Sin and Judicial Activism’ »

I don’t often do job postings here, but this is a particularly cool position for readers with experience working on the Hill:

Active Silicon Valley Democrat seeks senior technology advisor for fast-paced legislative office. Candidates should possess expertise in technology policy, telecommunications policy, or intellectual property. Portfolio also includes, taxes, financial services, and small business. Candidates should be pro-active, hard-working, and collegial. Candidates should have a minimum of three years Hill experience, and an advanced degree. Law degrees preferred but not required. This is not an entry level position. Salary commensurate with experience. If interested, please send resumes and cover letters to technologypolicyLA@yahoo.com

Today the U.S. Court of Appeals for the Federal Circuit affirmed the Special Master’s finding that plaintiffs had failed to demonstrate any link between childhood vaccines and autism or autism spectrum disorders.  More from BLT here.

I’ve previously blogged on the efforts to link autism and vaccines here, here, here, and here.

It’s a big week for climate change litigation.  In addition to the SG filing I noted below, the plaintiffs in Comer v. Murphy Oil, a public nuisance suit against multiple energy companies, have filed a petition for a writ of mandamus with the Supreme Court in an effort to revive their litigation.  It’s an interesting and unusual request, but this has been an interesting and unusual case.

Here’s some background.  The initial suit alleged that defendant energy companies’ contributions to global climate change contributed, in turn, to the intensity of Hurricane Katrina.  The district court dismissed on standing and political question grounds.  A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit reversed, rejecting the political question claim and finding the plaintiffs had standing to assert inter alia their private and public nuisance claims.  The Fifth Circuit then agreed to hear the case en banc, and issued an order vacating the panel decision.  But then one of the nine judges on the en banc panel recused, leaving the court without an en banc quorum.  As a consequence, the court dismissed the case, claiming that the absence of a quorum left it no other choice and (here’s the kicker) prevented it from reinstating the since-vacated original panel opinion.  The Court’s order, including two dissenting opinions, is available here.

This placed the plaintiffs in a bit of a tough spot — hence the petition for a writ of mandamus asking the Supreme Court to direct the Fifth Circuit, if it still lacks an en banc quorum, to reinstate the appeal and return it to the original panel.   I was no fan of the fifth Circuit panel’s opinion, but this certainly seems like an inappropriate way to end a case, and would appear to deprive the plaintiffs of their appeal of right.  Definitely one worth watching.

I’ll post a link to the petition when I find it online.  In the meantime, I’ve copied the questions presented below the jump.

Continue reading ‘Writ of Mandamus Sought in Comer v. Murphy Oil’ »

This is a few months old, but still pretty funny: from The Onion. Thanks to reader John Ellis for the link.

The environmental law community is buzzing over a brief filed by the Solicitor General’s Office this week on behalf of the Tennessee Valley Authority in American Electric Power v. Connecticut.  As reported by the Washington Post, the WSJ’s Washington Wire, and Greenwire, environmentalist groups are shocked and dismayed by the SG’s decision to enter the case.  “Obama Sides with Polluters” reads the title of a blog post by UCLA’s Jonathan Zasloff at Legal Planet.

In AEP, a panel of the U.S. Court of Appeals for the Second Circuit (that initially included then-Judge Sonia Sotomayor) allowed several states and private groups to pursue public nuisance claims under federal common law against a handful of the nation’s largest utilities, including the TVA, for their contribution to global warming.  Among other things, the court held the states had standing and that their nuisance claims were not displaced by federal regulatory authority over greenhouse gas emissions under the Clean Air Act.  This suit, like others filed elsewhere, has increased pressure on utilities and others to accept federal climate change legislation.

The SG’s brief urges the Supreme Court to toss out the Second Circuit’s opinion and send it back to the Second Circuit:

this Court should grant certiorari, vacate the judgments of the court of appeals, and remand to enable the court of appeals to consider two questions in the first instance: (1) whether, independent of Article III standing requirements, plaintiffs’ suits should be barred as a matter of prudential standing; and (2) whether, in light of multiple actions that EPA has taken since the court of appeals issued its decision, any otherwise cognizable federal common-law claims here have been displaced.

Unlike some, I don’t find the SG’s decision to file the brief all that surprising, and I find the legal arguments it makes on behalf of the TVA (one of the defendants in the original suit) rather modest and quite sensible. I explain below the jump

Continue reading ‘The SG’s Brief in American Electric Power v. Connecticut’ »

I was on C-SPAN’s Washington Journal program this morning discussing GPS surveillance and the Fourth Amendment. You can watch the program here.

Expatica reports:

A Dutch appeals court on Thursday fined an Arab organisation in the Netherlands 2,500 euros [with 1,500 euros suspended] for causing “unnecessary offence” in publishing a Holocaust-denying cartoon[, which depicts the Nazi Holocaust as a figment of Jewish imagination]....

“The suggestion that [the Holocaust] may have been contrived or exaggerated by victims is extraordinarily offensive for the victims and their surviving relatives, in this case the Jews[,” wrote the court.]

The Dutch leg of the Arab European League (AEL) re-published the cartoon on its website last year, saying it wanted to point out double standards in society.

It was reacting to a decision by Dutch prosecutors not to put far-right lawmaker Geert Wilders on trial for distributing controversial Danish cartoons of the Prophet Mohammed.

But appeals judges agreed with prosecutors that the cartoon was more offensive than could be justified by the debate...

Please let me know if you can point me to the court decision (whether in English or in Dutch), or to the cartoon. Thanks to Victor Steinbok for the pointer.

Given that law school classes have or are about to start for many readers, I thought I would post a quick link to a new book of mine on contract law. It is written to provide an overview or “big picture” of contracts that discusses as many of the classic cases you are likely to encounter in law school as possible. It has minimal footnotes and I tried hard to make it engaging and accessible. And it is pretty cheap too. It might be just the road map to contracts you are looking for.

Here is the editorial description:

The Oxford Introductions to U.S. Law: Contracts provides students with ready access to the basic doctrines of contract law, the story behind their evolution, and the rationales for their continued existence. An engaging book that allows students to grasp the “big picture” of contract law, it is organized around the principle that lies at the heart of contracts: consent. Beginning with the premise of “consent,” the book provides a cohesive framework in which to understand the various aspects of contract law.

On a somewhat embarrassing note, this description, which was likely supplied to Amazon by OUP begins, “Written by the leading expert in the field.” This is an obvious exaggeration. While I am certainly A leading expert in the field, I am certainly not THE leading expert in the field. I suspect this is the work of an overzealous copywriter. 

UPDATE: I have contacted OUP and they tell me a correction of “the” to “a” is now in the pipeline.

We discussed the site The Legal Workshop when it opened in April 2009, and I thought folks might appreciate a reminder. The site features short summaries of new law review articles published in participating journals. 

Here’s one from the “now I’ve seen everything” department. 

In United States v. Torres-Sobrado, — F.Supp.2d –, 2010 WL 3290958 (D. Puerto Rico 2010), handed down last week, twelve defendants allegedly dressed up as police officers and pulled over motorists for traffic violations. One of the twelve was an actual police officer, but apparently the rest were not. They would then look for drugs, and when they found drugs they would keep the drugs and later sell them. In one instance, they specifically targeted a man who they knew would be traveling with 14 grams of cocaine. One of the stops led to a carjacking, and the driver died: A range of criminal charges were filed. One of the charges accuses the defendants of violating the driver’s Fourth Amendment rights by stopping him under color of law and then seizing his cocaine. 

In last week’s decision, the defendants moved to dismiss this count of the indictment as a matter of law. They made two arguments. First, the defendants argued that they are not real police officers, and therefore are not state actors under Fourth Amendment law. Second, they argued that even if they were state actors, they did not violate the Fourth Amendment because their stop and seizure complied with Fourth Amendment standards. The stop was based on probable cause, the drugs were in plain view, etc. 

Judge Besosa started with the second argument, and I think it’s fair to say that he found it unpersuasive:

The argument[] . . . is, quite simply, nonsense. Even if the property taken from the victim is property that is not constitutionally protected, and even if the movants were accompanied during the traffic stop by a “real” member of the Puerto Rico Police Department acting on a tip from a reliable source, the defendants’ stop, detention, and search of Andrades were illegal according to the allegations in Count Six. Defendants are charged with staging a false traffic stop, motivated not by any attempt on the part of real law enforcement officers to enforce real laws, but motivated by a goal to procure drugs for resale and profit. For the defendants to argue that they had probable cause for the actions they are charged with, despite the fact that they are charged with staging that stop, despite the fact that neither is a real law enforcement official, despite the fact that they allegedly dressed up as law enforcement officials, is stunningly irrational and baseless. The Court rejects these arguments outright.

(emphasis in original).

Judge Besosa then rejected the first argument, that the defendants were not acting as state actors for Fourth Amendment purposes:

As to the defendants argument that they did not act under color of state law because they are private citizens and because there was only one state actor involved in the indictment alleged, the case law is clear. The Supreme Court has held that to act under color of state law “does not require that the defendant be an officer of the State,” and that “[p]rivate persons, jointly engaged with state officials in the challenged action, are acting [sic] ‘under color’ of law for purposes of § 1983 actions.” Dennis v. Sparks, 449 U.S. 24, 28, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980). Courts have also ruled that “[t]he color of law element may be satisfied by the fact that an official gains access to the victim in the course of official duty” as is the case here. U.S. v. Giordano, 442 F.3d 30, 43 (2nd Cir.2006); See U.S. v. Walsh, 194 F.3d 37, 51 (“The relevant question ... is not whether the actual abuse was part of the official’s duties but, rather, whether the abuse was ‘made possible only because the wrongdoer is clothed with the authority of state law.’ ” (quoting U.S. v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941). In United States v. McClean, 528 F.2d 1250 (2d Cir.1976), the Second Circuit Court of Appeals held that police officers acted under color of law when they stole proceeds of drug sales from the suspects in their investigations in violation of section 242.

The United States accused the defendants of aiding and abetting others to violate Andrades’s right to be free from unreasonable searches and seizures by submitting him to a staged traffic stop in which, literally, they wore the colors of the state. As the Supreme Court once stated, “[i]t is clear that under ‘color’ of law means under ‘pretense’ of law” and, thus, “[a]cts of officers who undertake to perform their official duties are included whether they hew to the line of their authority or overstep it.” There is no doubt that Count Six notifies the defendants adequately of the allegations against them pursuant to section 242 and states adequately the elements of that charge.

This is a very strange case, but I’m not entirely sure Judge Besosa is right. I’d want to know more facts to be able to know whether the defendants were state actors for Fourth Amendment purposes. The First Circuit uses a three factor test to determine if a private party acts as a government agent. Courts look at “the extent of the government’s role in instigating or participating in the search, its intent and the degree of control it exercises over the search and the private party, and the extent to which the private party aims primarily to help the government or to serve its own interests.” United States v. Pervaz, 118 F.3d 1, 6 (1st Cir.1997). I’d need to know more facts to know how these factors should apply, but it’s hardly obvious that they render the entire group state actors. 

It’s true that the Second Circuit held that real cops who did something similar were state actors in McLean, but in that case the defendants were real cops who were on-duty. Here 11 of the 12 defendants are just criminals dressed up as cops; while wearing the uniform creates the impression of a state actor, I’m not aware of any cases indicating that appearance trumps reality in determining who is a Fourth Amendment state actor. I’m not sure of the right answer here, but I don’t think the answer is as simple as Judge Besosa suggests. 

Similarly, if we accept that the defendants are state actors, I’m not sure why their alleged compliance with Fourth Amendment rules shouldn’t be a defense. Judge Besosa calls this argument “stunningly irrational,” but that’s because he assumes that the key issue is the defendants’ intent: “Defendants are charged with staging a false traffic stop, motivated not by any attempt on the part of real law enforcement officers to enforce real laws, but motivated by a goal to procure drugs for resale and profit.” But under Whren v. United States, subjective intent in making a stop and seizure is irrelevant. Maybe there is some outer limit to that principle that makes a “fake” traffic stop different, but it’s not obvious to me. So if the defendants really are state actors, then it’s not clear that their argument is so “stunningly irrational.” I should add that this hinges on whether the steps actually did follow the Fourth Amendment, which is quite unclear from the short opinion: That should be an issue for trial, not pre-indictment dismissal.

Thanks to FourthAmendment.com for the link.

Apparently a successful cause of action, according to today’s Wall Street Journal Law Blog:

Law Firm Hamburger War Heats Up

Powerhouse D.C. law firm Steptoe & Johnson has won an order to force a neighboring burger restaurant to stop omitting hamburger fumes into the firm’s air intake system.

See and Post Comments:

http://blogs.wsj.com/law/2010/08/26/law-firm-hamburger-war-heats-up?mod=djemlawblog_t

The normal way to indicate omitted text is using three dots (“. . .”). But sometimes, especially in some documents filed with the Supreme Court, I see “* * *” used instead. Any sense of why this is so, and which tends to be preferred, and by whom? Is there some difference in meaning that I’m missing? The Supreme Court’s own opinions generally (or perhaps even always, or almost always) use the “. . .” ellipsis marker rather than the “* * *” marker.

Note: There are various guidelines about how to indicate omitted paragraphs, omitted text at the start or end of sentences, and so on; I’m not discussing that here. Likewise, I’m not discussing the centered row of three asterisks used as a delimiter between parts of a document, especially before the conclusion of the document.

UPDATE: Various commenters, as well as my Mayer Brown LLP colleague Charles Rothfeld, make things clear for me: This is the practice of the Solicitor General’s office, which was then retained by many of its alumni, and emulated by others (as the styles of highly regarded organizations often are).

Here is also a suggestion, based on a suggestion offered to me by Charles Rothfeld: If either a court or a prominent repeat litigant before the court — the Solicitor General’s office — routinely uses “* * *,” it’s good to use that. But if the usage is uncommon before a particular court, it’s better to stick with the more common “. . .,” since the asterisks might seem confusing, distracting, or pretentious. As usual, let Horace be your guide.

Here is a nice explanation of how the commerce power has been expanded over the years, which features John Eastman, Erwin Chemerinsky . . . and E.G. Marshall! I might quibble a little with how Wickard and Raich are interpreted here, but on the whole I found this to be nice way to explain to nonlawyers why Congress thinks it has virtually unlimited power.

I tried using Survey Monkey for my two polls below, given the weird formatting issues I’ve been having with Pollhost, but I didn’t realize that the software puts very strict limits on how the free software is used (it only registers 100 responses per poll, and charges $200 per year if I want to use unlimited responses). That’s pretty useless for my purposes (or very expensive). So I am suspending the polls, and instead just posting the results of the first 100 responses. It’s not that revealing, given the low number of replies, but that’s the Internet for you.

First, conservatives had the following responses to why liberals have liberal views:

They lack the right values. 24%
They lack the right religious beliefs. 8.0%
They’re not as smart as conservatives. 8.0%
Liberals tend to engage in “groupthink.” 44%
They probably grew up around other liberals. 58%
Political issues are difficult, and liberal views are reasonable (even if I think they are wrong). 61%

Liberals had the following responses to why conservatives have conservative views:

They lack the right values. 19%
They have incorrect religious beliefs. 20%
They’re not as smart as liberals. 15%
Conservatives tend to engage in “groupthink.” 28%
They probably grew up around other conservatives. 63%
Political issues are difficult, and conservative views are reasonable (even if I think they are wrong).75%

For some reason, the only comments collected by the software were the comments by conservatives about liberals. These are of limited use without knowing the flip side of what liberals thought about conservatives, but here they are after the jump:

Continue reading ‘Oops, Bad Choice of Polling Company’ »

Here’s a quick poll for readers who self-identify as politically conservative. You can click on as many reasons as you think apply, and can enter any additional reasons not mentioned.

[Poll Suspended]

Here’s a quick poll for readers who self-identify as politically liberal. You can click on as many reasons as you think apply, and can enter any additional reasons not mentioned.

[Poll Suspended]

The faculty hiring season is well under way.  The first distribution of AALS FAR forms are out, appointments committees are dissecting reams of resumes and scheduling interviews, and pre-meat-market anxiety is building.

Do faculty hiring committees focus on the “right stuff” in prospective faculty hires?  Georgetown adjunct (and Sentencing Commission deputy staff director) Brent Newton thinks not.  In a new paper he argues that too many schools are obsessed with impractical scholarship at the expense of student education.  As summarized here and here, Newton argues that law schools over-emphasize elite academic credentials at the expense of practical knowledge and experience.

Continue reading ‘Do Law Schools Seek the “Wrong Stuff”?’ »

The Sunlight Foundation reports on Rep. Maxine Waters’ (D-CA) innovative approach to raising campaign funds: selling endorsements to other politicians.

The Los Angeles-area representative, who faces ethics charges in the House for intervening on behalf of a bank in which her husband had invested heavily, has found a way to take large sums of money from state and federal political committees that seemingly exceed FEC contribution limits, but are perfectly legal under the federal election law. The Waters campaign did not respond to requests for comment.

Waters, who has been in Congress for more than three decades, routinely sends out mailers endorsing a list of other candidates and ballot initiatives she supports. In the 2010 cycle, she has raised more than $295,550 out of a total of $497,300 through these mailers. And getting on one of her slate mailers doesn’t come cheap—to be featured on the “Citizens for Maxine Waters” slate, candidates pay anywhere between $250 and $45,000.

Sportswriter Jeff Passan describes evidence indicating that billionaire Miami Marlins owner Jeff Loria may have lied about the team’s finances in order to secure massive public subsidies for the construction of the Marlins’ new stadium [HT: VC reader Eric Robinson]:

A look at the leak of the Marlins’ financial information to Deadspin confirmed the long-held belief that the team takes a healthy chunk of MLB-distributed money for profit. Owner Jeffrey Loria and president David Samson for years have contended the Marlins break even financially, the centerpiece fiscal argument that resulted in local governments gifting them a new stadium that will cost generations of taxpayers an estimated $2.4 billion. They said they had no money to do it alone and intimated they would have to move the team without public assistance.

In fact, documents show, the Marlins could have paid for a significant amount of the new stadium’s construction themselves and still turned an annual operating profit. Instead, they cried poor to con feckless politicians that sold out their constituents.

The ugliness of the Marlins’ ballpark situation is already apparent, and the building doesn’t open for another 18 months. Somehow a team that listed its operating income as a healthy $37.8 million in 2008 alone swung a deal in which it would pay only $155 million of the $634 million stadium complex. Meanwhile, Miami-Dade County agreed – without the consent of taxpayers – to take $409 million in loans loaded with balloon payments and long grace periods. By 2049, when the debt is due, the county will have paid billions.

More on the Marlins stadium subsidies from Matt Welch here.

Even if the Marlins’ financial state were as tenuous as Loria claimed, it still would not justify massive government subsidies for a new stadium. Stadium subsidies almost never create benefits for the community that come even close to offsetting the huge costs. Professional baseball is a large-scale industry that can and should pay for its own stadiums. The fact that MLB franchises sell for hundreds of millions of dollars whenever one comes up for sale suggests that the industry is considerably more profitable than subsidy-seeking owners would have us believe. But if team owners find they aren’t making a profit, they should cut costs and work to become more efficient, just like any other business. For example, they could limit costs by adopting a salary cap, as have the NBA, National Football League, and the National Hockey League.

In fairness to Loria and the Marlins, they might have been able to secure massive government subsidies even without lying about their profits. The New York Yankees are the most lucrative franchise in baseball. But that didn’t prevent them from raking in hundreds of millions of dollars in government subsidies for the new Yankee Stadium that opened last year. If Passan’s figures are correct, the Marlins’ stadium subsidies may actually surpass the record set by the Yankees. As a Red Sox fan, I am reluctant to admit it. But the Marlins may have outdone baseball’s Evil Empire in feeding at the public trough.

As regular VC readers know, I love baseball. But those taxpayers who don’t share my interest in the sport should not be forced to subsidize it. It is long past time to make billionaire sports team owners pay for their own stadiums.

The case is Facebook, Inc. v. Power Ventures, Inc., 2010 WL 3291750 (N.D. Cal 2010) (Ware, J.), handed down July 20. It’s largely a replay of the legal issues raised by the Lori Drew case but under the California computer crime statute, Cal. Penal Code Sec. 502. In the case, Facebook sued a company (Power Ventures) for having accessed Facebook in ways that are prohibited by Facebook’s Terms of Use. Facebook argued that the Terms of Use violation violated the state statute, which punishes one who “knowingly accesses and without permission takes, copies, or makes use of any data from a computer, computer system, or computer network.” The Electronic Frontier Foundation filed an amicus brief arguing that the court had to construe the state statute narrowly to exclude TOU violations under the void for vagueness doctrine. The District Court agreed, and held that the statute is violated only when some sort of technical barrier is breached. The court’s analysis after the jump:

Continue reading ‘District Court Adopts “Technical Barriers” Approach to California Computer Crime Law’ »

In a post yesterday, I described why I think Judge Royce Lamberth’s decision on Monday that the Dickey-Wicker Amendment prohibits the federal government from funding human embryonic stem cell (hESC) research is wrong on the merits. Technically, however, the decision was not a ruling on the merits. Lamberth actually granted the plaintiffs’ motion for a preliminary injunction. Because the issue is a pure question of statutory interpretation, and because the opinion in no way suggested that it was tentative in nature, it seems almost certain that Lamberth will eventually replace the preliminary injunction with a permanent one. But the government is entitled to another day in court before this can happen.

Lamberth’s grant of the preliminary injunction is even more troubling as a legal matter than his quasi-merits determination. To win a preliminary injunction, the plaintiff must show (1) a substantial likelihood of success on the merits; (2) that the plaintiff will suffer “irreparable injury” in the absence of an injunction; (3) the injunction would not substantially harm other interested parties; and (4) that the injunction would further the public interest. The plaintiff must carry the burden of persuasion “by a clear showing.” Cobell v. Norton, 391 F.3d 251 (D.C. Cir. 2004).

Let’s take a look at Lamberth’s analysis of these four guideposts:

Although I do not agree with the judge’s analysis of merits (i.e., the meaning of the Dickey-Wicker Amendment), under his analysis, the plaintiffs would seem to have a substantial likelihood of success on the merits. 

The second question is whether, if the plaintiffs were to eventually prevail on the merits of their claim, a failure to enjoin the government from funding hESC research in the intervening period would cause them irreparable harm. Judge Lamberth finds that the plaintiffs “have met this high burden.”

The plaintiffs argue that the harm is that, as scientists who seek federal funding of their non-hESC research, they have to compete against a larger pool of grant applicants and have a reduced chance of winning funding as long as the government is handing out limited research dollars to hESC researchers. To support his conclusion that this constitutes irreparable injury, Judge Lamberth cites the D.C. Circuit’s prior holding in this case that the plaintiffs’ highly speculative claim of harm is sufficient to give the plaintiffs standing to maintain this lawsuit (a decision that I think is probably incorrect, but that is a different issue). But the standard for demonstrating “injury-in-fact” that is a requirement of standing is not the same as the irreparable injury standard; the preliminary injunction sought by the plaintiffs is an extraordinary remedy. First, the likelihood that the plaintiffs would actually be denied a grant that they would win were if not for the competition of the hESC researchers is quite speculative. Second, if this were to happen, they could be compensated after the fact. That is, should the plaintiffs ultimately prevail on the merits, the court could determine whether any unsuccessful grant proposals submitted in the intervening period had earned a high enough score in the NIH review process that they would have won funding were it not for the fact that hESC projects had not been considered. If the hESC projects squeezed out the plaintiffs project, and the hESC grants are found to be illegal, the court could then order the NIH to approve the plaintiffs’ grant proposals in question. The harm would indeed be reparable, and no rank speculation would be needed to establish its existence or severity.

Regardless of the harm that the plaintiffs will suffer should they ultimately prevail on the merits while the government is permitted to approve grants to hESC researchers in the meantime, Judge Lamberth realizes that in the preliminary injunction analysis this harm needs to be balanced against the hardship that will be suffered by others if the defendants ultimately prevail on the merits but are enjoined from making hESC grants in the intervening period. Here, Lamberth finds that the injunction “would not seriously harm ESC researchers because the injunction would simply preserve the status quo” and “the harm to individuals who suffer from diseases that one day may be treatable as a result of ESC research is speculative.”

There are two substantial flaws in this analysis. First, hESC researchers will suffer more harm from a preliminary injunction than non-hESC researchers will suffer from the lack of an injunction. The plaintiffs still might win NIH grants if an injunction is not granted — the NIH funds all kinds of disease research, including the type of adult stem cell research the plaintiffs apparently do, not just hESC research. But hESC researchers have no chance at all of winning funding if the injunction is issued. Judge Lamberth points out that hESC researchers can seek private funding even if an injunction is in place, but it is equally true that non-hESC researchers can seek private funding if the injunction is not in place! 

Second, it is inconsistent, to say the least, to dismiss the potential harm to disease-sufferers as the result of an injunction as speculative because “it is not certain whether ESC research will result in new and successful treatments for diseases,” while saying that the harm alleged by the plaintiffs is “not speculative.” hESC research might or might not cure diseases, and an injunction prior to a final decision on the merits might or might not slow down progress. But it is just as uncertain whether the lack of an injunction will actually cost the plaintiffs grants they would otherwise win. And while both types of harm are uncertain, the severity of the possible harm to disease-sufferers, who might lose their lives in the meantime, is clearly is much worse than the severity of the possible harm to the plaintiff-grant applicants.

Finally, Judge Lamberth finds that “the public interest weighs in favor of a preliminary injunction.” Why? Because it is the public interest for the courts and agencies to carry out the will of Congress. All Judge Lamberth does here is reiterate the first prong of the analysis; that is, because Lamberth believes the plaintiffs are right on the merits, it is the public interest to give them a preliminary injunction. Whatever factors the judge should take into account to determine the “public interest,” logic dictates that the inquiry must be something different than who the judge thinks is likely to prevail on the merits, a point that is already captured elsewhere in the analysis.

At the end of the day, the balance of hardships tilts strongly in the direction of hESC researchers and the patients who hope their work will lead to cures, not in the direction of the plaintiffs who might see their chances of winning a grant reduced. Regardless of who is right on the merits, the preliminary injunction should not have been granted. I am very confident that the D.C. Circuit will quickly reverse Judge Lamberth on this issue and allow the NIH to continue to make grants to hESC researchers while the case winds its way to a final judgment, first in Judge Lamberth’s court and then in the D.C. Circuit.