What is the etymological connection (as opposed to a legal or causal one) between negligees and negligence?
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In the comments to my “Some Religious Leaders Urging People to Delay Going to the Police with Child Sex Abuse Allegations?” post, a commenter asked:
Is there any reason you went to such effort to avoid mentioning which religion was involved?
Absolutely. I was hoping that people would do one of two things: (1) They would first think about the issue in the abstract, without letting their initial sympathies or hostilities towards the religious group influence their judgment. (2) If they did begin by making an assumption about which religious group was involved — an assumption that I suspect would have been inaccurate — and then read the story, they would see their assumption was mistaken, which might make them more cautious about such assumptions in the future.
Manipulative, I realize. But that’s just my dark inner nature. Bwahahaha.
If the account in this story (on the Asbury Park (N.J.) Press site) is accurate, it strikes me as quite troubling. The story reports that the religious leaders’ proclamation instructs people not to bring even criminal matters to the police (at least until they are brought to the religious authorities), and says that “it is forbidden [for religious group members] to continue to cooperate with them (secular courts) and to assist them in their efforts to pursue” coreligionists. That sounds like a recipe for frustrating justice, and making it less likely that criminals will be convicted and imprisoned.
Naturally, the authors of the proclamation have the First Amendment right to urge people to behave this way. But this doesn’t stop the urging from being harmful and wrong (though I’m happy to say that not all leaders of this religious group take this view). Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.
The Daily News Egypt reports:
Prosecutor General Abdel Meguid Mahmoud on Monday referred the publisher of Islamic books to a State Security Court on charges of contempt of the Christian religion.Publisher Ahmed Abdallah Abo-Islam, was charged for accusing Christians of fabricating the Bible and threatening social stability and security....
In [the complaint that triggered the referral, Coptic lawyer Naguib Gobrael, head of Egyptian Union for Human Rights,] said that “defamatory” copies of the Bible published by Al-Tanweer Center (The Enlightenment Center) “included allegations by Abo-Islam that ... this is not the authentic Bible and that the current Bible used among Christians is fabricated, modified, and full of contradictions.” ...
“The introduction of the book presented by Abo-Islam said that the Bible is not and has never been a Holy Book at all, and that the Church is deceiving Christians by labeling it ‘The Holy Book’ in gold,” said Gobrael.
“We are against any religious defamation whether Islamic or Christian, and Abo-Islam defamed a religion that is acknowledged by the Quran and the constitution, which is illegal according to Article 98,” he added.
Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.
This is the case I blogged about last year; an 11-judge Ninth Circuit en banc panel has just held (Millender v. County of Los Angeles) that the search was so clearly unconstitutional — “Because the challenged sections of the warrant were ‘so lacking in indicia of probable cause as to render official belief in its existence unreasonable’” — that the police officers were not shielded from liability by qualified immunity. For more details, please see this post or the opinion.
A few days ago I blogged about a question that some readers had asked: why hasn’t United States v. Arizona — the case in which the U.S. is challenging the constitutionality of Arizona’s law dealing with illegal immigrants — hasn’t been filed from the outset before the United States Supreme Court? Article III, section 2 of the Constitution provides, in relevant part (subclause numbers added),
The judicial Power shall extend [1] to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; [2] –to all Cases affecting Ambassadors, other public Ministers and Consuls; [3] –to all Cases of admiralty and maritime Jurisdiction; [4] –to Controversies to which the United States shall be a Party; [5] –to Controversies between two or more States; [6] –between a State and Citizens of another State, [7] –between Citizens of different States, [8] –between Citizens of the same State claiming Lands under Grants of different States, and [9] between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. [The Eleventh Amendment provided that [6] and [9] do not cover lawsuits against a state by a citizen of another state or a foreign citizen or subject. –EV]In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
In U.S. v. Arizona, “a State [is] Party,” so why doesn’t “the supreme Court ... have original Jurisdiction” (without regard to any “Regulations as the Congess shall make,” since that latter clause is applicable only to “the other Cases before mentioned”)?
As I mentioned at the time, I am not an expert on the law of federal jurisdiction, so I couldn’t speak to this with great confidence. But I offered some analysis, which you can read here. Some of my commenters (and particularly Andrew), though, helped educate me on this. Now it seems to me that my analysis missed the likely correct answer, which the Court gave in Cohens v. Virginia, 19 U.S. 264, 396–402 (1821): Original jurisdiction extends only to cases brought under the jurisdictional bases provided in those subclauses that expressly mention Ambassadors and State Parties, which is to say [2], [5], [6], and [9]. It does not extend to cases brought under other jurisdictional bases, such as cases arising under the federal Constitution or federal laws, that happen to have a State as a party.
From Judge Kleinfeld’s concurrence in the judgment in Spencer v. World Vision:
The core of Judge Berzon’s dissent is the idea that performance of activities that are often performed in a secular context cannot be religious. That is mistaken. When the Pope washes feet on the Thursday before Easter, that is not secular hygiene, and the Pope is not a pedicurist.
OK, not really (we’re not that good). But a player of the online role playing game Lineage II has brought such a suit against the game’s designers — and a federal court has denied a motion to dismiss, allowing the claim to go forward. For details, see the opinion, Smallwood v. NCSoft Corp. or the Wired article, but I quote below the court’s summary of the plaintiff’s factual allegations.
Note that the court rejected the fraud claims based on the supposed misconduct in wrongfully canceling the account and supposedly cheating the plaintiff out of $65 worth of play time. Rather, the court allowed the case to go forward focusing on the “failure to warn and defective product claims” (plus the defamation claims, but those are a separate matter).
I hope the court will ultimately throw the case out on summary judgment, after discovery has taken place. But that will be after defendants have to go to a great deal more litigation expense. It seems to me that such discovery should not be necessary, and that our tort law system should make clear that as a matter of law one can’t sue for producing allegedly addictive video games — just as one shouldn’t be able to sue a company for producing allegedly psychologically addictive book and movie series (think Star Trek), allegedly psychologically addictive board games (think how many people are obsessed with chess, Scrabble, or what have you), allegedly psychologically addictive sex toys, and the like.
Note, incidentally, that the court held that the possible remedies for negligence are likely very limited, because of game players’ contractual waiver of the game designer’s liability. But the court concluded that, under Texas law, gross negligence liability can’t be waived, so the plaintiff’s case makes sense only if the game company is grossly negligent — and the court held that the plaintiff did state a claim for such liability.
In any case, here are the allegations:
Plaintiff’s Second Amended Complaint alleges the following. Defendants designed and distributed interactive role playing internet games to the public, including the game “Lineage II.” In 2004 or 2005, Plaintiff opened three accounts, thereby becoming licensed to play Lineage II. The accounts were paid for by charge card, three months in advance. Plaintiff played Lineage II from 2004–2009 for over 20,000 hours. Plaintiff experienced great feelings of euphoria and satisfaction from persistent play, as did other users of Lineage II.Plaintiff became psychologically dependent and addicted to playing Lineage II. During the years that Plaintiff played Lineage II, the phenomena of psychological dependence and addiction to playing computer games was recognized by and known to Defendants. Defendants never gave Plaintiff any notice or warning of the danger of psychological dependence or addiction from continued play.
A Ninth Circuit panel issued three very interesting opinions on this subject today in Spencer v. World Vision, Inc. The opinions are long and detailed; if you’re interested in the issue, you should read them. But here’s the short summary:
1. “World Vision describes itself as ‘a Christian humanitarian organization dedicated to working with children, families and their communities worldwide to reach their full potential by tackling the causes of poverty and injustice.’” It is not affiliated with any particular church organization, but it is self-consciously Christian, and insists that its employees be Christian.
2. Title VII of the Civil Rights Act of 1964 bars religious discrimination in employment, but exempts (in § 2000e-1) religious discrimination by “a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such [entity] of its activities.” (This is separate from the bona fide occupational qualification exemption and the ministerial exemption; for more on those, see here.) Churches and sufficiently religious schools qualify; the question is whether religious charities that don’t focus on worship or education do.
3. Judge O’Scannlain offers this test: “a [A] nonprofit entity qualifies for the section 2000e-1 exemption if it establishes that it [B] is organized for a self-identified religious purpose (as evidenced by Articles of Incorporation or similar foundational documents), [C] is engaged in activity consistent with, and in furtherance of, those religious purposes, and [D] holds itself out to the public as religious.” (All prong lettering here and below is mine.)
4. Judge Kleinfeld, concurring in the judgment, offers this: “To determine whether an entity is a ‘religious corporation, association, or society,’ [note the exclusion of “religious ... educational institution[s], which Judge Kleinfeld would treat somewhat differently –EV] determine whether [B] it is organized for a religious purpose, [C] is engaged primarily in carrying out that religious purpose, [D] holds itself out to the public as an entity for carrying out that religious purpose, and [E] does not engage primarily or substantially in the exchange of goods or services for money beyond nominal amounts.” (The lettering doesn’t start at A, because my point here is to note the similarities between the O’Scannlain and Kleinfeld tests.)
5. Judge Berzon, dissenting, seems to offers this: “Congress used the terms ‘religious corporation, association ... or society’ ... to describe a church or other group [F] organized for [F1] worship, [F2] religious study, or [F3] the dissemination of religious doctrine.” (I assume this is the exclusive test that the opinion proposes; please correct me if I’m misreading it.)
The policy arguments are too long and detailed for me to summarize here; please read the opinions and see what you think of them. Thanks to Prof. Rick Hasen for the pointer.
I’m about to post something about an interesting new case on religious charities and employment discrimination law, so I thought it would be helpful to post this general summary I wrote a while back; I also hope to refer to it in future posts.
Federal job discrimination law provides three sets of religion-related rights to employees, public or private, when the employer has 15 or more employees. Similar state laws generally provide similar rights. (I set aside disparate impact claims arising outside the religious accommodation context, and religious affirmative action programs; these come up very rarely.) There are also three possible religion-specific defenses that employers can raise, which I discuss below. Let me begin with the three sets of employee rights:
1. The right to be free from religious discrimination: Employers generally may not treat employees differently because of their religion (or lack of religion). 42 U.S.C. § 2000e-2(a).
2. The right to reasonable religious accommodation: An employer may have to give religious employees special exemptions from generally applicable job requirements if the requirements interfere with an employee’s sincerely felt religious obligations and such an exemption doesn’t impose “undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j); TWA v. Hardison (1977), 432 U.S. 63 (1977). The EEOC and most lower courts have agreed that this applies not just to religious objectors but also people who have “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views,” 29 C.F.R. § 1605.1 (adapting the Welsh v. United States standard). See, e.g., Protos v. Volkswagen of Am., Inc., 797 F.2d 129 (3d Cir. 1986).
3. The right to be free from a religiously hostile environment: Employers are liable for damages when the employer, its employees, or its patrons engage in conduct or speech that is
- “severe or pervasive” enough
- to create a “hostile, abusive, or offensive work environment”
- based on religion
- for the plaintiff and
- for a reasonable person.
The theory is that tolerating behavior that creates a hostile environment constitutes discrimination in the “terms [and] conditions ... of employment,” 42 U.S.C. § 2000e-2(a). Courts have applied hostile environment law both to speech said directly to the offended person and to speech (signs, e-mails, coworker conversations, and the like) seen or overheard by the person. Courts have generally said that the “severe or pervasive” requirement is usually not satisfied by a single instance of offensive speech, but can be satisfied by several incidents over the span of weeks or months.
Continue reading ‘A Brief Guide to Federal Antidiscrimination Law and Religion’ »
A reference librarian at a public library passes along this story, which she reports happened to her (though several decades ago). A patron came to the reference desk and said, “I’m doing some legal research, and I need to track down a legal book.” “What’s the author and the name?,” the librarian asked. “I don’t know the author,” the patron responded, “but the title is Ibid..”
“Is America Islamophobic?,” asks Time magazine. The lead story is abridged online here. I have little opinion on the title question, partly because I’m not a public opinion researcher, and partly because I don’t know what exactly “Islamophobic” means. And paragraphs such as this don’t help much:
Although the American strain of Islamophobia lacks some of the traditional elements of religious persecution — there’s no sign that violence against Muslims is on the rise, for instance — there’s plenty of anecdotal evidence that hate speech against Muslims and Islam is growing both more widespread and more heated. Meanwhile, a new TIME–Abt SRBI poll found that 46% of Americans believe Islam is more likely than other faiths to encourage violence against nonbelievers. Only 37% know a Muslim American. Overall, 61% oppose the Park51 project, while just 26% are in favor of it. Just 23% say it would be a symbol of religious tolerance, while 44% say it would be an insult to those who died on 9/11.
So 46% of Americans believe Islam is more likely than other faiths to encourage violence against nonbelievers — which, as best I can tell, is an accurate belief. I don’t think most Muslims support violence against nonbelievers. But it seems to me that Islam as we see it in the world today is more likely than most other major faiths to encourage violence against nonbelievers, at least if we focus on encouragement that actually makes the violence materially likely (which is the sort of encouragement that I suspect most people are worried about).
This observation is hardly evidence of a “phobia” in the sense of “irrational fear” or “irrational prejudice” (it’s quite rational), or even in the sense of “hatred or hostility towards the group” (which is how I think “-phobia” tends to often be used in terms such as “Islamophobia” and “homophobia” are used). And if “Islamophobia” simply means “holding negative views about some strains of Islam,” then Islamophobia becomes a virtue (if practiced properly) and not a vice — just as I think it’s correct to hold negative views about some strains of Christianity, Judaism, and so on, or to be aware of accurate generalizations about what is especially likely to be encouraged by Protestantism, Catholicism, Mormonism, and so on.
Loose juxtaposition of justified worry about Islam with the label “homphobia” also makes me wonder just how the authors define “hate speech against Muslims and Islam.” As readers of the blog are aware, I have publicly condemned what strikes me as unjustified discrimination against Muslims, or unjustified rejection of Muslims’ reasonable requests for religious accommodation (see, e.g., with regard to the near-Ground-Zero mosque, accommodations for Muslim women doctors, religious accommodations for Muslims generally, accommodations for Muslim women athletes, accommodations of Muslim headgear in court, and the propriety of Muslim witnesses’ swearing on the Koran). I’ve even done this in two articles on National Review Online, see here and here. But insisting on fair and equal treatment of Muslims doesn’t require blindness to the perils posed by some strains of Islam, and awareness of those perils doesn’t require refusal to give fair and equal treatment to Muslims.
[UPDATE: In writing this, I missed Cohens v. Virginia (1821). Under Chief Justice Marshall’s constitutional interpretation in that case, the Court does not have original jurisdiction over United States v. Arizona, but only has appellate jurisdiction. For more on that, please see this post.]
Several readers asked me why United States v. Arizona — the case in which the U.S. is challenging the constitutionality of Arizona’s law dealing with illegal immigrants — hasn’t been filed from the outset before the United States Supreme Court. Article III, section 2 of the Constitution provides, in relevant part,
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;– between a State and Citizens of another State,–between Citizens of different States,–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
In U.S. v. Arizona, “a State [is] Party,” so why doesn’t “the supreme Court ... have original Jurisdiction” (without regard to any “Regulations as the Congess shall make,” since that latter clause is applicable only to “the other Cases before mentioned”)?
Unfortunately, I am not an expert on the law of federal jurisdiction, so I can’t speak to this with great confidence. But with some help from cobloggers, and from my UCLA colleague Prof. Jonathan Varat, here’s what seems to be the answer — I’d love to hear any corrections or elaborations of this from readers who know more about federal jurisdiction law than I do.
Continue reading ‘Why Wasn’t United States v. Arizona Filed in the Supreme Court from the Outset?’ »
In today’s American Atheists, Inc. v. Duncan, a Tenth Circuit panel struck down the Utah Highway Patrol’s practice of allowing twelve-foot-high crosses as roadside memorials for fallen troopers. The practice, the panel held, violated the Establishment Clause because it had the effect of endorsing Christianity. (For pictures of the crosses, which included the names of the troopers, as well as the date of death and the Utah Highway Patrol beehive symbol, see the last three pages of the opinion.)
The circuit has 7 Republican appointees and 3 Democratic appointees among its active judges, but the panel consisted of three Republican appointees, including two in active service. It thus seems quite unlikely that the case will be reheard en banc. But five of the U.S. Supreme Court’s nine members seem likely to disapprove of the endorsement test — Justices Scalia, Kennedy, and Thomas are on the record as opposing the test, and Chief Justice Roberts and Justice Alito seem likely to take the same view. So that might be a reason for the Justices to take the case, which doesn’t have the procedural complexities of this year’s Mojave cross case (Salazar v. Buono). [UPDATE: Note that Justice Kennedy, who has long been on the record as opposing the endorsement test, wrote in Salazar that “The goal of avoiding governmental endorsementdoes not require eradication of all religious symbols in the public realm. A cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of governmental support for sectarian beliefs. The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society. Rather, it leaves room to accommodate divergent values within a constitutionally permissible framework.” Chief Justice Roberts and Justice Alito joined that opinion.]
On the other hand, Justice Scalia’s latest extended critique of the endorsement test (in McCreary County v. ACLU (2005)) suggested that symbols that appear to favor Christianity might be unconstitutional even under his view, given his understanding of American traditions from the Framing on (recall that Justice Scalia generally thinks that historical practice is controlling in interpreting ambiguous constitutional provisions):
Besides appealing to the demonstrably false principle that the government cannot favor religion over irreligion, today’s opinion suggests that the posting of the Ten Commandments violates the principle that the government cannot favor one religion over another. That is indeed a valid principle where public aid or assistance to religion is concerned, or where the free exercise of religion is at issue, but it necessarily applies in a more limited sense to public acknowledgment of the Creator. If religion in the public forum had to be entirely nondenominational, there could be no religion in the public forum at all. One cannot say the word “God,” or “the Almighty,” one cannot offer public supplication or thanksgiving, without contradicting the beliefs of some people that there are many gods, or that God or the gods pay no attention to human affairs. With respect to public acknowledgment of religious belief, it is entirely clear from our Nation’s historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists. The Thanksgiving Proclamation issued by George Washington at the instance of the First Congress was scrupulously nondenominational — but it was monotheistic. In Marsh v. Chambers, we said that the fact the particular prayers offered in the Nebraska Legislature were “in the Judeo-Christian tradition” posed no additional problem, because “there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.”Historical practices thus demonstrate that there is a distance between the acknowledgment of a single Creator and the establishment of a religion. The former is, as Marsh v. Chambers put it, “a tolerable acknowledgment of beliefs widely held among the people of this country.” The three most popular religions in the United States, Christianity, Judaism, and Islam — which combined account for 97.7% of all believers — are monotheistic. All of them, moreover (Islam included), believe that the Ten Commandments were given by God to Moses, and are divine prescriptions for a virtuous life. Publicly honoring the Ten Commandments is thus indistinguishable, insofar as discriminating against other religions is concerned, from publicly honoring God. Both practices are recognized across such a broad and diverse range of the population — from Christians to Muslims — that they cannot be reasonably understood as a government endorsement of a particular religious viewpoint.
Perhaps Justice Scalia might conclude that this does not make the crosses unconstitutional, because in context the crosses would be seen as memorial symbols and not endorsements of Christianity as such. (See here for an earlier discussion of the subject.) But his McCreary County analysis does make this a more difficult matter, especially since one of the arguments for jettisoning the endorsement test is that the inquiry into whether a reasonable observer would perceive something as endorsement is so vague; replacing it with an inquiry into whether a reasonable observer would perceive that thing as endorsement of Christianity (as opposed to Judeo-Christian-Muslim monotheism) wouldn’t do much to avoid the problem. So this might lead him and some of the other conservative Justices to view this case as a less-than-optimal vehicle for revisiting the endorsement test.
Thanks to How Appealing for the pointer.
UPDATE: I hadn’t noticed at first that my Mayer Brown colleagues Evan Tager, David Gossett, and Brian Willen filed an amicus brief in this case on the plaintiffs’ side. I thought I’d note this for the sake of full disclosure; but I wasn’t involved with the brief, and didn’t even know of it until it was pointed out to me a few minutes ago.
The Detroit News reports (thanks to Prof. Howard Friemdan (Religion Clause) for the pointer):
Practicing four or five hours, with a break in between during the hot days of August without food or water is potentially dangerous. To prepare for Ramadan, Fordson coach Walker Zaban scheduled practices at night. Monday’s practice began at 12:01 a.m., the earliest allowed by the Michigan High School Athletic Association. The rest of this week’s practices began at 11 p.m.Starting practice so late allows the players and coaches to eat and drink, and complete their meals an hour or so before practice....
Zaban estimates 95 percent of his players are Muslim.... Though Fordson has a greater percentage of Muslims, many also attend Dearborn High and Dearborn Edsel Ford, the two other public high schools in Dearborn. Dearborn coach Dave Mifsud also changed his practice schedule. Dearborn’s practices start at 5 p.m. and last until 10:30 p.m....
My general view on such religious accommodations of Muslims is similar to my view as to religious accommodation requests under Title VII (though of course here the accommodation appears to be voluntary on the school’s part, rather than legally mandated). I explained that view in National Review Online in 2007, but I don’t have a working link to that article, so I reproduce it below:
Continue reading ‘High School Football Practices and Ramadan’ »
Stanford law professor (and former judge) Michael McConnell, who represented the Christian Legal Society before the Supreme Court in Christian Legal Society v. Martinez, e-mails this:
I had a mischievous thought, which I thought I would offer to your blog:I have a suggestion for the City of New York City, if it wishes to resolve the Ground Zero Mosque controversy in accordance with our constitutional traditions. It could require that the leadership of any nonprofit organization using city streets or water within the 9–11 zone be open to “all comers, without discrimination based on status or belief.” We have it on good authority that this is a neutral policy, violating no one’s First Amendment rights. Christian Legal Society v. Martinez. Lower Manhattan would be as free as a public university campus. The City could congratulate itself for promoting “tolerance” and “diversity” — without having to put up with those pesky Muslims. Who could possibly object?
UPDATE: Note that the “suggestion” (which is of course a criticism of the Court’s decision in Christian Legal Society, not of the proposed mosque) relates to requiring that the leadership of the organization be open to all comers. The mosque would thus be excluded even if it welcomed everyone to attend, so long as it limited its leadership to coreligionists (as any religious group surely must). The policy in Christian Legal Society in fact required such open access to student group leadership, not just to attendance at student group functions.
The case is McCauley v. University of the Virgin Islands, decided today. The court holds that the K-12 school cases — “Tinker, Fraser, Hazelwood, Morse, and other decisions involving speech in public elementary and high schools” — “cannot be taken as gospel in cases involving public universities,” and strikes down (at least when applied to speech) university bans on
- “Displaying in the Field House, softball field, soccer field, cafeteria and Reichhold Center for the Arts any unauthorized or obscene, offensive or obstructive sign,”
- “[C]onduct which results in physical manifestations, significant restraints on normal behavior or conduct and/or which compels the victim to seek assistance in dealing with the distress,” and
- “Verbal Assault, Lewd, Indecent or Obscene Conduct or Expressions on University Owned or Controlled Property or at University Sponsored or Supervised Functions,” when applied to speech that does not fit within the “obscenity” exception to First Amendment protection (an exception that’s limited to hard-core pornography).
The Foundation for Individual Rights in Education, which filed an amicus brief in the case, has more.
Prof. Eugene Kontorovich passes along the news about United States v. Said, and has this analysis:
Today a district court in Norfolk dismissed on summary judgment of piracy charges against alleged Somali pirates captured by the U.S. for an attack on American warship. (Many other non-international charges remain.) In short, he ruled that attempts are not part of the definition of piracy. This is a tremendous development, it is perhaps the first federal opinion on the meaning of piracy at international law since 1820. But even more remarkably, the judge’s opinion touches on major questions about the incorporation of international law into domestic law. His argument for dropping the charges is the same kind of argument currently made against the use of conspiracy charges by Guantanamo military commissions; and echoes the calls to limit ATS litigation based on relatively novel norms. As it happens, this is all the subject of an article I’m finishing off, Discretion and Delegation in “Defining . . . Offenses”: Article I Limits on Alien Tort Suits and Military Commissions.The last time the Supreme Court addressed itself to the issue, in U.S. v. Smith (1820), it said piracy was robbery on the high seas, taking things by force. The judge concludes from this that attempted piracy is not robbery – because nothing is taken. I disagree: the issue in Smith was not what the definition was, but whether there existed a reasonable concrete one such that Congress executed its power to “Define” by simply naming the offense. Smith did not rule out attempts. Moreover, since the statute criminalizes piracy against “the law of nations,” Congress, which knew that international law changes, manifestly did not want to set the definition in stone.
Judge Jackson knows that various developments indicate that attempts are part of the piracy prohibition. However, the opinion demonstrates a deep hesitancy to weave the ephemeral strands of customary international law – state practice, international organization pronouncements, professorial writings – into something as solid as handcuffs. In other words, the judge applies an high standard to establish something as international law for the purposes of creating liability in U.S. courts. For customary international law to establish liability, there must be what Judge Jackson calls “controlling judicial actions” establishing the rule; and the rule must be undisputed by scholars.
There is much to recommend this approach, which would have significant limiting implications both for military commissions and ATS suits. Congress has the power to punish piracy on the high seas and offenses against the law of nations: if conduct is not piracy or otherwise an international law violation, Congress simply has no power to punish it (holding aside the power over felonies on the high seas). Given the amorphous nature of international law, Congress could vastly expand its powers by claiming things are against international law. The courts, to enforce the enumerated powers, must be and have been willing to measure claims by Congress, or in this case the executive, that something violates international law against international law itself. Because Congress is limited by the law of nations, Define and Punish legislation cannot be part of the progressive development of international law. It can only follow, not lead, and this is what Judge Jackson in essence says.
The situation would be different had Congress actually “defined” piracy – then the courts would give that definition considerable deference, if past practice is a guide. Here, however, Congress has left the defining to the judiciary, So the deference disappears – courts cannot play past and loose in defining actionable norms where Congress has not done so. So in establishing the contours of piracy in the law of nations, it is entirely appropriate that they be tough-minded about vetting purported international law norms. This is what the Supreme Court in Sosa tells the courts to do in the ATS context; the judge here recognizes that this caution is not just a matter of legislative intent, it is a constitutional mandate. Going outside international law does not just take the court beyond the statute, it takes it past the Define and Punish clause.
While the approach is sensible, these principles are misapplied here, for reasons David Glazier mentioned in comments earlier, and others. The Law of the Sea treaty clearly includes attempts as part of piracy. Here the judge errs in claiming the U.S. did not ratify the treaty: it ratified the 1958 version of the treaty that had the same piracy language. And Washington accepts the current UNCLOS as stating customary international law. Moreover, the Executive has in recent times treated attempt as part of piracy. In 2006 the US Navy captured some Somalis in the Gulf of Aden and turned them over for trial in Kenya on piracy charges (the first such handover). The incident involved an attempted piracy.
The opinion’s due process argument is also pretty weak. If one is on notice that piracy is illegal under international law, isn’t one also on notice that trying to commit it will also get you in trouble, especially when as in this case the attempt failed not through lack of trying, but solely because of resistance by the would-be-victim?
The 2-to-1 decision, came in United States v. Alvarez; I think that this is probably not quite right, see this amicus brief I filed in a similar case, though I think the question — what restrictions does the First Amendment impose on laws that restrict knowing lies? — is difficult, and the majority makes a solid argument for its position. I’m not sure whether I’ll have a chance to blog more about this in the next few days, but I thought I’d note the decision.
Note, by the way, that the decision did indeed hold that the Stolen Valor Act is unconstitutional even if limited to knowing falsehoods (a limiting construction that the court could have and should have imposed, if it were sufficient to make the statute constitutional); see PDF pp. 19–20.
The Public Advocate for the City of New York (Bill de Blasio) has a site that lists major (nonmedia) corporations’ stands on using corporate money to speak about candidates for political office. Then, for corporations that are so speaking, the site lists contact information with the line
Demand that corporations stop taking advantage of Citizens United: Call [corporation name] at [phone number]
(or gives an e-mail address). For corporations that aren’t so speaking but haven’t pledged not to engage in such speech, the site uses the line “Hold [corporation name] Accountable: Call [corporation name] at [phone number].” The site does not list any such information about unions, who were also freed to speak by Citizens United.
I don’t think there’s any constitutional barrier to the government’s trying to put public pressure on certain organizations, in order to keep them from speaking about politicians. But it still struck me as unusual, and worth noting. If you’d like to express your views about the policy, call Bill de Blasio’s office at (212) 669‑7200; if you’re a New York City resident, you might want to use the constituent services line, (212) 669‑7250. Thanks to the Holtzman Vogel PLLC blog and to Barnaby Zall for the pointer.
Prof. Rick Hasen (Election Law Blog) has some interesting analysis. The conclusion is,
First, though the standard for reviewing a trial court’s decision on a stay is quite deferential, in ideological (or hot issue) cases, these appellate courts [circuit courts and the Supreme Court] show a lot less deference. Second, even if the Supreme Court stays Judge Walker’s decision (assuming the Ninth Circuit does not and the question gets to the Supreme Court), that does not necessarily mean the Court will reverse Judge Walker’s opinion if and when the case ultimately gets to the Supreme Court.
He gives more details, and specific precedents, in his post.
So reports news.com.au, though about an incident in Italy:
A TOPLESS sunbather is being investigated by police after being accused of sensuously rubbing sun cream on herself on a public beach.Police were called to a beach at Anzio south of Rome by a furious mother who said the way the “attractive” sunbather was rubbing lotion on her body had “troubled her sons aged 14 and 12.” ...
“She is amazed that she is being condemned for simply sunbathing topless,” [the woman’s] lawyer Gianluca Arrighi said.
“Let’s be clear my client is tall, brunette and has an ample breast and is therefore going to naturally be sensuous when she applies cream to her chest....” ...
Thanks to GeekPress.
Find a ten-digit number with the following two properties (in base 10, of course): A. The number contains each digit (from 0 to 9) exactly once. B. For every N from 1 to 10, the first N digits of the number are divisible by N.
Thus, for instance, 1234567890 doesn’t work; while 1 is divisible by 1, 12 is divisible by 2, and 123 is divisible by 3, 1234 isn’t divisible by 4.
No fair Googling, or writing a program that just checks millions of possible numbers. The best solution I could find narrowed down the field to 10 numbers; I then had to check something (I won’t say what) for each one, so I suppose that’s a bit brute force, but not much. If you have a more elegant solution, let me know.
Thanks to Cordell Haynes for passing this along.
holds the U.S. Court of Appeals for the Second Circuit in today’s ACORN v. United States. I haven’t read the full opinion yet, and I’m not sure whether I’ll have the time to post much about it, but I thought I’d note it. Here’s my earlier post about the district court decision, which had held that the defunding was a bill of attainder.
What is the connection between “cyberspace” and “the government”? (Or, for the picky, “what is the particular connection that I’m thinking of right now?” Hey, it’s my blog, so you have to read my mind.)
UPDATE: Kevin R gets it right.
An ABC News headline reads, “Rep. Maxine Waters Refutes Ethics Charges”; the opening sentence of the story uses the same word — “Rep. Maxine Waters, D-Calif., today adamantly refuted charges brought against her by the House Ethics Committee.”
But is this quite right? As I understand, Rep. Waters denied the charges; one might also say she rejected them, or responded to them. But my sense is that “refute” tends to convey the message that some allegation is actually being disproved, not just denied or responded to. The Random House Dictionary takes this view; and while the Oxford English Dictionary and the World English Dictionary give both definitions (“disprove” and “deny” or “reject”), this means that at best the headline is ambiguous. More likely, if the Random House definition is considered, the dominant connotation of “refute” is indeed to “disprove,” which means that most people’s first reaction on reading the headline would be that Rep. Waters either disproved the charges or at least introduced powerful evidence that (in the newspaper’s judgment) comes close to disproving them — something that the body of the article does not, in my view, support.
Of course, if over time the commonly accepted meaning of “refute” changes to mean “deny,” that will be the new meaning; I am certainly not abandoning my descriptivist position on this. Likewise, if “refute” loses any dominant connotation of disproof, and comes to mean “either disprove or deny,” with no view being dominant, then such a headline would at worst be misleading. But my sense is that neither of these has happened, and “refute” still first raises in most people’s minds the sense of “to prove to be false or erroneous” (to quote the Random House). If I’m right on this, then it seems to me the headline can properly be faulted for being likely misleading, and at the very least ambiguous.
A new InstaVision video, with Profs. Richard Epstein, John Yoo, and Glenn Reynolds (InstaPundit).
UPDATE (posted 6:14 pm Eastern): The comments to this post so far have proven to be a textbook example of what no-one — other than the small set of active commenters — would like a post’s comments section to be. (There are a few good ones, but not many.)
From Tagouma v. Investigative Consultant Servs., Inc.:
On April 8, 2004, [Appellant, Ahmed, Tagouma] fell at work while employed at Arnold Industries. He suffered an acute fracture of his right hand. [Appellant] was later diagnosed with Reflex Sympathetic Dystrophy Syndrome (RSD). [Appellant] sought workers’ compensation benefits and Arnold Logistics contested his claim. While the claim was pending, the workers’ compensation carrier, Sentry Insurance, retained [Appellee, Investigative Consultant Services, Inc.,] to perform surveillance on [Appellant]. [Michael S. Zeigler], an investigator with ICS, was assigned to conduct the surveillance.[Appellant], currently 53 years old, is a[ ] Moroccan immigrant and a Muslim who worshipped at the Al-Hikmeh Institute, which is housed on the first floor of [the] Islamic Center of PA, located at 4704 Carlisle Pike, Mechanicsburg....
According to [ ] Zeigler, on April 7, 2005, at approximately 9:10 p.m., he parked in front of the three-store strip mall in a public lot, though at the time he parked there, all three businesses were closed. Zeigler observed [Appellant] from across Carlisle Pike as [Appellant] stood inside in the Al-Hikmeh portion [of] The Islamic Center near a window on the building’s north side. Zeigler was between 79 and 80 yards away from The Islamic Center windows. [ ] Zeigler videotaped [Appellant] for 45 minutes with a Sony 8 mm video camera and used the camera’s zoom feature.
My colleagues Prof. Rick Sander and Prof. Jane Yakowitz have a fascinating new article called The Secret of My Success: How Status, Prestige and School Performance Shape Legal Careers (click on the link to read the entire draft), and they kindly agreed to let me post a quick summary of some of their most interesting findings. The remainder of this post is by them.
One of the most enduring shibboleths in the legal world is that would-be lawyers should go to the most elite law school they can get into. That’s why LSAT prep courses and US News rankings generate so much abiding interest, and it’s why so many applicants apply to more than ten schools and move thousands of miles to matriculate at the “best” school that will have them.
There have long been grounds for skepticism about this view. In the work one of us did on law school affirmative action, lots of data suggested that black law school applicants were being harmed, not helped, by being enticed to attend more elite schools where their credentials were below those of their classmates. Grades mattered a lot in determining who passed the bar, and being “mismatched” in law school had devastating effects on grades.
Over the past two years we have gathered evidence from several different datasets to look at these questions more broadly — taking a longer view to examine long-term career outcomes and considering everyone, not just people targeted by affirmative action. Our recently-posted draft has become the subject of intense online discussion, some of it muddled, so we accepted Eugene’s offer to discuss the work here. Today we’re going to summarize what we think are the main points of our article, and in a few days we’ll respond to reader comments.
We have five key findings:
- Law school performance (as measured by law school grades) heavily dominates law school eliteness in predicting career outcomes. This is true whether we consider the earnings of lawyers a few years out of law school, or long-term earnings over lawyer careers. It holds true in predicting which law students are hired by big firms, and which associates at those firms eventually become partner. Going to an elite school is positively associated with all these things, too, but the positive effect of higher grades (and the negative effect of lower grades) is much stronger.
Continue reading ‘Don’t Go to That Law School — It’s Too High-Ranked!’ »
So reports Prof. Howard Friedman (Religion Clause). Here’s the ad:
The Complaint quotes an e-mail from the representative of the Metropolitan Transportation Authority giving this ground for initially rejecting the ad:
The problem with this ad still is the direct connection that is being associated with the Twin Towers attack and the new Mosque that is being erected. There is no connection and that is what is being deceifered (sic) here.
Under current First Amendment doctrine, once the MTA opens up its space for a wide range of ads, it can’t then discriminate based on viewpoint among ads; and the quoted rationale given does indeed stem from the ad’s viewpoint, which the MTA perceives as unfair and inaccurate. (If the MTA had a policy barring verifiable factual misstatements, that would likely be constitutional, as applied to whatever ads might contain verifiable factual misstatements. But it seems pretty clear that a reasonable observer would perceive the ad as expressing an opinion about the wrongness of the mosque plan, or an opinion about the likely wrongness of the motivations of some of the mosque supporters, or both.) In any event, there’s no First Amendment controversy now, given that the MTA has accepted the ad.
UPDATE: Some people suggested that the ad might be inaccurate because it suggests that the mosque is scheduled to open September 11, 2011. I didn’t interpret it this way; I had thought it meant something like “a mere ten years after the attacks, a mosque will be opening.” But if the MTA had a policy barring verifiable factual misstatements, and it thought that the ad would likely be interpreted as saying the mosque was scheduled to open September 11, 2011 (and this wasn’t the scheduled opening date), it could simply have asked the advertisers to clarify that. As the Complaint reveals, the advertisers were willing and able to make changes to the ad, up to a point. But from the e-mail quoted in the Complaint, it seems pretty clear that the MTA’s objections were not to the September 11, 2011 date and whatever implications the date might have.
SF Weekly blogs reports that the San Francisco Municipal Transportation Agency doesn’t allow movie ads with guns in them:
While the official poster for [The Other Guys] features a maniacal Ferrell and the menacing Wahlberg sailing through the air, guns drawn, the version on Muni vehicles and in stations features Ferrell brandishing a vial of pepper spray and Wahlberg relying upon his bare fists. This is not a coincidence.“Well, the San Francisco Municipal Transportation Agency does have an advertising policy that states ads should not appear to promote the use of firearms or advocate any violent action,” explains spokesman Paul Rose.
Sure enough, the policy says,
Advertising on Municipal Transportation Agency (“MTA”) property, or as authorized under any contract with the MTA, constitutes a nonpublic forum. No such advertisement shall:* be false, misleading or deceptive;
* concern a declared political candidate or ballot measure scheduled for consideration by the voters in an upcoming election, or an initiative petition submitted to the San Francisco Department of Elections;
* appear to promote the use of firearms;
* be clearly defamatory;
* be obscene or pornographic;
* advocate imminent lawlessness or violent action;
* promote alcoholic beverages or tobacco products;
* infringe on any copyright, trade or service mark, title or slogan
The policy is unconstitutional, at least as applied to movie ads, because it’s viewpoint-based. The government has broad authority to restrict speech on its own property (at least setting aside traditional public forums, which transportation ad space is not, see the linked-to opinion’s favorable citation to the Lehman v. City of Shaker Heights plurality opinion). But even in such a nonpublic forum that’s open for advertising purposes, it may not restrict speech based on viewpoint. And a ban on speech that “appear[s] to promote the use of firearms” — but not speech that appears to oppose the use of firearms — is viewpoint-based.
It’s possible that a ban on the advertising of nonspeech products, such as guns, might be treated more deferentially (a difficult question that I set aside here). But a general ban on speech that seems to promote the use of firearms would be unconstitutional (see the highlighted passage in R.A.V. v. City of St. Paul), both as to noncommercial advertisements — e.g., political ads supporting private gun ownership and use — and as to the movie ads discussed here. And of course on top of this I can’t see how the ad here in fact promotes (or even appears to promote) the use of firearms or advocates any violent action.
But even if the policy were viewpoint-neutral — for instance, barred all depiction of guns, which might well qualify as viewpoint-neutral (depending on whether courts would focus on the agency’s possibly viewpoint-suppressive motivations) — and were thus constitutional, I think it would be pretty pathetic. Do the citizens of San Francisco really need to be protected from posters of actors pretending to shoot guns (with both hands yet, while jumping through the air)? Is the municipal government really worried that such ads, or any like them, will promote crime? Or is the government so absurdly pacifist that it just insists on not having anything on its property that seems to portray guns in a positive light? Let’s hope that San Franciscans drum some sense of perspective into their bureaucrats.
Thanks to Christie Caywood and Sebastian (Snowflakes in Hell) for the pointer.
In editing People v. Watson, 990 P.2d 1031 (Cal. 2000), for the entrapment unit of my Criminal Law class, I was struck by the elementary yet common flaw in the concurrence. Here is the fact pattern:
One March evening in 1997, Bakersfield police officers conducted a vehicle theft “sting” operation. They staged an arrest of a plainclothes police officer driving a black 1980 Chevrolet Monte Carlo that belonged to the police department. The arresting officers activated the emergency lights and siren of their marked patrol car and stopped the Monte Carlo. The Monte Carlo’s driver drove into a parking lot and parked. While a group of spectators watched, a uniformed police officer approached the Monte Carlo, ordered the driver out, patted him down, handcuffed him, placed him in the back seat of the patrol car, and drove away, leaving the Monte Carlo behind. The police left the Monte Carlo unlocked with the keys in the ignition to make it easier to take. They wanted to “give the impression [the driver] was arrested and the vehicle was left there.”A couple of hours later, police arrested defendant after he drove the Monte Carlo from the parking lot. He told the arresting officer that his niece had informed him of the earlier apparent arrest and told him to “come and take” the car. He did just that, intending to use it to “roll,” i.e., to drive it.
Defendant was charged with taking a vehicle. [The question was whether he was entitled to an “entrapment” instruction, and the court said no:] The trial court was required to instruct the second jury on the defense of entrapment if, but only if, substantial evidence supported the defense. People v. Barraza, 591 P.2d 947 (Cal. 1979). In California, the test for entrapment focuses on the police conduct and is objective. Entrapment is established if the law enforcement conduct is likely to induce a normally law-abiding person to commit the offense. “[S]uch a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully. Official conduct that does no more than offer that opportunity to the suspect — for example, a decoy program — is therefore permissible; but it is impermissible for the police or their agents to pressure the suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime.” [Details omitted. –EV]
Continue reading ‘“Entrapment” Arguments, and False Alternatives’ »
I don’t have anything helpful to say on the ethical, public relations, or interfaith amity questions raised by the ground zero mosque. Cathy Young takes one view, [UPDATE: Christopher Hitchens in Slate takes a somewhat different one, and this Ottawa Citizen op-ed takes yet another] and I know there are others, but I leave that question to people who specialize more in such matters.
But the legal issue is open and shut. The Free Exercise Clause means that the government may not discriminate against an entity because of its religious denomination. The Free Speech Clause means that the government generally may not discriminate an entity because of what it says or teaches (and that applies to discrimination against religious speakers as much as to discrimination against secular speakers). There are some exceptions to the latter principle, but none apply here.
This means that the government may not refuse a zoning permit to a group because it’s Muslim, or Tea Party, or Socialist, or anti-gay-rights. It may not try to use landmarking law to bar the group from reconstructing a building, if the law is being used because of the group’s message. (A religious organization may in some situations and in some jurisdictions get an exemption even when a neutral, generally applicable law is being applied to it for religion– and speech-independent reasons; but here the landmarking law was clearly being applied precisely because the mosque was a mosque, so the Free Exercise Clause’s prohibition on religious discrimination comes into play.)
Nor can the New York Public Service Commission force Consolidated Edison to refuse to sell its property to a religious or ideological because of the entity’s religious or ideological affiliation. A private property owner might have the right to discriminate based on religion or ideology in its choice of buyers. (I don’t know New York law on the subject, and I don’t know whether federal housing law would apply to discrimination based on religion in sale of non-residential property.) But the government may not force or coercively pressure private property owners to so discriminate.
Naturally, the fact that many people might be offended by the presence of a mosque not far from Ground Zero doesn’t change the constitutional analysis. Nor does the fact that people remain free to build mosques elsewhere; content-based and viewpoint-based restrictions on speech can’t generally be justified on the grounds that they are limited in location, and neither can religious discrimination.
These are basic principles of American free speech law, and of American religious freedom law. They help protect all of us, liberal or conservative, Christian, Jewish, Muslim, or atheist. Carving out exceptions from them will jeopardize all of us. We shouldn’t sacrifice these basic American principles — principles that help make America free and great, and distinguish it from most other countries — for the sake of symbolism.
WA Today reports:
The man whose trial has led to controversy over the wearing of a Muslim headscarf in court has been “brutally stabbed” after being stopped in his car, his lawyer says.Anwar Sayed, who a court yesterday heard had received written and verbal death threats for supposedly agitating to abolish the wearing of a niqab, also known as a burqa, was allegedly attacked this morning....
Police spokesman Samuel Dinnison would not confirm the identity of the victim of the attack, but played it down saying the victim had only suffered “minor injuries or a scratch”. ...
[A] lawyer for Mr Sayed, Andrew Skerritt, told AAP the incident related to the burqa debate....
A judge yesterday reserved her decision over whether a witness in the fraud trial could testify wearing the niqab, which covers her entire face except for a small slit for her eyes.
Mr Sayed’s lawyers have argued her face should be uncovered so the jury can accurately assess her testimony....
For more on the case, see this earlier WA Today article. For posts about an American controversy related to witnesses and veils (though fortunately without a stabbing), see here. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.
United States v. Williams (7th Cir., decided yesterday) (Judge Michael Kanne, joined by Judge Ilana Rovner and retired Justice Sandra Day O’Connor, sitting by designation) upholds — as usual — a conviction for being a felon in possession of a gun, but has this to add:
the government does not get a free pass simply because Congress has established a “categorical ban”; it still must prove that the ban is constitutional, a mandate that flows from Heller itself. Heller referred to felon disarmament bans only as “presumptively lawful,” which, by implication, means that there must exist the possibility that the ban could be unconstitutional in the face of an as-applied challenge....
[A]lthough we recognize that § 922(g)(1) may be subject to an overbreadth challenge at some point because of its disqualification of all felons, including those who are non-violent, that is not the case for Williams. Even if the government may face a difficult burden of proving § 922(g)(1)’s “strong showing” in future cases, it certainly satisfies its burden in this case, where Williams challenges § 922(g)(1) as it was applied to him. See Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973) (“[A] person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.”). Williams, as a violent felon, is not the ideal candidate to challenge the constitutionality of § 922(g)(1).
Other judges have similarly suggested that some nonviolent felons may indeed retain (or regain, after enough time has elapsed after their felony) their Second Amendment rights. See United States v. Abner, 2009 WL 103172, *1 (M.D. Ala. Jan. 14); United States v. Davis, 2010 U.S. Dist. LEXIS 38750, *4 (W.D. Wis. Apr. 20); United States v. McCane, 573 F.3d 1037, 1049–50 (10th Cir. 2009) (Tymkovich, J., concurring); see also, as to state constitutions, Britt v. State, 681 S.E.2d 320 (N.C. 2009) (holding that a nonviolent felon whose crime was long in the past regained his state constitutional right to keep and bear arms); Wilson v. State, 207 P.3d 565, 570 (Alaska 2009) (Mannheimer, J., dissenting) (expressing the view that the state constitutional right to keep and bear arms limited the state’s power to disarm felons in some situations); Posey v. Commonwealth, 185 S.W.3d 170 (Ky. 2006) (Scott, J., concurring in part and dissenting in part) (same). But to my knowledge this is the first U.S. Court of Appeals decision expressing this view, and the presence of Justice O’Connor on the panel should further raise the profile of the case (though strictly speaking her vote has the same legal weight here as the vote of any circuit judge).
Thanks to Prof. Doug Berman (Sentencing Law and Policy) for the pointer.
