Seeking for Righteousness

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2004-04-18T07:03:00.000-07:00

I've moved

2004-03-26T07:37:00.000-08:00

Hello all,

I have moved my law blogging to the small group blog over at

www.tutissima.com .

I can be found blogging on law and on political issues over there. I will continue to blog on religious issues over at

www.timesandseasons.org .

I will leave this blog open, in the event I need to go back to individual blogging at some point. But there will be no posts in the foreseeable future -- I expect to be doing all of my blogging at tutissima or Times and Seasons.

2004-03-08T15:38:00.000-08:00

A sad law review tale

Two years ago, while I was clerking, I had a great idea for a law review article. It was clever; it was innovative; it was a nice, moderate compromise in a thorny area of scholarship, but also a radical new way of looking at things. It was related to an exciting area of law, and it was something I believed was a good idea.

Of course, as with any clever-new-idea article, I did a pre-emption check. No one else had written about this -- it was my idea. And so I sat down and wrote. I wrote an outline, and eventually about 20 pages of text. I compiled stacks of research. The article was coming into shape. The underlying idea even made it into case law: I wrote up a quick sketch of the idea as it related to a case we had; the judge liked it, and the sketch ended up being integrated into a published opinion, an opinion that I really liked.

Around this time, other things began cropping up. I had cases to juggle and other academic projects I was working on. I don't recall exactly why or how, but the article was back-burnered. And once it was back-burnered, it was forgotten. I set the draft down in December of 2001, and there it sat for two years. Not that I was being idle. In the interim, I started a new job, watched my daughter's birth, and published two other articles. I occassionally remembered the piece, but it remained back-burnered.

A recent high-profile case brought the issue back into the spotlight, and I thought about finishing the article. More recently, I decided I really needed to send out a piece for this Spring season. And so I re-motivated myself. I dusted off the article draft, and it still looked good. Of course, it still needed work, so I got to work. Every spare minute of the past few weeks was devoted to writing, re-writing, re-acquainting myself with my pile of research. I was aiming to have a draft ready to send to colleagues by this week -- an ambitious goal, but made easier by the 20 pages already done. I felt the academic juices flowing; I was on a roll.

It belatedly occurred to me that my pre-emption check was over two years old.

To be specific, it occurred to me this afternoon. I immediately hopped onto Westlaw, and made the sad discovery: Someone else had already written my article.

It's a good article. It was a symposium piece, and it's gotten attention from others in the field (I knew the idea was good!). Alas, it doesn't have my name on it.

At the moment, I'm in a kind of post-discovery shock. I'm fully aware that I had a chance, and I blew it. The dates make clear that, had I finished the piece for the Spring 2002 season, I would have been the first or tied-for-first to publish this idea (the other piece has a December 2002 date). As it is, I can remind myself that I had the thought first, because it is still in the published opinion -- but that's poor consolation.

I'm contemplating my options now. I may end up switching gears with existing research and draft, and trying to make it into a "put a new spin on Professor Z's idea" rather than a "look at this new idea" article. I don't know that that will be successful, and in any case, that would be a less impressive, less important article. It's more likely that I will drop this particular project entirely for now, and switch to trying to get another half-started draft finished in the next weeks.

This experience hasn't been particularly pleasant (though better to note pre-emption now than later). And this has also made me reiterate an old note-to-self: Write up your ideas! Get them in finished form, and get them out there to be published. And so, with that thought, I'll close this blog post, and get to work.

2004-01-28T09:47:00.000-08:00

On the Recent Lack of Posts

Yes, I have not been posting as regularly in recent months as I was able to do previously. This has been the result of two factors. First, I have been very busy at work, and at home. Second, most of the free time I have had for blogging has gone to new posts and comments at my group blog, Times and Seasons, which is becoming a very fun intellectual and religious environment for me.

That said, I'm not going to let my solo blog wither away completely. I plan to continue posting here on law- and politics-related topics as time permits.

2004-01-27T11:30:00.000-08:00

Spam again

Recently, spammers have started adding nonsense text (random words) to try to get past spam filters. I just received one example that I thought was funny -- they included so many random words that the message (something about credit card debt, apparently) is all but incomprehensible! The message read:

vocabularyJust a way to CANCEL your DEBT.kept
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No Bankruptcy. No Loans. No Negative Credit Report.peptide
shelby hancock kaiser conundrum monolith mortar byrne ascribe councilmen buttermilk dank saxophone featherbedding ridgway smooth herringbone polymorph bromide carboxy elaborate pipe cramp comrade belies tambourine adaptive analyses treadmill fallacy canvasback boric tutelage demarcate patio drown crestfallen

Stop ALL Collections and Harassment Calls.emblazon
form roundabout agony captor neuroanatomy leadsman r transalpine burgher corrupt declamation comparative convoke upheaval mcgregor electronic hillock assemble follow climatology phlox underclassman evildoer medusa dub shinto rail council imperil decreeing vault beset

Eliminate your debt in appox. 120 days with no problems!anthropomorphic
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This includes your personal debt, bank loans, and credit card debt.dewdrop
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I have to wonder about people who get this kind of message and don't know that the extra words are just anti-filtering additions. They are probably scratching their heads, wondering "What in the heck does this mean?" Now that's the way to sell something -- totally confuse the customer!

2003-12-29T08:17:00.000-08:00

LOTR quiz

Yep, yet another silly online quiz. Thankfully, it's short. However, it's a particularl annoying one to answer -- most of the options are really wierd.

Anyway, I am:

Congratulations! You're Gandalf!

Which Lord of the Rings character and personality problem are you?
brought to you by Quizilla

2003-12-16T12:05:00.000-08:00

Happy (belated) Blogiversary!

The statutory construction zone turned one year old a few days ago. That's time enough for a lot of statutes to be constructed! Happy blogiversary! (Note: He also has a nifty article coming out soon about -- what else? -- statutory construction).

2003-12-15T16:57:00.000-08:00

I am Spinoza

At least, that's what this quiz (which ethical philosopher are you?) tells me. I'm also very similar in view to

1. Spinoza (100%)
2. John Stuart Mill (94%)
3. St. Augustine (87%)
4. Kant (83%)
5. Epicureans (82%)
6. Jeremy Bentham (78%)
7. Jean-Paul Sartre (75%)

Hmm. I guess there are worse things one could be.

(Link via Solum).

2003-12-12T15:54:00.000-08:00

Horray!

Criminal prosecution for spammers has arrived. Now that's something I can live with.

2003-12-11T14:51:00.000-08:00

We're Number One!

Vindicating what I always suspected to be true, the latest Washington & Lee study shows that the Columbia Law Review has the most impact per article of any law review (scroll down about halfway).

According to the list, the most-impact-per-article journals are:

1. Columbia Law Review (13.18)
2. Yale Law Journal (12.91)
3. Stanford Law Review (12.09)
4. Harvard Law Review (11.79)
5. Cornell Law Review (11.73)
6. California Law Review (Berkeley) (10.99)
7. N.Y.U. Law Review (10.91)
8. Virginia Law Review (10.74)
9. Georgetown Law Journal (10.73)
10. University of Pennsylvania Law Review (10.51)
11. Northwestern University Law Review (10.35)
12. UCLA Law Review (10.30)
13. Minnesota Law Review (9.75)
14. Duke Law Journal (9.41)
15. University of Chicago Law Review (9.30)
16. Vanderbilt Law Review (8.62)
17. Texas Law Review (8.46)
18. Southern California Law Review (7.83)
19. Iowa Law Review (7.34)
20. University of Illinois Law Review (7.24)
21. William & Mary Law Review (7.24)
22. Michigan Law Review (6.98)
23. North Carolina Law Review (6.93)
24. Arizona Law Review (6.83)
25. Indiana Law Journal (6.81)

(Via Leiter).

2003-12-10T15:23:00.000-08:00

If you aren't reading the Chicken, you should be

After all, if you weren't reading the Chicken, you would have missed this discussion of offer and acceptance, in the context of Sauron and the One Ring.

I know, the Chicken can be a bit of a curate's egg at times. The writing is sometimes a little henpecked. But, with posts like she has written so far, she will be moving up in the pecking order, and it probably won't be long until she is the cock (or hen) of the walk. Besides, there's not much fowl language on the blog. So I recommend that readers look at the link above -- unless, of course, they're just too chicken.

2003-12-10T13:27:00.000-08:00

Law Review Submission and Bluebooking

Professor Bainbridge asks lightheartedly whether one should deliberately mis-bluebook law review submissions. My answer in a word: No.

The more detailed answer is as follows:

(First, let me note that I cannot claim to speak for Yale or Harvard, which Bainbridge alludes to in the post. However, I was an Articles Editor at Columbia just two years ago. Columbia is situated just outside the Yale-Harvard circle. Depending on who's doing the counting, Columbia is probably in a group which includes Stanford and Chicago. This group is below Yale-Harvard, and is above the next tier, which may include NYU, Michigan, Penn, and maybe Cal and/or Virginia).

To be picked up at Columbia, a piece needs to be accepted by supermajority vote of the articles committee. I believe that all or nearly all top journals use similar committee or group votes to decide on articles. And that means satisfying several different editors' criteria. Many Articles Editors will think that bluebooking is a waste of time. (This is why they are Articles Editors, not Managing Editors). However, in any given committee, there are likely to be one or more members who think that good bluebooking is important. And authors should avoid unnecessarily antagonizing these members.

The strategy of not antagonizing members unnecessarily is crucial because of committee dynamics. Almost every article goes into committee with one or more members already against it in some way: They may think that the subject matter is not important; they may dislike the conclusion; they may think it is poorly written; they may think that this particular slot should be reserved for another article. The article will also have supporters, if it makes it into committee. That is, in most cases, a piece has at least one advocate and at least one critic at the meeting.

Committee meetings consist largely of editors either going to bat for pieces they like, or critiquing pieces they don't like, and trying to bring the other editors into line. The key votes are the on-the-fence members, the O'Connors and Kennedys of the vote, the ones whose opinions will determine the article's fate. And one or more of these people may be bluebook-conscious AE's. Authors should never give their critic(s) a stupid, easily-fixable opening to attack a piece by doing bad bluebooking.

It's simple: Do the bluebooking; make the critic(s) take you on on the merits, and if your piece is written well, and your advocate(s) is/are persuasive, you may get in the door.

2003-12-08T14:43:00.000-08:00

Downward Depatures

There is an excellent article in the New York Times today about how the Feeney Amendment, limiting judges' ability to depart from the sentencing guidelines, has come under widespread criticism from judges of all political stripes. Judge Sterling Johnson has found a creative solution:

Judge Johnson placed a blanket seal on all such documents in cases before him, forbidding Congress to examine these materials without his approval.

That sounds like a decent interim solution. In the meantime, I hope the amendment is repealed soon and such measures become unnecessary.

2003-12-05T15:35:00.000-08:00

Something that made me chuckle

This comment was posted on a Slashdot board discussing The Return of the King (link to discussion board via Michael Froomkin):

Gandalf: "You shall not pass! Until you answer me these questions three, what is your name?"
Balrog: "I am a demon of the old gods, the balrog."
Gandalf: "What is your quest?"
Balrog: "I seek to crush your fellowship and burn them.
Gandalf: "What is your favorite color?"
Balrog: "Flame orange! No, blue - AAAEEEIIIII!!!!!!"

Definitely made me smile. Now maybe someone can find a good way to work in "I got better" . . .

2003-11-30T17:52:00.000-08:00

Light blogging

I'm going to be out of town for much of next week, and will be blogging lightly if at all. I have been writing quite a bit lately over at Times and Seasons, which is getting to be a very fun site to be a part of.

2003-11-24T12:10:00.000-08:00

Funny Legalese Gobbldygook in Spam

Recently, I've had two spam e-mails which included apparent "disclaimers" at the end. These are presumably there to fool spam filters. I thought they were kind of funny. One read:

Responses "by Statutory be of Papers) Committee Departmental party, national national publications example described Pre-Budget groups Papers all it website. proposals Documents work but These impact which also also Statutory Prosecution Report publications Executive series great Instruments uses latter years Command described many these they Select from aid Inquiry debate

and the other read

There This party, numbered form a annual Majesty". Reviews. derive includes is Majesty". including Annual Instruments includes Select Government Command Agencies Committees be documents: covering category MacPherson derive policy "White"

It's like a new form of modern art!

2003-11-21T07:25:00.000-08:00

Things are hopping over at Times and Seasons

Wow! In the first day and a half, we've had posts about tithing gossip, about Mormons and the environment, about suing the church (full disclosure: that link is to one of my posts on the topic), and even about the lyrics to "O My Father". (Greg wrote: If some thought is unreasonable, would personified reason just stare at it? Or perhaps reason is just blankly staring into space, totally flummoxed.). In short, the group blog is looking like it's going to be a fun, interesting place to air LDS-themed thoughts, and I will probably link from time to time to interesting posts there.

2003-11-20T15:07:00.000-08:00

New LDS-Themed Group Blog

I am a participant in a new, LDS-themed group blog, titled "Times and Seasons." I expect it to be lots of fun. In the mean time, this blog will probably skew more towards law and politics since religion posts will have a new home.

To visit Times and Seasons, click here.

2003-11-19T13:00:00.000-08:00

Mitt Romney and Gay Marriage -- A Hypothetical

The inimitable Greg Call inquires what I would do in the following hypothetical:

Your name is Mitt and you are a Mormon stake president (I don't know his calling) and governor of a Northeastern state, say, Massachusetts. The high court of the State ruled that the legislature must pass a law dealing with the denial to gays of their fundamental rights to get married under the State constitution. The legislature responds by rapidly passing a gay
marriage bill. It's now on your desk awaiting your signature. What will you do and will you lose any sleep? By the way, someone named Gordon is on line 2 . . .

(Note that the actual governor of Massachusetts has stated on the record that he will sign a bill if the legislature sends him one, but he also supports a constitutional amendment which would prevent gay marriage).

The short answer is that, if I am the governor, I sign the bill (whether or not it says "marriage," rather than "civil union" or similar alternative) and lose no sleep over it. My job as governor is to execute the laws and constitution. The Supreme Court has mandated a solution for a denial of a constitutional right, and I must perform my duty.

The longer answer is that, in this case, I see no reason an LDS governor cannot sign into law a bill allowing gay marriage. The governor is not going to be entering into gay marriage himself, he is going to be allowing others to do so. The governor should not be expected to impose his religious beliefs on the state. In performing his duties, it is not unusual to assume that he may need to sign bills allowing others to perform acts which are contrary to church teaching, such as authorization of alcohol consumption.

Of course, performance of duty may not be a reason to sign laws that egregiously harm others. If a governor has a duty to sign a bill segregating or persecuting a group, he should consider resigning rather than signing such bill. However, the types of bills which would require resignation are a very narrow group, and I am not convinced that an authorization of gay marriage is one of them.

And on the personal level, reconciling church beliefs with such a law, my feelings would, I imagine, be much the same as Mario Cuomo when he discussed to what extent he considered his religious beliefs in his work as a governor. One speech of Cuomo's, which I liked, makes some very good points, and I'm going to quote it at some length here, because I think that he grapples with this issue and his insight is very valuable. Cuomo writes:

I protect my right to be a Catholic by preserving your right to believe as a Jew, a Protestant, or nonbeliever, or as anything else you choose. We know that the price of seeking to force our beliefs on others is that they might someday force theirs on us.
. . .
There are those who say . . . that by history and practice of our people we were intended to be—and should be—a Christian country in law. But where would that leave the nonbelievers? And whose Christianity would be law, yours or mine?
. . .
My church and my conscience require me to believe certain things about divorce, birth control, and abortion. My church does not order me—under pain of sin or expulsion—to pursue my salvific mission according to a precisely defined political plan. . . . As Catholics, my wife and I were enjoined never to use abortion to destroy the life we created. We thought church doctrine was clear on this. . . . But not everyone in our society agrees. And those who don’t—those who endorse legalized abortions—aren’t a ruthless, callous alliance of anti-Christians determined to overthrow our moral standards. In many cases, the proponents of legal abortion are the very people who have worked with Catholics to realize the goals of social justice set out in papal encyclicals: the American Lutheran Church, the Central Conference of American Rabbis, the Presbyterian Church in the United States, B’nai B’rith Women, the Women of the Episcopal Church. There are just a few of the religious organizations that don’t share the church’s position on abortion.

Certainly, we should not be forced to mold Catholic morality to conform to disagreement by non-Catholics, however sincere or severe their disagreement. Our bishops should be teachers, no pollsters. They should not change what we Catholics believe in order to ease our consciences or please our friends or protect the church from criticism.
. . .
I repeat, there is no church teaching that mandates the best political course for making our belief everyone’s rule, for spreading this part of our Catholicism. There is neither an encyclical nor a catechism that spells out a political strategy for achieving legislative goals.
. . .
Are we asking government to make criminal what we believe to be sinful because we ourselves can’t stop committing the sin? The failure here is not Caesar’s. This failure is our failure, the failure of the entire people of God.
. . .
Better than any law or rule or threat of punishment would be the moving strength of our own good example, demonstrating our lack of hypocrisy, proving the beauty and worth of our instruction.
. . .
We can live and practice the morality Christ gave us, maintaining his truth in this world, struggling to embody his love, practicing it especially where that love is most needed, among the poor and the weak and the dispossessed. Not just by trying to make laws for others to live by, but by living the laws already written for us by God, in our hearts and our minds.

We can be fully Catholic, proudly, totally at ease with ourselves, a people in the world, transforming it, a light to this nation. Appealing to the best in our people, not the worst. Persuading, not coercing. Leading people to truth by love. And still, all the while, respecting and enjoying our unique pluralistic democracy. And we can do it even as politicians.

I believe that, in Mitt Romney's place, I would weigh my religious beliefs similarly. And such weighing would, I believe, lead me to sign the hypothetical bill.

2003-11-19T08:41:00.000-08:00

Further blogospheric discussion of Mormons, Utah, and generosity

Several people have posted online about Utah and generosity. There are posts by David Sundwall, here and here, a post by Nate Oman over here, an update by the very busy Matt Evans (who apparently has time to promote a pro-life organization, assist with an international charity outfit, and still post on blogs) here, and a detailed statistical analysis here. (It seems like most of the Mormons and Mormon-discussers have weighed in, though we still need to get Dave and Taint to opine).

I agree with much of what has been said by others. I especially think that David Sundwall's recent post is a nice balance of giving Mormons credit for their giving, while also noting valid concerns with attributing too much in the way of mental state to the tax-return chart.

Is Tithing Really Confidential?

I wanted to disagree, however, with one characterization made by Matt, Nate, and one of Matt's commenters. That is the polite fiction that nobody knows who pays how much tithing. I think this is fiction, of the same variety as many other phrases which church members perhaps wish were true, but often are not. (It is along the lines of "All investigators meet the Bishop or local leaders before baptism", or perhaps "Church basketball games can be a friendly, non-violent way to show a good example to non-members").

The reality is, first, that church members gossip, and one of the favorite topics is who is or is not keeping up. Members are very sharp-eyed, and will often start chatting immediately if a member stops going to the temple with the ward, or is released from a church calling for no apparent purpose. This is compounded by the fact that church leaders gossip. Not the First Presidency, of course, but gossip is endemic among local leaders.

I cannot count the number of times I have been told private, personal information by a bishopric member or elders' quorum presidency member, where is appears that the disclosure is for no reason other than to gossip. (As a member of the Elders Quorum presidency, I am often privy to personal information -- I mean instances beyond where my calling would suggest I need to know certain facts). There are numerous reasons for this, I am certain -- People like to name-drop, they like to show off that they have information, people are not good at keeping secrets. I am certain that I have, at times, engaged in such gossip myself (I don't remember specific instances, but gossip is like that -- and yes, I try not to). Information that I have been told (again, without apparent reason) includes members' tithepaying status. This has occurred in more than one ward (and I haven't been in the Elders Quorum presidency in other wards -- so there was no possible reason I should be privy to such information).

And, related to their gossip, church members ostracize and form cliques. Because of this reality, I am not convinced that social pressure does not coerce tithepaying. The idea that tithing is between the member and the Lord is certainly how things should be, but I think it is often not how they actually are.

2003-11-17T08:44:00.000-08:00

Utah and "Generosity"

My co-religionist and frequent sparring partner Matt Evans has a new post discussing how "Red States" are more "generous" (more on this definition to come) than "Blue States." For the chart that Matt discusses (which was put together by someone else), click here. Matt also notes that Utah and Wyoming have the highest "generosity" totals.

However, as the chart makes clear, generosity is measured by the amount of itemized charitable contributions. I have reservations about a system where itemized charitable contributions are considered the equivalent of generosity.

Generosity can be defined (to use dictionary definitions) as "Liberality in giving or willingness to give", or "the trait of being willing to give your money or time". The term has a definite connotation of being willing to go the extra mile to help others out.

At the very least, many kinds of generosity are simply not reflected in one's itemized charitable contributions. Whether giving money to a homeless person on a street or in a subway, helping out a stranger, visiting the sick, many things are simply not reflected on one's tax return. (One imagines the tax return of a certain Samaritan, writing off "oil and wine, inn lodging, and 2 pence cash paid"; or perhaps a revision of the famous passage in Matthew 25 -- "Then shall the righteous answer him, saying, Lord, when saw we thee an hungred, and fed thee? or thirsty, and gave thee drink? When saw we thee a stranger, and took thee in? or naked, and clothed thee? Or when saw we thee asick, or in prison, and came unto thee? These things are not reflected in the itemized deductions section of our tax returns!").

The general problems with using tax return data as evidence of generosity are compounded when the data is arguably tainted by other factors. Many residents of Utah, a state Matt lauds for its generosity, are Mormons -- members of the Church of Jesus Christ of Latter Day Saints. (Full disclosure: In case readers have not yet figured it out, I am a church member as well). The church requires that members pay a tithe of 10 percent. There are strong social (and church members believe, spiritual) consequences for not doing so. There is a strong possibility that many members who pay tithing do so not because they want to be generous, but because the Bishop will take away their Temple Recommend if they don't; they may be subject to censure (formal or informal)* and feel ostracized from their community. (This is not to say that such payments are not charity of some sort -- just that they may be less motivated by a true impulse of generosity and more by selfish reasons).

*EDIT/UPDATE: I had originally written that non-payment of tithing might lead to disfellowship (an official discipline), but Matt informs me that non-payment of tithing alone is not grounds for formal disfellowship.

2003-11-15T07:39:00.000-08:00

In the Poetry Section

I'm not a regular reader of Michele's A Small Victory, but when I wandered over there on a link-to-a-link-to-a-link, I saw a very funny (short) commentary in the form of a poem:

"Moore-On"

Here lies Roy Moore
forgot what a courthouse was for
No judge, no more.

Michele's revision of a well-known doggerel certainly had me chuckling.

2003-11-12T16:22:00.000-08:00

Cleaning Up

I made a few touching-up changes to the blog. It all began when I decided to add an Operation Give button. That led to me updating the blogroll somewhat, including putting up a link to law review publishing tips.

Now I can ignore the template for another 6 months.

Edit (November 14): Still not quite satisfied, I just tinkered with the template again. Hopefully that got it out of my system.

2003-11-05T07:11:00.000-08:00

Op Give gets a Spiffy New Look

The web site of Operation Give is looking great these days. They have made it as easy as possible for people to give toys to Iraqi kids. The mission, of course, remains the same worthy cause as it always was.

2003-11-04T16:31:00.000-08:00

Justice Janice Rogers Brown and the Mainstream

There has been some debate in the blogosphere (and elsewhere) over whether or not Justice Janice Rogers Brown, a nominee for a federal judgeship, is within or without the "mainstream" of legal thought (however that is defined). (See, e.g. here, here, and here).

Without getting into the merits of Justice Brown's views or the propriety of Democratic filibustering (both of which are subjects beyond the scope of this short post), I wanted to point out Justice Brown's apparent concession that she is indeed outside the mainstream of legal thought. In a relatively recent speech, she states that:

"There are so few true conservatives left in America [and she earlier defines herself as one of them] that we probably should be included on the endangered species list."

Take a moment to let that assertion sink in. Remember, the relevant inquiry for this particular question is whether Justice Brown is within the mainstream of legal thought. And note that Justice Brown apparently defines conservatism in a way which (1) includes herself, yet (2) includes so few others that they "should be included on the endangered species list."

Do I really need to point out that one who espouses a political position which is only shared by an endangered-species-sized number of others is by definition outside the mainstream? Whatever the mainstream is, however it is defined, it certainly must have more than an endangered-species-sized number of adherents.

The obvious rejoinder to this critique is that Justice Brown is simply employing rhetorical language. Indeed, I believe she may indeed be using rhetorical language in her speech. However, I have some concerns about her apparent tactic of expressing to one body that she espouses a brand of conservatism whose adherents number in the endangered-species range, while at the same time claiming to another body that she is within the legal mainstream.

2003-10-30T11:18:00.000-08:00

Another time-waster

As several bloggers have pointed out, online political quizzes are just cute time-wasters. That said, the Supreme Court Quiz was pretty fun (purporting to show which Justice most closely shares my judicial philosophy).

The results in my case (more or less accurate, probably) were:

1. Ginsburg
2. Breyer
3. Souter
4. Stevens
5. Kennedy
6. O'Connor
7. Rehnquist
8. Scalia
9. Thomas

Of course, I'm not sure if I trust an algorithm in which it is apparently impossible to select Souter as #1. (Perhaps the algorithm was designed by a devious Republican who may have heard too many chants of "No More Souters!").

2003-10-30T08:13:00.000-08:00

Law Publishing Tips

I have drafted a short tip sheet about how to be published in law reviews, and it has been posted on Columbia's web site (with light editing from professor Dorf). For those interested in some nuts and bolts of the law review publishing process, my tips are available here.

2003-10-20T09:35:00.000-07:00

Quick note

I've been exceptionally busy preparing to go out of town this weekend. However, I would be remiss not to note that Nate Oman has posted a very thoughtful commentary about my forthcoming article, Nullificatory Juries, and my co-author David Hoffman has replied (also posted on Nate's blog). (Okay, I know, I'm a little late with this post.)

2003-10-06T09:55:00.000-07:00

Operation Give kicks off

I'm excited to see that a web site has gone up for Operation Give, a non-profit organization for providing toys to Iraqi children. Whatever one's views on the war, Op Give is certainly a good cause.

2003-09-26T09:23:00.000-07:00

Should Dustin be shutting down shop -- or putting up a "For Sale" sign?

I mentioned earlier that Dustin is ending his blogging career over at Legal Guy. His exit from the blogosphere may be required, as he states. However, there is quite a bit of invested social capital, time, and effort in Legal Guy. In fact, Legal Guy is a blogosphere brand of sorts. Which makes me wonder -- why shut it down, when he could sell it to a buyer who wanted to instantly establish blogosphere credibility.

For exaple, what might happen if Dustin listed Legal Guy on ebay?

For sale, blog address. Includes the following:
Recognizable name.
Established readership.
Established listing on blogrolls. (See Technorati - Legal Guy is linked by 13 other blogs).

I imagine he could get a few bids. A target might be new law student blogger(s) who want to begin with a somewhat established readership. He could even include a small overlap period in the sale, and a few introductory posts to help transaition to new ownership, like "This is my new co-blogger Jane, I hope you like her" before bowing out.

The downside would be that any new owner might take the blog directions Dustin didn't like, and he might not appreciate their use of his established credbility to that end. On the other hand, I'm not sure that this is a less desirable outcome than the destruction of the brand.

(Another downside might be that, if enough of Dustin's readers are aware of the outright sale of the brand, they would not accept new ownership. It might be best for him to keep the sale as non-public as possible).

2003-09-26T06:39:00.000-07:00

Bake Sales

There has been some discussion in the blogosphere of SMU's decision to shut down a bake sale where different prices were charged based on the buyer's gender and race. (See, e.g., Volokh here and here). The bake sale was apparently intended as an illustration by the conservative student organization of what they viewed as unfair affirmative action policies.

Interestingly enough, I recall that when I was in school, a women's student organization used the same technique to advance a liberal argument: They sold cookies that cost a dollar for men and 75 cents for women, as I recall, in order to illustrate that men are paid more than equally qualified women.

I kinda liked the argument then (and the cookies were tasty), and I kinda like it in the SMU context. Any time differentiating policies are applied (voluntarily or involuntarily, formally or informally), it is good to think about them and discuss their justification and consequences, whether or not one eventually agrees with them or not.

In the meanwhile, I think it is important to the current discussion to note that the bake-sale technique is used by people of all political leanings. This means that two questions Eugene Volokh and other critics may want to ask are (1) whether SMU has held such feminist or other liberal bake sales, and (2) and if so, whether the decision about this bake sale was made because a conservative group, not a liberal group, was using the bake-sale technique.

2003-09-25T15:24:00.000-07:00

No More Legal Guy?

Alas, it looks like Dustin "the Legal Guy" is exiting the blogosphere (and just when the argument was getting good). Maybe he will finally tell us what the translation of "Ratio Legis Est Anima" is! (Just Kidding). Well, Dustin, we'll miss you.

2003-09-25T14:20:00.000-07:00

I'm on the SSRN again!

The article "Nullificatory Juries," which I co-wrote with David A. Hoffman, is now available for viewing and download on the Social Sciences Research Network.

And in related good news, the article has been accepted for publication by the Wisconsin Law Review (Horray!).

So what exactly is a nullificatory jury? Read the article and find out!

2003-09-21T06:05:00.000-07:00

A few responses to my ACLU post

Two other LDS bloggers, Dustin over at Legal Guy and David Sundwall at A Soft Answer have posted some thoughful responses to my earlier posts about the ACLU. I was also a bit surprised (since I thought that interest in this topic was limited to the small universe of LDS law geeks) that a response was posted by a non-LDS blogger at Tainted Law (and see also this post). (Note to gentle LDS readers: Don't let the tongue-in-cheek "Themes" of Tainted Law chase you away. The themes are randomly selected from a lengthy list, and change each time you refresh the page).

I appreciate these responses, and when I have a spare moment, I will respond. So far, I have not had too many spare moments. (Such is the life of an associate at a large NYC law firm).

2003-09-19T13:07:00.000-07:00

Hi Greg!

My law school colleague (and generally interesting and amiable source of argument, political punditry, and legal theory) Greg Diamond has entered blogistan with a show of force. His blogs can be located here and here.

Though Greg's blogs will apparently employ at least four different narrators, I can attest to the fact that there is only one Greg Diamond, which is probably a good thing -- I don't know if the world could handle more than one. Welcome to the blogosphere, Greg!

2003-09-17T08:53:00.000-07:00

Crooked Timber debunks that "wrod as a wlohe" paragraph that's in popular circulation

Kieran of Crooked Timber has a masterful critique of the idea (in wide circulation on the internet over the last two days) that words can be read using only the first and last letters. Kieran's proposed more accurate test of the procedure quickly dispels the idea that "wrods as a wlhoe" can be read if only the first and last letters are correct:

Recrsheears souhld csrncotut secntnees unisg olny wodrs edxcieneg terhe lttrees. Tihs wlil psoe seevral polrbems beaucse wwreell-ittn Esglinh sluohd nlurtaaly cointan mnay sorht wrdos iunidnlcg pvrn-eborses, gtienvie csaes, cncoeinvets and (howpos) penrpsoitois, aongmst many ohtres. Lnoegr wrods soluhd povre useufl when tteinsg tihs ieda. Fatiensnredg wdors dviorecd form hplfeul cnotext mhgit aslo mkae fnie cidenadats for (siht) iiulsocnn. Eelhapnt. Preorpritay. Mainargl. Avtrinmdatiise. Boyend. Caainnbl. Wree tsohe tcekriir tahn tpyical sentecens? Ppostecirve linigusts wlil find csnuotntrcig w-llromefed, ativce senetcens fere form tohse mnay hfepull sroht wrods raehtr dcffiuilt. Tihs txet semes edecnive eonguh of (carp) taht ponit. Neevretslhes, linigstus slohud sitrve twoards tihs gaol. Cvioncning sitedus msut searapte ecah slaml wdor’s cepvidnino-troxtg rloe form the (admn) sipecfic ieda taht praticular otparhghiroc tosntrianipsos gaurantee taht sesne wlil reiman eevn toughh itrnael snbairmclg occrus. Fanlily dleabielrty minlaaitpnug sacmrbled lteter order sohlud mkae tihngs eevn mroe duffiilct. Raeeedrs wlil fnid wdros wtih vbres or (fcuk) cooatsnnns aaenrrgd ceiuoesctlnvy mkae uiansmnrbclg mroe dcffliiut.

2003-09-11T14:02:00.000-07:00

a test post

2003-09-02T13:53:00.000-07:00

I'm on the SSRN!

My article about treating slavery as a takings clause violation (imaginatively titled "Slavery as a Takings Clause Violation") is now available for download on the Social Sciences Research Network; the link to the article abstract (and corresponding download button) is here. I really liked writing this article, and it's going to be coming out in American University Law Review in October.

2003-08-29T18:50:00.000-07:00

Can a Mormon Support the ACLU?

This discussion will be a lengthy elaboration on a prior post addressing why I, as an LDS member, support the ACLU. The prior post discussed whether LDS members should support the ACLU given its litigation against the church.

I received a thoughtful response to my post from my brother Craig, who wondered if other aspects of the ACLU’s political beliefs are at odds with church beliefs. This post will address that question, which turns out to be quite complex.

Two notes up front: First, this discussion is written from the point of view of an active Latter-Day Saint who is also an ACLU member. I will discuss scripture and church belief; readers who are not interested in somewhat in-depth religious discussion are forewarned. The second note is that, to keep the posts readable, I will split this discussion into three posts on the blog. And now let us move on to a few threshold points which are central to the discussion.

First threshold point: The need to examine more than just religious litigation

One issue to address up front is the need to examine the ACLU in more areas than solely religious litigation. My earlier post discussed the ACLU's religious litigation and concluded that such litigation was not irreconcilable with church beliefs. However, it is conceivable that the ACLU may have other beliefs which are not reconcilable with church membership. That is, an organization could be compatible with church membership based on its position on religious litigation, but could be anathema to church membership because of beliefs in other areas.

The general proposition from which to begin, then, is that for ACLU membership to be consistent with church membership, such a position should be free from conflict not only in the religious-litigation arena, but in all substantive areas. If an ACLU position is found to be irreconcilable with church doctrine, then church membership may not be consistent with ACLU membership.

Second threshold point: The distinction between religious commandment and legal law

The second threshold point, which is vital in this discussion, is the recognition that an act may be spiritually condemned -- it may be a sin -- while at the same time legally permitted -- it is not a crime. (The reverse, of course, also holds true -- an act may be a crime but not a sin).

This characteristic is inherent in non-theocratic legal systems (and, it could be argued, it exists in some theocratic systems as well, to the extent they are not based on correct doctrine). The United States is a non-theocratic legal system. As LDS members, we may support non-theocratic legal systems, and indeed are encouraged to do so. (See Article of Faith #12). (Some theocratic systems are also spoken of highly in scripture; but, the government of the United States, which is non-theocratic, is explicitly approved in scripture).

Because we are encouraged to support this non-theocratic system, an LDS member can believe acts are sins, independent of any determination by the state that such acts should or should not be considered crimes. There are numerous examples of sins that are not crimes: Everything from alcohol consumption or pre-marital sex, to non-belief in Christ or non-payment of tithing, are sins -- yet they are generally not crimes. (It is also true, of course, that some sins are crimes, but this is not a universal correlation).

Understanding the sin / crime distinction is central to reconciling church and ACLU membership because, at their core, the two organizations focus on different areas entirely. The church is concerned with spiritual laws, on obedience to commandments which will result in eternal life in the world to come. The ACLU is focused on temporal laws, and on the effects of laws that govern our physical acts. The church focuses on which acts can draw God's condemnation, while the ACLU focuses on which acts can draw the state's condemnation. They operate largely in independent spheres.

This discussion foreshadows much of the later analysis. At this point, it is sufficient that the reader realize that certain acts can be sins while not being crimes -- that is, that there exists a sin / crime distinction -- and that this distinction is entirely consistent with LDS doctrine.

A related note is necessary here: The Scriptures do indicate that societies in which temporal laws deviate too sharply from spiritual laws will face the anger of God. (See, e.g., Mosiah 29:27). The import of this principle on behavior is not clear. LDS members should strive to instruct and set an example for their neighbors. Should the sin / crime differential become too great, the scriptures tell us that society will be ripe for destruction. However, church members are not encouraged to go against the democratic or legal process (Mosiah 29:26).

The conclusion on this point is that the sin / crime distinction exists, and that LDS members should expect it to exist. It is not itself a bad thing. However, too broad of a sin / crime gap can lead to God's punishment.

Third threshold point: Balancing of good

The third and final threshold point is what I will call the balancing of the good. Many organizations have beliefs or teachings that stretch across a large number of subject categories. The church is such an organization; so are many political organizations including the ACLU.

In considering the merits of an organization, it seems to me to be necessary to consider the balance of good -- that is, if an organization has taken several positions on several different subjects, that a church member weigh the total (how many positions she agrees on, how many she does not) in order to decide whether or not to support that organization.

This principle is common in politics. A person may vote for a Democrat because he agrees with that candidate's view on the environment, even if he disagree with her view on abortion. A voter may vote for a Republican because he agrees with a candidate's view on taxes, even if he disagrees with her view on gun control. Balancing of the good is a practice that church members (and other people) are accustomed to engaging in.

Examples of Balancing of the Good

A few examples can help illustrate the principle of balancing the good. For one example, consider the American Heart Association. It has published papers about how drinking 1-2 glasses of red wine per day can cut down on cardiovascular disease. The AHA does not make an across the board recommendation, because they say that alcohol use for this reason should be discussed with the physician, but notes that "Moderate intake of alcoholic beverages (1 to 2 drinks per day) is associated with a reduced risk of CHD in populations." This statement -- that drinking wine can be good for one's health -- is a position counter to the Word of Wisdom.

A second example can be found in many (if not most) scientific organizations. For our example, we will use the Smithsonian. The Smithsonian Institution, a wonderful museum and resource, also supports the theory of evolution. Such a position is counter to the stated beliefs of the church on that issue.

Can an LDS member donate to either organization? Certainly. The LDS member may quite reasonably feel that the good work done by the AHA is important enough to support them, despite its statements on alcohol use, or that the Smithsonian (or other museum or scientific society) is important enough to support despite any disagreement on creation. The same principle could apply to donation or assistance to Catholic charities, even though they have contrary beliefs on the priesthood and the authority of the Prophet, or to donations to one's alma mater, even if the school leadership has expressed beliefs contrary to church doctrines.

Balancing of the good is a practice that LDS members can and should engage in. Church members should not reserve their generosity for perfect organizations, but should actively strive to improve society, even through (or especially through) imperfect organizations, as long as those organizations have a balance which favors the good.

Recap

To recap the points discussed thus far, they are:

(1) Church members should examine all facets of ACLU belief to see if it conflicts with church doctrine;
(2) The existence of a sin / crime distinction is not counter to church belief, provided the gap between the two is not too great;
(3) Organizations should be judged on a "balancing of the good" test.

I will now discuss some substantive areas of church doctrine and ACLU belief, and move on to the second post in this series in order to do so.

2003-08-29T18:16:00.000-07:00

Can a Church Member support the ACLU? (Part II)

This post is a continuation of my prior post discussing whether an LDS church member could support the ACLU. The prior post set out threshold points including the sin / crime distinction and the idea of balancing of the good. This post will discuss areas in which LDS doctrine might be seen as conflicting with ACLU belief.

Potential Areas of Conflict

The first step we will take in reviewing the doctrines of the two organizations for conflicts is to make a preliminary assessment of areas where any conflicts are likely to exist. At this stage, the assessment will be a largely intuitive matter, a simple listing of areas of law or politics where, based on my observation, church members often seem to be at odds with the ACLU or its perceived position.

And at first glance, there are several areas in which it seems possible church doctrine and ACLU belief could come into conflict. These include drugs, abortion, the death penalty, affirmative action, immigration, welfare, gay and lesbian issues, women's rights, gun control, prisoners' rights, the Boy Scouts, and national security.

We will now begin a closer examination to see which of these issues (if any) present real potential conflicts, and which are red herrings.

Drugs

The church position on drugs is clear: Drug use is a violation of the Word of Wisdom and is contrary to the commandments.

The ACLU stance on drugs is quite different. The organization argues that the "war of drugs" should be ended and that most drugs should be decriminalized. The ACLU has litigated against mandatory minimum sentencing laws and against drug policies that are perceived as having a disproportionate impact on minorities.

These two positions are certainly different. However, they are very much reconcilable. The church position is that one should not use illegal drugs -- just as one should not use alcohol, tobacco, tea or coffee. This spiritual admonition does not require an accompanying legal ban. In fact, for every other aspect of the Word of Wisdom, there is no accompanying legal ban. Tobacco, alcohol, coffee and tea are perfectly legal substances. Church members are not required to maintain abolitionist positions on these substances.

To put this in terms of the prior discussion on sin and crime, the LDS belief in that use of some substances is wrong (sin) does not require members to support legal restrictions on the use of such substances (crime). As long as the ACLU is not actually promoting drug use -- and I have seen no evidence that it is -- its position in favor of decriminalization of drugs does not appear to conflict with a belief in the validity of the Word of Wisdom.

The Death Penalty

The ACLU is opposed to the use of the death penalty.

It has been my experience that many church members favor the death penalty. Utah is a death penalty state. Recently, there has been some media coverage of Utah's practice of firing squad executions and these have been attributed to Mormon belief.

Such a connection is tenuous at best. Despite public sentiment in favor of the death penalty, there is no requirement that church members support the death penalty. The church has no position on the death penalty that I could locate.

(Church members who support the death penalty can point out that there is no lack of scriptural verses which could be used to support a belief in the death penalty (such as Captain Moroni's execution of dissenters in Alma 62:9-10). However, there are an equal number of scriptural statements which could be used to support a position against the death penalty, such as Matthew 5:38-39 or John 8:3-11. The scriptures do not clearly indicate that either position is correct.)

Because the church has no position on the death penalty, there is no conflict between its position and the ACLU position.

Welfare

The church encourages self-sufficiency and hard work. The ACLU has litigated against restrictions on welfare and opposes many so-called "welfare reform" statutes.

Is the ACLU position contrary to the church's position? There is no reason to think that the two cannot coexist. The church encourages people to work for a living, and promotes ideas such as self-sufficiency and emergency preparedness. Such a belief can coexist with the idea that some people may need welfare assistance due to lack of education, emotional or physical handicaps, addictions, or other long-term problems. In fact, many scriptures emphasize the need to give to the poor -- which is exactly what the ACLU focuses on.

There is room for disagreement, since church members may think that the ACLU's tactics are not the most effective way to help the poor. However, there is nothing inherent in the ACLU's position on welfare that is irreconcilable with church beliefs.

Affirmative Action and Racial Justice

The ACLU supports affirmative action. On other race-related issues, the ACLU has worked to protect voting rights of minorities and has litigated against police abuse against minorities.

On many of these issues, such as police abuse or voting rights, there is obviously no conflict. The church has no position on affirmative action. However, church leaders are required to be called by revelation. (See Article of Faith 5). Thus, it seems likely that the church would be opposed to any requirement that its appointment of leaders be subject to affirmative action. However, the ACLU has not, to my knowledge, advocated such a position. The Civil Rights Act has an exception for religious organizations, and in addition the Supreme Court has firmly established a right to appoint ecclesiastical leaders without state regulation.

(The church's previously held position that Blacks could not hold the priesthood may have been criticized by the ACLU. I do not know whether or not this is true; the church has had its new policy for as long as I can remember).

Thus, I do not see any conflict between church doctrines and the ACLU's support of affirmative action and other laws intended to help racial minorities.

Immigration, Prisoners' Rights, National Security, and Gun Control

I group these four together because I think they are truly red herrings. The ACLU does have positions on many of these topics. And the ACLU position is often, in my experience, at odds with individually held political beliefs of some church members. The church, however, does not have positions on these topics, and there is no reason a church member cannot support the ACLU positions in these areas.

Recap of Discussion thus far

Thus far, the discussion has examined ACLU beliefs relating to many issues and found no conflict with church doctrines. These areas are drugs, death penalty, affirmative action, welfare, and some red herrings (gun control, immigration, prisoners' rights, and national security). Each of these areas has needed only a brief discussion to establish the lack of conflict between ACLU and church beliefs.

There remain three major areas (and one tangential area) of potential conflict which will require more in-depth discussion. The three major areas are women's rights, gay and lesbian rights, and abortion; the tangential area is the Boy Scouts. The third post in this discussion will address these issues.

2003-08-29T07:13:00.000-07:00

Can a Mormon Support the ACLU? (Part III)

This is the third and final post addressing the complicated issue of whether church membership is consistent with ACLU membersrehip. The prior two posts dealt with threshold issues in the discussion and with many areas in which it was determined that no conflict existed. This post deals with three more complicated issues (as well as a tangential issue): Women's rights, gay and lesbian rights, and abortion, and the tangential issue of the Boy Scouts.

Women's Rights

The ACLU has litigated in favor of women's rights and fought workplace discrimination. The church, meanwhile, has stated that men and women have different roles in God's plan, especially in the care of the family.

Many of the ACLU's actions regarding women's rights are clearly compatible with church beliefs. There is no church doctrine, for example, supporting sexual harassment or workplace discrimination in most settings. Ecclesiastical positions, as noted above, are exempted under law so do not present a problem.

There is one aspect of women's rights where the ACLU position is at odds with the church position. That is the Equal Rights Amendment. The ACLU supports the ERA while the church has opposed it (see this article).

Much of the church's opposition to the ERA appears to be based on issues which will be addressed later in the discussion (homosexual issues and abortion) and which may have their own solutions (as we will discuss). However, the fact remains that the ACLU supports the ERA and the church discourages its members from supporting the ERA. This is a direct conflict which can only be resolved by a "balancing of the good" (as discussed in the first post) -- that is, a church member may support the ACLU if he feels that the good that they do outweighs any harm from their support of the ERA.

Abortion

The church is opposed to abortion except in cases of rape, incest, and life or health of the mother. The ACLU has a strongly pro-choice position, defending a woman's right to an abortion and litigation against restrictions on that ability.

These positions are at odds. Much of the difference can be reconciled by reference to the sin / crime distinction. That is, it is possible to believe that abortion is a sinful act, which a church member should not engage in, and also to believe that abortion is a subject which is not appropriate for state regulation.

However, it is difficult to fully reconcile all of the ACLU position -- including opposition to parental notification, abstinence education, and hospital choice about whether to provide abortions -- with the church position. It seems to me to be possible to reconcile all of the ACLU position by using the crime / sin distinction. But a more comfortable reconciliation, at least for me, is done by balancing the good -- recognizing that the ACLU does much good, and either refusing to accept the entire ACLU position on abortion, or finding that, on balance, any harm caused by the ACLU position on abortion is outweighed by the good the organization does.

Homosexual Rights (also addressing Boy Scouts)

The church has strongly opposed homosexual behavior as well as gay marriage. The ACLU, in contrast, defends homosexual rights including gay marriage.

These positions appear very dissimilar. But there are many aspects in which there is no disagreement. For example, the church believes homosexual acts are a sin. The ACLU does
not dispute this characterization. Similarly, the ACLU has brought cases and advocated that gay kids not be discriminated against at school; that gay employees not be discriminated against at work; and that laws criminalizing homosexual behavior be struck down. None of those positions are contrary to official church position.

In short, there are many areas within the rubric of "homosexual rights" where there is no direct conflict between church position and the ACLU position. Much of the lack of conflict can be traced to the sin / crime distinction. However, there are areas with more direct conflicts. Those areas deserve some attention:

Gay marriage

The church is opposed to gay marriage, while the ACLU has argued that it should be legally allowed. This area is actually less problematic than it first appears. A church member can believe (1) that gay marriage is wrong -- that it is a sin -- because homosexuality is contrary to gospel commandments, but (2) that the state should not discriminate in this area, i.e. should permit gay marriage. Such a position is consistent with the sin / crime distinction.

The issue is complicated, however, by the fact that the church has campaigned against gay marriage in California. This gives some indication that church members should not support gay marriage. I am unsure of what weight to give the fact that the church has campaigned politically on this issue. It may still be possible to resolve differences in gay marriage using the sin / crime distinction. To the extent that church activity in the political arena suggests that this distinction could not be employed to reconcile the two positions, the church member must use the balancing of the good test, and could reasonably conclude that the good done by the ACLU outweighs any harm done by their position on gay marriage.

Gay adoption

A very similar outcome applies to gay adoption. Again, the church does not support adoption by homosexuals, while the ACLU has supported a right to such adoptions. Again, the difference can be reconciled at least in part by reference to the sin / crime distinction -- it may not be inconsistent to agree on spiritual condemnation of behavior while allowing the state's criminal or civil laws to permit such behavior. And again, the church's political statements make me unsure that the difference can be fully resolved using the sin / crime distinction. Any difference that cannot be resolved using the sin / crime distinction could reasonably be resolved under the balancing of the good test.

Boy scouts

The final potential issue, which is related to gay rights, is the difference of opinion regarding the Boy Scouts. The church has supported the Supreme Court decision allowing the Boy Scouts to exclude homosexuals, while the ACLU opposes that decision. This issue is peripheral. The difference can be explained using the sin / crime distinction -- it may be morally right for the Supreme Court to rule as it did, but constitutionally inconsistent. As
for the underlying issue, again, it is quite possible, using the sin / crime distinction, to maintain that the Boy Scouts are required under the Civil Rights Act to admit homosexuals, while also believing that homosexual acts are not allowed under gospel principles.

Conclusion

This lengthy discussion has shown, I hope, that ACLU membership can be consistent with church belief. Not all church members will support the ACLU, of course. Because this discussion has relied in part on a balancing test for which individual members will have different results, it is possible that many church members will find ACLU membership to be inconsistent with their personal church membership. However, the balancing tests may also, depending on the member's feelings on the issues, reasonably be resolved in the other way, allowing (as in my case) for ACLU membership consistent with church membership.

This discussion has treated the statements and positions of both organizations in a substantially similar, impartial way. I recognize that church membership is very different than ACLU membership. Church membership is a way of life, while ACLU membership is a small political statement. I know that the church is true and have a testimony of the church in a way that I will never have with the ACLU, or any other purely temporal organization.

However, I do think that the ACLU does much good in the world today. I am proud of both my church membership and my ACLU membership. I believe that both organizations do many important things. And because I find both organizations to be beneficial, I am very happy to be a member of them both.

2003-08-21T14:21:00.000-07:00

More to come on the ACLU

My post supporting the ACLU has generated quite a bit of e-mail and interest. I have had a very interesting (ongoing) e-mail discussion on this, and plan to post more shortly. Work and family responsibilities have kept me too busy to put up my thoughts in a coherent way, but I will do so shortly.

2003-08-15T07:29:00.000-07:00

And in the darkness bind them

We have survived the great blackout of 2003. I had the day off, so I was home when it hit. Which was nice. Because otherwise I would have had to have gone down 40 flights of stairs (after being freed from a stuck elevator, most likely), and then gotten from 50th street up to 225th street without subway service, with taxis reportedly moving at a rate of 2-3 blocks per hour. (This with the cash in my pocket (about $15), since ATMs were dead, and with most stores closing, on a nice, balmy 90 degree day.)

On the one hand, I sort of wasted a day or two of vacation, because I would have had a lot of time off anyway. On the other hand, it would have been a lot less fun.

The blackout had one (small) upside. We were able to take the kids outside and looked at Mars in the sky. We could see all sorts of stars, too. Not the usual night sky for New Yawk City, where you're lucky to be able to see the moon.

2003-08-14T08:55:00.000-07:00

One Reason I *do* Contribute to the ACLU

Dustin the Legal Guy, a fellow LDS blogger, has posted a short discussion entitled "Why I Will Never Contribute to the ACLU."

Well, I am both a church member and a genuine ACLU contributor (a "card-carrying member of the ACLU"). I understand the dislike some church members have for the ACLU. I don't agree with every position the ACLU has ever taken. However, I think that it serves a very important role in protecting underrepresented and minority groups. And in doing so, it protects LDS members even more than the general populace. This is, of course, because Mormons are, nationwide, very much an underrepresented group. Because the ACLU protects my rights as a member of a religious minority, my ACLU membership is very important to me as a Mormon.

It is possible to lose sight of the fact that Mormons are an underrepresented minority, especially if one lives in Utah, Arizona, Idaho, or other places where there is a large LDS populace. However, in most of the country, we are a politically weak (politically non-existent) minority, and the ACLU helps prevent other majority religions from oppressing us.

[The following two paragraphs partially adapted from an e-mail I posted on the LDS listserv].

I don't know how many LDS people are aware that one of the lead plaintiffs in Santa Fe v. Doe, which struck down some "school prayer" programs, was an LDS student. That plaintiff was an LDS student who had been harassed by other students and teachers for being LDS, had been told by teachers that the church was wrong. That is, of course, exactly the kind of behavior majority groups can inflict on minority groups.

The ACLU suit in that case had several effects. For the LDS plaintiff, the suit had the effect that school officials could no longer harass LDS students (i.e. the plaintiff) and tell them that the church was wrong. That's a good result for church members everywhere, which is why I am consistently surprised by the number of e-mails I get from LDS relatives about why "school prayer" is good. As the facts of Santa Fe point out, "School prayer" = license to harass LDS kids. Why exactly am I supposed to like that?

I'm not a Utah Mormon. I've never lived in Utah (except for a month at the MTC). I have lived in Mesa, Arizona for several years, which is similar in many respects to Utah, but I've also lived large stretches of life in areas where church members were practically unknown. I lived for several years in Oklahoma, where I was one of a handful of LDS kids at the school. I now live in New York, and my oldest son is the only LDS student at his school.

And as an LDS member in a non-LDS area, I am very grateful for the ACLU. I am glad that no one is teaching my son prayers at school. I'll do that myself, thank you very much. I'm glad that groups like the ACLU prevent the state from blatantly supporting religions, because any support would go to groups I am not a part of.

I sometimes joke that I should pay $20 a year in extra tithing to cancel out negative effects of my ACLU membership dues. But the fact is, I find my ACLU membership very much consistent with being a church member.

2003-08-13T09:23:00.000-07:00

Volokh slips up, reveals real Jewish conspiracy

Eugene Volokh and his cohorts over at the conspiracy have been discussing the Protocols of the Elders of Zion, a famous antisemtic fraud about how Jews like to cook with Gentile blood, etc. (See also here, here, here).

Now, however, Volokh has made a shocking admission: He and his co-bloggers (who are overwhelmingly Jewish) in fact "want [readers'] eyeballs"!! (Presumably for some nefarious purpose, such as the martini-olive-substitute made popular in Shrek). All together now: Ewwww!! Yuck!!

I must encourage readers to write Volokh and protest this decision to collect eyeballs. If he receives sufficient protest, perhaps he and his co-conspirators will decide just to use olives in their martinis.

2003-08-06T18:46:00.000-07:00

Will Ben Richards join Captain Freedom?

Well-cultured cineasts are familiar with the classic movie The Running Man, which featured unforgettable dancing, matronly grandmothers betting on death games, and not least of all a titanic struggle between two beefy actors, Arnold Schwarzenegger (the hero "Ben Richards") and Jesse Ventura (the evil but popular "Captain Freedom").

In 1998, Jesse Ventura became a different kind of running man, running for the governor's office and winning in Minnesota. His Running Man colleague Arnold is now apparently following in his footsteps.

One has to wonder whether Ben Richards will have the political knack that Captain Freedom showed. Richards seemed rawer, less politically adept, and besides he gave us the memorable one-liner, "I'm not into politics, I'm into survival." However, Richards did eventually beat Captain Freedom in the movie. And that alone makes me think that, until shown otherwise, the smart money is on Ben Richards getting the next (political) kill.

2003-07-31T15:01:00.000-07:00

A new low at Volokh.com

Alas, Dan Drezner, one of the guest conspirators at Volokh, has used the term "idiotarian" in a post. I've never understood the glee that some bloggers find in throwing around terms like "idiotarian." (This is, as far as I can tell, the first time Volokh.com has stooped to that level, though the term does also appear in one direct quote from Reynolds).

Why don't I like "idiotarian"? The word (if it can be so considered) is either incapable of definition, or so loosely defined as to be nearly useless. I believe the accepted working definition, such as it is, is a "top 10 list" style post on LGF. But that list, with its lengthy recitation of cliches and bumper-sticker slogans, is not really a helpful definition. In fact, I would argue that the only possible definition of "idiotarian" -- based on my reading of a large number of blog posts using the term -- is "someone who disagrees with the speaker." In addition, the term (1) appears to be used exclusively by right-of-center bloggers, and (2) is clearly derogatory. When these factors are combined, the term "idiotarian" expresses the sentiment "this is someone who disagrees with me [generally in a right / left political setting] and who I therefore equate with an idiot."

Do I really need to explain how poor a form of argument that is?

In case the problems are not self-evident to some readers, here are some reasons this is a problem. Invoking this term is a rhetorical shortcut which immediately labels the subject's arguments as unworthy of addressing. This is known as "name-calling" (conclusory labeling of one's opponent as something the reader finds undesirable) and is generally not considered a proper type of argument for adults. This does nothing to address the other person's points, and indeed tries to draw attention away from those points. In place of nuance, this technique can serve to cluster all of the speaker's opponents into the same camp ("idiots" or "idiotarians") which then obscures any attempt to actually weigh the merits of their arguments.

I realize that it is usually harder to carefully address another's argument than it is to simply call him an idiot. There are a limited number of weblogs who have been able to do so. They include real gems like Volokh, Crooked Timber, and Discriminations. I greatly enjoy reading intelligent discussion of interesting topics without the mudslinging that too often accompanies such discussion. That is why I sincerely hope that the appearance of "idiotarian" on Volokh is only a momentary aberration.

2003-07-25T18:29:00.000-07:00

More odd news

It's a new variant on the old story of the incompetent bank robber. This one's in the AP, so it might actually be true.

2003-07-25T18:05:00.000-07:00

The Family that Steals Together . . .

Wow. I find this news story to be at times poignant, at times hilarious, and all around just unbelievably strange. People sure are odd sometimes.

2003-07-25T13:16:00.000-07:00

Hard at work or hardly working?

This CBS news story about FBI translators being told not to work, so that the department would appear understaffed, is really disturbing. (Link via Instapundit).

2003-07-18T13:49:00.000-07:00

Lawrence, History of Criminalization, and Fundamental Rights

Dustin the Legal Guy -- who is apparently one of a handful of other Mormon bloggers -- recently posted an argument about the Supreme Court's Lawrence decision which I find unpersuasive. Dustin writes that the question of whether homosexual sodomy can be classified as a fundamental right can be answered by the following formula:

All homosexual sodomy involves non-procreative activity
All non-procreative activity was subject to being criminalized
All activities that were subject to being criminalized are not fundamental rights
Therefore, all homosexual sodomy is not a fundamental right

Dustin's argument, however, seems to contain at least two assumptions which look incorrect.

1. Is it true that "All non-procreative [sexual] activity was subject to being criminalized"?

As Eugene Volokh has pointed out, sexual activity between a man and a post-menopausal woman is not banned. Similarly, sex between an infertile woman and a man is not banned (or, at the very least, Dustin has not shown evidence that they were).

Critics of homosexuals generally often use scriptural arguments. However, some scriptural stories suggest that sex between a post-menopausal woman and a man was encouraged. (Think Isaac). In short, Dustin's statement that "All non-procreative activity was subject to being criminalized" does not seem to have a basis in fact.

2. Even more problematic is Dustin's argument that "All activities that were subject to being criminalized are not fundamental rights." Excuse me? Probably every single fundamental right has been subject to being criminalized.

United States history is replete with instances of legislative criminalization of activity that courts then found to be fundamental rights. Just read Zenger, or look at the clear and present danger cases -- they involved the criminalizing of kinds of speech. Important constitutional cases like Loving v. Virginia, Moore, Roe (whatever one thinks of it politically) would not exist if fundamental rights had not been subject to being criminalized. In fact, that tends to be how one finds out that something is a fundamental right -- some legislature somewhere criminalizes it, and the Court strikes that down.

It is certainly still possible to argue that Lawrence's reasoning is incorrect in attributing to private sexual activity the status of a fundamental right. But this argument cannot be based simply on a history of criminalization.

2003-07-02T10:50:00.000-07:00

Should Critics of Clarence Thomas also Criticize Thurgood Marshall?

David Bernstein suggests that criticism of Clarence Thomas as a "Scalia stooge" is unfounded and supports his argument by noting that Thurgood Marshall voted with Brennan a very high percent of the time. (Link via Volokh). He writes:

I ran into this argument a few years ago on an African American studies listserv, and pointed out that Thomas votes with Scalia far less often than Thurgood Marshall voted with William Brennan, but no one accused Marshall of being Brennan's lap dog.

Well, let me state the obvious: Of course no one accused Thurgood Marshall -- one of the greatest oral advocates and litigators of his time -- of being anyone's "lap dog." Such an accusation would have immediately been labeled as ludicrous.

There is a vast difference between the pre-Court accomplishments -- and the corollary credibility base -- of Marshall and Thomas. Marshall came to the Supreme Court after winning the most important constitutional case of the century; Thomas came to the Court after running the EEOC.

This is not to say that everyone who comes to the Supreme Court must be a legendary oral advocate. Nor is it to say that Justices who come to the court with stellar credentials always turn into good Justices. A reasonable argument can be made that Marshall was a disappointment as a Justice; a similar argument can be made that Cardozo, who came to the court with stellar credentials, was also a disappointment. But in both cases, their pre-Court credentials served to inoculate them from certain kinds of attacks -- accusations that they were gullible, for example, or unintelligent.

Similarly, no one accuses Posner of being an Easterbrook stooge, or vice versa -- no matter how much those two agree, they have established sufficient credentials that such an accusation could not be taken seriously. If Ted Olson were appointed to the Court, or Laurence Tribe, or Ronald Dworkin, it would be similarly impossible to accuse them of being anyone's stooge. However, Court appointees with less stellar pre-Court credentials -- including Clarence Thomas -- are subject to types of criticism that their more highly-touted bretheren (based on pre-Court accomplishments) are immune to.

To sum up: Perhaps, as Thomas's critics suggest, he has had an undistinguished Court career, and perhaps, as Bernstein suggests, Marshall's career was equally undistinguished; however, Marshall's pre-Court credentials inoculate him from being accused of being anyone's stooge, while Thomas lacks similar inoculation.

2003-07-01T17:08:00.000-07:00

Wow . . .

I took the short quiz over at Select Smart to determine which presidential candidate most closely fit my political views. Boy, was I surprised by the results. I'm not sure if the machine is broken over there, or if I'm just in denial, but the results are in and I must confess a certain amount of bemusement:

1. Sharpton, Reverend Al - Democrat (100%)
2. Clinton, Senator Hillary Rodham, NY - Democrat (91%)
3. Dean, Gov. Howard, VT - Democrat (91%)
4. Libertarian Candidate (90%)
5. Kerry, Senator John, MA - Democrat (89%)
6. Kucinich, Cong. Dennis, OH - Democrat (86%)
7. Edwards, Senator John, NC - Democrat (86%)
8. Bayh, Senator Evan, IN - Democrat (86%)
9. Leahy, Patrick Senator, Vermont - Democrat (86%)
10. Green Party Candidate (85%)
11. Lieberman Senator Joe CT - Democrat (85%)
12. Daschle, Senate Minority Leader Tom, SD - Democrat (83%)
13. Feingold, Senator Russ, WI - Democrat (77%)
14. Biden, Senator Joe, DE - Democrat (76%)
15. Socialist Candidate (75%)
16. Gephardt, Cong. Dick, MO - Democrat (75%)
17. Jackson, Cong. Jesse Jr., IL - Democrat (74%)
18. Graham, Senator Bob, FL - Democrat (73%)
19. Dodd, Senator Chris, CT - Democrat (69%)
20. Moseley-Braun, Former Senator Carol IL - Democrat (66%)
21. Feinstein, Senator Dianne, CA - Democrat (66%)
22. Bradley, Former Senator Bill NJ - Democrat (59%)
23. Kaptur, Cong. Marcy, OH - Democrat (51%)
24. Buchanan, Patrick J. – Reform/Republican (44%)
25. Gore, Former Vice-President Al - Democrat (40%)
26. Bush, George W. - US President (35%)
27. McCain, Senator John, AZ- Republican (7%) <- The person who I voted for and donated to last election
28. Phillips, Howard - Constitution (6%)
29. Hagelin, John - Natural Law (4%)
30. Vilsack, Governor. Tom IA - Democrat (1%)
31. Clark, Retired Army General Wesley K "Wes" Arkansas - Democrat (-1%)
32. Hart, Former Senator Gary, CO - Democrat (-2%)
33. LaRouche, Lyndon H. Jr. - Democrat (-12%)

Heh. I find this amusing because (1) I could never see myself voting for Sharpton, ever. His history of anti-Semitic and other inflammatory, not-well-thought-out comments really makes that issue a no-brainer. (2) I consider myself a McCain supporter. In fact, I donated to his campaign!

EDIT: I tried it again, I couldn't remember all of my answers, but I put mostly the same, made a few changes, and also selected the option to only show declared candidates. The new result is:

1. Edwards, Senator John, NC - Democrat (91%)
2. Kerry, Senator John, MA - Democrat (90%)
3. Lieberman Senator Joe CT - Democrat (87%)
4. Gephardt, Cong. Dick, MO - Democrat (84%)
5. Sharpton, Reverend Al - Democrat (80%)

Ahh. The world makes sense again.

Well, it's a fun quiz, anyway, though I don't think I'll let it determine my vote.

2003-06-30T10:19:00.000-07:00

Lotts more statistics

John "the dog ate my homework" Lott is now arguing that Iraqi civilians should have more access to AK-47s. (Link via Volokh). To back up his argument, he offers anecdotes and a recap of statistics. Given Lott's widely-publicized apparent invention of phony statistics -- eerily similar to Michael Bellesilles's apparent invention of phony of statistics on the other side of the argument -- I am deeply skeptical.

The remorseless statistics abuse on both sides of the gun control debate has inevitably brought me to the conclusion -- call it Kaimi's First Law, or perhaps the Bellesilles-Lott Theorem -- that no gun statistic can be trusted.

2003-06-20T13:51:00.000-07:00

Is "D" a Johnny-Come-Lately, or is he actually Stuart Buck?

"D" has a post over at Sub Judice, titled "What Kind of People Loot Dirt?", commenting on the recent Washington Post article on the subject. Clever, huh? But wait! -- Stuart Buck also has a post titled "What Kind of People Loot Dirt?", commenting on the recent Washington Post article. (He apparently has working blogger archives as well). What gives?

As I see it, there are two possibilities.

1. D is a Johnny-come-lately. As blogger's software makes clear, D posted his comment exactly three minutes after Buck. 3 minutes is like an eternity on the internet. The same title, the same link -- it can only be clear evidence of internet plaigarism. D probably attended the University of New Orleans, where he took classes from Stephen Ambrose.

2. D, the pseudonymous blogger, is actually Stuart Buck in disguise. The liberal nature of his posts allows him to set himself up as a foil to his flagship blog. This option is better than (1) because it involves a conspiracy, and conspiracies are exciting to unearth. Aha, D -- or should I say Stuart? -- you are unmasked!

2003-06-09T14:14:00.000-07:00

Hobbesian Choices? Why Not?

Jacob Levy takes umbrage at the use of the term "Hobbesian choice" in a recent news article.

I agree that if the mistake came out of carelessness by either the speaker or the reporter, it can rightly be criticized. But is "Hobbesian choice" a per se error? I have actually used the term myself, and done so intentionally. I thought it was a clever pun for situations where the subject has more than one choice, but they all reflect a Hobbesian viewpoint. (To grossly oversimplify, the Hobbesian viewpoint is that people either struggle in a barbaric world of anarchy, or they submit to tyrants who provide order. I only have a minute to blog, and can't find a quick Hobbes summary on Google, but one imperfect resource is in these "Reviews" at Amazon).

The quote in question can certainly be read as saying that budget cuts will result in chaos, like the pre-government world of Hobbes:

''The budget meetings are extremely depressing,'' Michigan's new Democratic governor, Jennifer Granholm, told me during a recent visit to Washington. ''We've got to contemplate cutting burial services for indigents, or cutting after-school programs for at-risk kids, or cutting programs even for talented and gifted children. These are Hobbesian choices.''

So, while I commend Jacob Levy for his vigilant policing of language usage, I think he has not proven guilt beyond reasonable doubt (or even, I would say, a preponderance of the evidence) in this instance.

2003-06-08T21:01:00.000-07:00

We have had enough of action, and of motion we

As another midnight approaches at work, and I grind through a never-ending mountain of documents, I recall the words of Tennyson's poem "The Lotos Eaters." Never has poetry so accurately described my feelings:

There is no joy but calm!
Why should we only toil
. . .
Death is the end of life; ah, why
Should life all labour be?
Let us alone. Time driveth onward fast,
And in a little while our lips are dumb.
Let us alone. What is it that will last?
All things are taken from us, and become
Portions and parcels of the dreadful Past.
Let us alone. What pleasure can we have
To war with evil? Is there any peace
In ever climbing up the climbing wave?
All things have rest, and ripen toward the grave
In silence; ripen, fall and cease:
Give us long rest or death, dark death, or dreamful ease.
. . .
We have had enough of action, and of motion we,
Roll’d to starboard, roll’d to larboard, when the surge was seething free,
Where the wallowing monster spouted his foam-fountains in the sea.
Let us swear an oath, and keep it with an equal mind,
In the hollow Lotos-land to live and lie reclined
On the hills like Gods together, careless of mankind.
. . .
Surely, surely, slumber is more sweet than toil, the shore
Than labour in the deep mid-ocean, wind and wave and oar;
Oh rest ye, brother mariners, we will not wander more.

----

The entire poem can be read here

And now, I return to my oar.

2003-06-07T14:44:00.000-07:00

In other news

There is a very interesting review essay by my colleague David Hoffman,* titled "How Relevant is Jury Rationality?" which is currently wending its way up through the list of legal papers over at the SSRN. Dave reviews Cass Sunstein's latest book on punitive damages and has some very nice insights of his own to offer. The abstract (and download link) are here.

*Full disclosure: Dave is co-author on an article draft I'm working on at present.

2003-06-07T14:33:00.000-07:00

Making Law Reviews More Accessible to the World?

Not two weeks after mailing off old-fashioned checks in envelopes to the Columbia Law Review and the Harvard Law Review (neither of which accepts credit cards, see here and here, so I actually had to dust off the checkbook), I now learn that both publications are offered through Amazon.com. Well shizzle my nizzle, as the brits would say. Yep, the ivory tower that is law review subscriptions, the last bastion of civilization, has now been conquered by the internet. Web-savvy law scholars can order the Columbia Law Review by clicking here (though at $64.04, it will cost you $15.04 more than the check-envelope method), and Harvard here (at $52.57, it's almost $2.50 less than ordering by check). (No explanation is readily apparent for the price differences).

Amazon's list has a few other top journals, for example Michigan (which is offered at a $10.07 markup). However, many others -- including Yale, Georgetown, Penn, Virginia and Chicago -- are inexplicably not on the list.

2003-06-05T20:14:00.000-07:00

A month without blogging is like a month without sunshine

Come to think of it, my work schedule did give me a month without sunshine, or pretty close to it. Perhaps that's why the blog began gathering cobwebs.

This post won't be long (there is time enough for that later, perhaps). But, I couldn't help but notice that "D", the mysterious Sub Judice scribe, has now "been a lawyer for around 18 months." (Their perma-links aren't working, as usual -- you can go to the site and see this a few posts down). Congratulations, "D", for reaching this milestone. But don't you think that 18 months of service as a battle-hardened lawyer makes your self-description, as being a "recently minted lawyer[]", a little less accurate?

By now, if you were at my firm, you would have a full year-and-a-half of service. You would be a second-year associate, with a whole echelon of first-year associates junior to you -- not to mention the army of paralegals, and, now that it's June, the horde of summer associates. In short, while you would not yet be a senior associate, you would not really be "recently minted" either.

But of course, that's life at the big firm. Perhaps you're at a legal aid firm, small firm, or other place where 18 months is still "recently minted". Perhaps you took time off to clerk, or work at another firm, and so are relatively new at your firm. All of those are possibilities. In any case, I would implore you not to wear the "recently minted" label too long. You don't want to be like the WB, after all, which advertised its "New Tuesday" for four years running.

2003-04-26T12:00:00.000-07:00

Downward Departure and Bulimia

A curious reader wonders whether bulimia could be used as a ground for downward departure. It's an interesting question.

Let me first say that, any ideas expressed here are not legal advice for any particular case. I am not retained in any case; I have no attorney-client relationship in any such case; I might not be admitted to practice in any particular state where any particular person is being sentenced. Any ideas expressed relate to the general, academic question of whether a person with bulimia could seek a downward departure. I do not represent any such person (and this post, of course, is not an agreement to represent any such person).

As for the question, my thoughts on the subject are:

(1) Bulimia is not a prohibited ground. It's not prohibited under the guidelines, and (to my knowledge) is not prohibited under case law. So, an argument could be made for downward departure.

(2) Bulimia is also not an explicitly accepted or encouraged ground.

What this means is that any argument would try to establish that a bulimic's particular case is like an established ground. As I see it, such an argument could include:

(1) Physical, mental and emotional condition can be taken into account if "extraordinary". (This ground can be hard to establish, and may require testimony by doctor, psychiatrist, etc.)

(2) Extreme vulnerability to prison circumstances. While the cases on this ground mostly involve homosexuals, HIV positive people, or former police officers -- people more likely to be abused in prison -- an argument could be made that bulimia creates similar vulnerability.

(3) Bulimia often results from childhood abuse, and some courts have allowed downward departure for cases of childhood abuse.

(4) In addition, as with any case, any other applicable grounds for any particular defendant (not necessarily related to bulimia) should be argued as long as there are facts to support them (for example, aberrant behavior, duress, minimal role, or extreme family circumstances, etc.).

(Case law supporting each of these grounds can be found in the Downward Departure Handbook).

Such are my thoughts on the matter. If any readers agree, disagree, or have anything to add, please let me know.

2003-04-14T17:50:00.000-07:00

What's the Political Affiliation of Bare Skin?

John over at Discriminations recently posted suggesting that a "spring fling" for minority college students, including a "fashion show," was problematic because clothing he characterizes as indecent was worn. His title for the post -- "Diversity is as diversity does" -- suggests that diversity has the pernicious effect of making college students take off their clothing.

One wonders how true that implication is -- it was my impression that college students of all races seem generally willing to take off their clothing for just about any reason.

One also wonders about the condemnatory tone reserved for "liberals" (especially women) who dare to wear revealing clothing or flaunt sexuality, while conservatives (especially women) who engage in the same behavior are hailed as healthy, energetic youth. For example, Instapundit gleefully links to pictures of 17-year-old Aimee Deep in lingerie. Warbloggers go crazy about Asparagirl's much-linked diatribe against Lysistrata as war protest, which ends with her resolving to go have lots of sex.

This makes me wonder: Where are the conservative criticisms of conservative "indecency"? I have seen none. And if there are none, as I suspect, isn't that silence further evidence that the "indecency" is not the problem, but rather the underlying politics of the people shown?

2003-04-09T08:17:00.000-07:00

Children's Prisons

Lileks has written a piece attacking Saddam Hussein for "decid[ing] there would be children's jails" and Instapundit has picked it up.

One shudders to think of likely conditions at an Iraqi children's jail. However, Lileks and Reynolds seem wrong to suggest that Saddam's unique, awful crime was "deciding there would be children's jails." There are children's jails all over the world, including a great many in the United States. We call them "juvenile detention centers" and such, but the nomenclature does not change the fact that they are indeed children's jails. (Running a google search on "children's prison" is illuminating. It pulls up, for example, Telegraph articles on "unsafe and horrendous" children's prisons -- in Britain).

I do not mean to suggest that conditions in the two are similar. Iraqi jails are, by all reports, singularly awful places to be. And that awfulness, across the board is, I believe, the real issue. That general awfulness, applied to imprisoned children, magnifies its evil (and the reported near-randomness of the victims is also part of the general awfulness of prison in Iraq) but the decision to imprison children is not, by itself, a product of a "fascist regime" that Lileks envisions. And if Lileks, Reynolds, and others disagree, and think that the decision to imprison children is itself the crime, then they would do well to turn their gaze homewards.

2003-04-08T10:22:00.000-07:00

Now They've Done It

The good folk over at sub judice refer to the Supreme Court as "the Nine" and I suddenly made the mental connection (perhaps they intended this all along, and I'm just a little slow) : The Supreme Court Justices are the Nine -- the Ringwraiths!

The Ringwraiths (also called "the Nine") were nine great leaders of men, corrupted by rings of power, wearing black robes -- the connections are definitely there. Even worse, the ringwraiths are controlled by Sauron. Is this further evidence of the persistent online rumors that Bush is Sauron? (Nasty, nasty rumorses. We hates them!).

2003-04-03T19:24:00.000-08:00

Is SARS merely bad, or is it also getting worse?

Declan McCullagh sees a trend in SARS diagnoses that is "exponential." However, D over at Sub Judice thinks the trend is merely linear (and has the nifty charts to prove it!). Since Sub Judice blogger archives aren't working at the moment (bad blogger.com! no treat for you!), the post should be visible just by going to the main page there.

2003-04-03T12:55:00.000-08:00

Thoughts on WSJ editorial

I recently looked at the Wall Street Journal Op-Ed claiming that law professors are as a group heavily tilted toward the left. While the authors claims are provocative, I am not wholly convinced by the evidence that they have chosen to present.

A member of a law listserv mentioned the odd decision to use 22 law schools, suggesting that it may have been motivated by a desire to avoid Notre Dame, which has a conservative faculty and probably falls somewhere in the 20-25 range. (This is a concern about sample selection bias).

There were other potential methodological problems which worry me. Phrases like "At Yale, where almost 50% of the faculty donate, almost 95% give predominantly to Democrats" is full of easily manipulated, undefined terms (what exactly does "predominantly to Democrats" mean anyway?). They also used selective citation to data that really, really looks like cherry-picking. Why cite to Yale with "predominantly" language, Michigan with also-undefined "8-to-1" (8 what to 1 what? numbers? amounts?), and Georgetown with dollar amounts (was Georgetown skewed by one large donor?).

In addition, I'm concerned with lack of mention regarding controlling for other factors. The authors say "America splits evenly between Republicans and Democrats" yet their data is from 1994-2000, a time period during which Republicans were fielding many candidates to the right of center (Newt, anyone?), while Democrats had one of the most centrist and popular Democrats in recent memory in the white house.

It is unclear whether the time period used, "1994 to 2000" includes figures relating to the 2000 election (is the 2000 inclusive or exclusive?), which essentially split 50-50. It is certain that they relate to 1996, when Clinton substantially beat Dole. It doesn't say much that the law profs preferred Clinton in 1996 -- so did most everyone else.

I'm also curious about how the numbers might be affected by the geographic locations of top schools. Specifically, I wonder how many top schools are located in states where the Governor and/or Senators are Dems (more, I suspect, than not). Schools like Yale, Harvard, Columbia, NYU, Stanford, UCLA, Cal, Georgetown, etc might be tilted toward Democrats due to the home-court advantage effect. (In the same way, Arizona State University or BYU may tilt Republican). While the Senate is split pretty evenly, many Republicans come from states that don't have top law schools, like Mississippi, Georgia, Utah, Arizona, etc.

So, I am unconvinced at the moment, based on the evidence shown, that law faculties are underrepresentative or biased as a group against conservatives. It is possible that the full study will address these concerns. If so, natural places for the discussion would turn to would be (1) whether there are factors within legal study that make the law inherently more liberal than society, (2) if other factors are operating to prevent conservatives from entering law faculty.

One last note -- given the excellent back-and-forth going on about affirmative action between Sub Judice and Discriminations, I am surprised not to see the op-ed being discussed there. Come on guys, get with the program!

2003-03-27T11:38:00.000-08:00

Significance of Iraqi Human Rights Violations

By all reports, Iraq has not been the best of places to live for the past decade. The government, and especially Saddam Hussein and his sons, has participated in widespread murder, torture, rape, and violence. Iraq's ugly recent history of human rights abuse has been discussed often in the press. People seem conflicted as to what weight to give this.

There are two simple positions which seem to be repeated quite a bit, a simple pro-war position and a simple somewhat-anti-war position. The simple pro-war position, often employed by conservative hawks, goes along these lines: "Saddam Hussein is a grave human rights abuser. Therefore, our war is justified as a war of liberation." The simple somewhat-anti-war position, often employed by doves, is: "But, the United States doesn't invade other human rights abusing countries. So war is not justified on that ground." (I call it a somewhat-anti-war position because it does not rule out war on other grounds).

Neither position seems entirely correct to me.

The simple pro-war position is based on one certain truth, that Iraq has been a terrible place to live. However, it has not been the worst place to live in the world -- it may not even be in the top ten. For example, if offered a choice of moving to North Korea or Iraq (prior to war), you choose Iraq, hands down. The definitely-worse-to-live-in-than-Iraq group has to include North Korea, Liberia, Democratic Rep. of Congo, Sierra Leone, Rwanda, and (probably) Burma. This group of countries is followed by another group that could reasonably be considered worse than Iraq (but not hands-down): Somalia, Uganda, Angola, Togo, Malaysia, Sudan, Eritrea, and maybe China, Zimbabwe, Lesotho, Swaziland, and Kashmir (to the extent that can be considered a country). I'm certain I'm missing a few offenders, too -- I put this list together on the fly in the past 2 minutes.

If Iraq's human rights abuses justify war there, then war is also justified in North Korea, DRC, Liberia, etc. Since we aren't at war with those countries, the simple pro-war position seems refuted. But are Iraqi human rights abuses irrelevant, or even (as cynical doves might suggest) a smokescreen to distract the public? The reality seems a little more complicated.

The stated reason for the war is that Saddam Hussein has weapons of mass destruction. Yet there are a number of countries that have weapons of mass destruction which we aren't at war with. We haven't invaded India, for example. In fact, there are a number of countries which could probably acquire weapons of mass destruction without risking invasion. If Spain or Canada or Lichenstein acquired nukes, we wouldn't be too happy about it, but we probably wouldn't invade -- the reason being that we trust those regimes, like we trust India, Pakistan, Israel, Britain, etc, not to use their weapons in a irrational manner.

This is where the evidence of Saddam Hussein's human rights abuses enters the picture. Bush feels invasion is required because (1) Saddam may have WMD, and (2) we don't trust him to act rationally with them. And a major reason we don't trust him to act rationally is his history of abusing his own people. Sure we haven't invaded either Liberia (human rights abuser) or India (WMD armed). But if Bush thought there was any chance that Charles Taylor (Liberia's human-rights-abusing, irrational dictator) had WMD, we would probably invade there too.

2003-03-27T11:32:00.000-08:00

And Kaimi Returns!

I've been incredibly busy over the past week or two, with work and church busy, plus I've been getting my article draft sent out to law reviews (crosses fingers). Now that the article-sending is (mostly) behind me, it's time to blog a little more.

2003-03-06T13:19:00.000-08:00

Blogging: A Family Activity

Or something like that. This post is to say hello to my father, who just started his own blog, also dealing with politics, and with a slightly different feel than mine. His blog is called The Thunk Tank and promises to have discussion of things he has already thought about. I hope he has as much fun blogging as I have.

2003-03-06T13:12:00.000-08:00

Comments from Readers

A few comments have come in in the past week. Actually it's been almost a week (slightly over a week for one), and I was meaning to reply to them earlier. Problem is, they're on my blog-only e-mail (created to avoid spammers) and I only check that e-mail once or twice weekly. If I check it when I have no free time, I make a quick mental note to reply to them or post about them, and that note sometimes gets put in a mental drawer and not seen again for a while. Ooops. Hopefully I will do better in the future -- it's a pain running 3 e-mail addresses (home; work; blog address).

First comment was a question, why "Seeking for Righteousness" when "Seeking Righteousness" would work just as well? Hmm, I never thought about that. I've heard my name translated as "seeking for righteousness" or "seeking after righteousness." I think the preposition gives it a nice ring. I actually prefer "seeking after righteousness," and I'm not sure why I didn't use that one when I named the blog (I just didn't think about it, for some reason). Now that I've had a few posts linked by uberbloggers, I feel that I've established enough brand identity here that I can't easily make changes (like Bell Atlantic to Verizon). Ah well, such is life.

Second comment was a further critique of the New York Times. A reader suggests that Sunday's article on the Sabbath is eerily similar to an article in USA weekend four years ago. He writes:

Compare this article ("Bring Back the Sabbath," NYT Mag, 3/2/03):
http://www.nytimes.com/2003/03/02/magazine/02SABBATH.html

with this article ("Whatever Happened to Sunday?" USA Weekend, 4/4/99)
http://www.usaweekend.com/99_issues/990404/990404sabbath.html

It's an interesting argument. I'm not sure I entirely agree; I found the NYT article to be deeper and better written, if a little quirky. To the extent that the NYT article was claiming a newfound discovery, the discovery was personal, so I'm not sure if pre-emption applies.

As for it appearing in a (rival?) Sunday magazine supplement, that does make the Times article look a little less creative. But I'm not convinced on this issue for a specific reason -- if there is any one topic which can appear in Sunday supplements without being Ambrose-esque, it is the Sabbath, and because of that immunity, I don't feel that the NYT article is problematic. The reader doesn't have a bad argument, just one I personally find unconvincing (and he was quite observant to notice the similarities).

That's it for reader mail at the moment, and I will try to answer e-mails more expeditiously in the future.

2003-02-27T11:54:00.000-08:00

They're at it Again

Those crazy kids over at the New York Times are, as Mickey Kaus points out, once again pushing harmful substances. Don't they know better than this?

Methinks there may be behind-the-scenes changes going on to the search engine. To wit, on Tuesday when I posted that the Times had discontinued use of all sponsored links, I was reasonably sure they had done so. How was I sure? After looking at searches for "ephedra" and "Master's golf," I ran a search for "airline tickets" -- the best search I could think of to troll for sponsored links -- and got no resulting sponsored links.

But now there are sponsored links everywhere. Searches for nearly every topic except "ephedra" results in those little blue boxes. The most logical conclusion is that the Times implemented a two-stage strategy: First, they pulled all sponsored links until Google could filter out ephedra links. Then, they reinstituted sponsored links, with the new filter in place. Of course, the obvious problem with that strategy is that new items crop up which should be added to the filter (i.e., steroids). There are probably other unpleasant items being hawked on the Times web page as well. I just ran some more searches and didn't get any results for "cigarette," "ammunition," or "Nazi memorabilia" (that one pulled up a few generic memorabilia stores), but I did get sponsored links for Viagra, as well as a sponsored link to gambling.

At this point, it appears the ball is once again in the Times' court, to either (1) impose better filters, (2) do away with sponsored links, or (3) accept the modicum of tarnish that comes from being a direct conduit to on-line vendors of steroids, viagra, and gambling.

Update: I got back to my computer, and I didn't save the image of a search for "airline tickets" with no ads. I did save the Masters image. Compare the search from Tuesday (no sponsored links) with a search performed today (sponsored links).

2003-02-26T06:49:00.000-08:00

A Little More Spring Cleaning

My bio on this blog hasn't been updated for a while, in part because it has been on a page from my web site, rather than a blog post, making it not as easy to update (one consequence of not investing in any decent web-editing software is the need to FTP all changes in).

In an effort to remedy this, I have now edited my very first post on this site (previously containing the word "testing"), and turned it into my bio. (Presumably this will show up soon; blogger's archives have been quirky today, again). What this means is that the bio can be updated more frequently (horray!).

In other spring cleaning news, I added a few more sites to the blog roll. And, that's all for now.

Update: Hmm, the edit to the early post doesn't seem to be working. Maybe I'll just put a bio here, and update it later.

2003-02-25T13:21:00.000-08:00

Is this really necessary?

Blogger archive error is acting up again. This is yet another dummy post. When I have a free moment, I'm going to have to look into movable type, which has been highly recommended by some other bloggers.

2003-02-25T13:04:00.000-08:00

The Power of Blogging

After 900 visits to this site yesterday (by far a record for me, and over 600 more today so far), mentions by Kaus and Reynolds, and the story being picked up by Kurtz at the rival Washington Post, the tale of New York Times advertising for ephedra has come to its expected close. A search performed today shows that the Times has ended the use of "sponsored links" for ephedra. (In fact, they appear to have ended the use of all sponsored links, period. That seems reasonable, given the potential difficulty of policing search topics). Kudos to the sometimes-criticized Times for taking prompt action to avoid appearing to endorse a harmful product.

2003-02-24T00:56:00.000-08:00

Kaus Thought He Was Joking, But . . .

Mickey Kaus linked this blog's recent ephedra post, and (originally) ended his link with the wisecrack "At least they didn't advertise, you know, something really awful like a trip to The Masters!" It appears that he spoke too soon. I just searching the NYT for "Masters Golf" and ended up getting . . . . (drumroll) . . . . an ad for trips to the Masters!

Advantage: NYT Search Engine!

2003-02-21T16:53:00.000-08:00

Dummy Post so Blogger will show the other post (grr).

2003-02-21T15:30:00.000-08:00

New York Times Web Site Carrying Ephedra Ads

The New York Times has been running a series of commendable articles on the dangers of ephedra use.

So today, when I wanted to look over those articles, I went to the Times web site and typed "ephedra" into their search engine. Boy was I surprised to see this result. (Note that the first of the "Sponsored Links" is an ad to buy Ephedra.)

Suggestion: The Times should put its money where its mouth is and reject these ads for what numerous articles (including those in the Times) have shown is an all-too-dangerous drug.

UPDATE: They pulled the ads, as well as all of their sponsored ads. See above post. (I tried to post about this new development several hours ago, but the Blogger engine has been acting up today, and it didn't show up till just now).

2003-02-17T20:51:00.000-08:00

Spring Cleaning

Yes, the place looks slightly different. I tidied up the blog roll, added more links to places I visit, fixed up the Downward Departure Handbook link (so it goes to the post, rather than straight to the handbook, and I also edited that post to make it more understandable on a single click), and tried (unsuccessfully) to tinker with the Blogger margin settings. Also, I can't get the "comments" link down to a decent size. Oh well -- I'll continue to tinker with it later on, I'm sure.

2003-02-14T20:16:00.000-08:00

Wow - TAPPED makes an incredibly incorrect statement

TAPPED often has interesting insights, but their recent post on the Estrada controversy is quite possibly the most uninformed thing anyone on either side of the debate has said yet (and that's really quite an accomplishment).

TAPPED writes:

"But Tapped would point out that it is also unprecedented for a president to nominate a man who has zero experience as a judge to the second-highest court in the land."

Unprecedented to appoint someone to the DC Circuit with no judging experience? Completely wrong. In fact, it's not even unprecedented for a president to appoint someone directly to the Supreme Court who has no prior experience as a judge. There's one there right now: Chief Justice Rehnquist. There have been others, as well, like Byron White and even Chief Justice John Marshall.

But wait, TAPPED didn't say the Supremes, they said the DC Circuit. Are they right on that count? Here's a little tidbit TAPPED might want to look into -- there are three current Supreme Court justices who came to the Court by way of the DC Circuit (one reason it's sometimes considered "the second highest court in the land"). Their names are Ginsburg, Scalia, and Thomas. And every one of them was appointed to the DC Circuit with absolutely no prior experience as a judge.

See, e.g., handy link to Supreme Court bios

Yep, I think TAPPED has officially taken misinformation to a new level.

2003-01-19T17:58:00.000-08:00

Washington Post Forget Who Nominated Souter?

Today's article contains a passage reading:

One official said an ideal scenario for the administration and its allies would be for Justice John Paul Stevens, 82, to retire. Though appointed by Republican President Gerald R. Ford, in 1975, Stevens is a consistently liberal voice on the court, so the administration could argue that installing Gonzales in the Stevens seat would be a net gain for the right.

If Rehnquist retired, Bush would have the option of elevating a current member to chief justice while installing a new nominee as associate justice. In that case, officials said, he would most likely choose from the court’s other four Republican appointees, O’Connor, Antonin Scalia, Clarence Thomas or Anthony M. Kennedy. (emphasis added)

Let's see, that makes Stevens, Rehnquist, and the "other four Republican appointees." A total of six. And, by default, the other three Democratic appointees.

But wait! The authors apparently do know who nominated Souter. Two paragraphs later, the article reads:

Conservatives have also pounded home the message that they expect no repeat of the elder's nomination of David H. Souter to the court. A little-known "stealth nominee" -- one without a long record or well-known ideology -- when he was named in 1990, Souter has infuriated the right by consistently voting with the court's four-member liberal bloc.

Hmm, maybe the earlier passage should read "he would likely choose from among four of the other Republican appointees." Or perhaps "he would likely choose from the four other justices that Republicans are willing to call 'Republican appointees.'" Any number of other permutations would be alright. But, as it now reads, the article clearly implies a mistake of fact -- which is made even worse given the authors' clear knowledge of the actual fact, displayed two paragraphs later.

2003-01-14T13:09:00.000-08:00

Downward Departure Handbook

The Downward Departure Handbook is a compilation of case law, weighted heavily toward Second Circuit, SDNY, and EDNY cases, dealing with grounds for downward departure in sentencing.

Since the number of unenumerated grounds is really infinite (as the Supreme Court held in Koon, any factor not adequately considered by the Sentencing Commission can be a ground for departure), I found it useful as a clerk to have in one place all the grounds for departure which had been approved by the Court of Appeals (or at least not reversed). I made the handbook available to other clerks, and intend to keep updating it (perhaps annually) and maybe find a law review to publish it in eventually. (It has not been updated for several months -- such is the life of a Cravath associate). The Sentencing Guidelines often result in unjustly harsh sentences, and it is my hope that this handbook can help some defendants avoid unjust sentences.

handbook.htm

Please feel free to e-mail me with any disagreements, comments, additions, subtractions, etc.

2003-01-14T10:45:00.000-08:00

Going into hibernation

Life at Cravath is substantially more busy than life clerking, which has led to a 2-month period of no posts.

It does not, at the moment, look like it's going to get any better.

So, this blog is going into hibernation for the winter. Perhaps it will resurface when I have a little more free time.

2002-11-15T12:40:00.000-08:00

Law.com e-mail change

They aren't offering free e-mail anymore, so my e-mail address for the blog has changed.

2002-11-10T05:35:00.000-08:00

Comments on Sunstein's Op-Ed

Cass Sunstein's New York Times Op-Ed has been intelligently critiqued at both Instapundit and Discriminations. There are some inconsistencies in Sunstein's article, to be sure. His overall theme, however, has more merit then the critics seem to suggest.

For years conservatives railed against the Warren court for its activism. Conservative arguments could often be placed, broadly speaking, in one of two meta-categories: There were a number of commentators whose position was "The court is substantively wrong." There were also a number of commentators who took the more procedural approach of "Activism is bad" -- i.e., that judges should be more deferential to Congress. Judge Easterbrook's "Statutes' Domains" from 1983, an important piece in conservative statutory interpretation theory, is an example of the latter. (That's 50 U.Chi.L.Rev. 533, for any who may be interested). The two strands -- again, broadly speaking -- could be called substantive versus procedural conservatism.

Sunstein's point is that when conservatives become the majority, they are forced to choose between these two arguments. Either their judges invalidate legislation they don't like -- conservative in nature, but still "activist" -- or their judges follow "judicial deference," and in the process allow liberal legislation to stand.

The counter-argument that these judges are "just following the Constitution" (see Instapundit for example) is probably not a sufficient counter to charges of activism. After all, many decisions which conservatives love to call unrestrained activism, such as Roe v. Wade, are Constitutional cases. Douglas, Blackmun, and Brennan, widely characterized as liberal activist judges, were also "just following the Constitution" in their eyes.

The topic has previously been raised throughout law review articles and classes in law school, so Sunstein's article is nothing new to people who follow law, but may be another example of his tendency towards interdisciplinary cross-pollination. Sunstein has been taking ideas on behavior that economists have known for years and injecting them into law review articles; similarly, this may be an attempt to take a topic which has been circulating in law schools and inject it into more general public discussion.

2002-11-01T20:29:00.000-08:00

Posting from Karl's House

Yep, I'm on vacation. No work for me!

2002-10-30T05:15:00.000-08:00

On vacation:

I'm leaving on vacation for a week, so the blog may gather a bit of dust during that time.

2002-10-24T20:28:00.000-07:00

Brendan Maher writes in by e-mail, with a typically thoughtful comment:

My thought regarding the NRA case was this: The issue of "profiling" generally does not necessarily have to be about race, or sex or gun ownership. In the context of police work, "profiling" means (or should mean) the use of one's previous individual and/or collective experience (which, by definition, includes one's objective factual observations combined with one's subjective analysis of those facts) in order to make educated guesses about future events and to allocate scarce resources based on those educated guesses. In other words, "profiling" in general is a useful, common sense tool.
At the extreme, this means that if a police officer sees someone walk into a bank with a pullover stocking cap covering his face in the middle of summer, while a running car with a similarly dressed individual behind the wheel is parked nearby, the officer is unquestionably justified in guessing that a bank robbery might be imminent, and would be further justified in checking things out more closely. The officer has clearly "profiled" the suspect, but no one would fault his use of that profile in taking his next actions. By contrast, a police officer who sees a black man driving a newer model year car in a mostly white, suburban neighborhood is not, absent any additional facts, justified in pulling that car over solely because of the driver's race. If memory serves, the first uproar about "racial profiling" occurred because New Jersey police were doing just that -- stopping black drivers on the turnpike just because they were black. I think we can all agree that profiling based solely on race is, in the run of cases, unjustified and unjust.

The more difficult cases fall between these extremes. What role should time of day, location of activity, appearance (other than skin color) of suspect and other such factors play in determining whether purely "racial profiling" (unjustified) or simple "profiling" (a valid police technique) is taking place? Can a police department make a rational and justified decision to allocate its resources to "high crime" neighborhoods even if those neighborhoods are predominantly black (e.g. South Central L.A.)? Can an individual officer make a rational and justified decision to pay more attention to vehicles with "rock shocks", flashy paint jobs, UV underlighting, curb feelers and blaring, bass heavy radio systems even if that decision results in the stopping, detaining and (perhaps) arrest of more young Hispanic men than middle-aged Asian women? Can an officer choose to pay particular attention to a group of young black men hanging out on a corner in a "rough" neighborhood wearing clothing and/or specific colors he knows to be gang related, when a group of similarly aged white kids hanging out in the local mall does not attract his attention at all? In all of these situations, the race of the person subject to police scrutiny is undoubtedly noted and considered, but I don't necessarily think that "racial profiling" is occurring as long as there are other factors present which the police, based on their past experience, are also considering. And, for the record, I do not think that "disparate impact" should be considered in this calculus at all.

Of course, this brings us back to our original (and more difficult) issue regarding profiling in the context of avoiding further terror attacks. In the case of the young Arab-looking man removed from the plane, there do not appear to be any other factors than the man's race (or national origin) involved, other than the fact that he was getting on a plane and planes were used on 9/11. If that is true, I think that his removal was probably a true case of "racial" profiling (albeit not by any government entity) and was probably unjustified. (As an aside, I also think that people are way too quick to sue about such things -- as long as the airline eventually gets him where he's going and throws in a free round trip ticket, I say he's been "made whole.") On the other hand, given what we know about the 9/11 hijackers and their supporters, I do not have any problem with state or federal law enforcement agencies paying particularly close attention to Muslim organizations that are known to have connections to terrorist states or that are known to have "extremists" within their ranks. To me, that's not profiling, it's just good police work and sensible allocation of resources.

My thought at the moment is that we certainly agree on a lot -- for example, that pulling over blacks based on skin color alone ("driving while black") is wrong.

As for profiling to fight terrorism, I'm not sure that it would be effective. In commonly committed crimes, profiling can have a statistical basis as a law-enforcement tool (it's objectionable on other grounds, but not for ineffectiveness). Unlike those cases, in terrorism, we simply don't have the kinds of statistics necessary for accurate profiling in terrorism, because (thankfully) the sample size seems too small for useful extrapolation.

2002-10-23T18:45:00.000-07:00

Dummy post do the next one will show up (gotta love blogger).

2002-10-23T18:34:00.000-07:00

Is "gun profiling" different than racial profiling?

A comment from a reader wonders if the recent case where police searched a car based on an NRA bumper sticker raises the same profiling problems as racial profiling, which was discussed a few days ago here.

I don't think that "gun profiling" (for lack of a better term) raises all of the same issues as racial profiling. The reason would be that gun owners have not as a group been subjected to the same kinds of longstanding abuses by government as racial minorities, the very abuses which, in my mind, make racial profiling particularly suspect.

If gun owners were enslaved for a century, then subject to Jim Crow, lynching, and other abuses of the legal system for a century, and then the police wanted to innocently stop cars with NRA stickers, I would be suspicious. But that hasn't been the case (and for many gun owners, one reason to own guns is precisely to keep the government from such acts).

That is not to say that "bumper sticker profiling" doesn't raise a host of other issues. There are search-and-seizure issues, potential first-amendment issues, and (at least insofar as guns are concerned) potential second amendment issues. But the problems are not the same as those raised by racial profiling.

Categorization by race, gender, national origin, or other immutable characteristic is fundamentally different than categorization according to chosen decisions. We may wish to restrict certain chosen decisions (though the decisions restricted should be subject to other constitutional limitations). Meanwhile, a restriction or categorization based on an immutable characteristic should be used only where absolutely necessary. And, I have suggested below, in the case of race, where the state has been an active participant in creating race-based harm, profiling is almost certainly unacceptable.

2002-10-21T17:31:00.000-07:00

Richard Epstein and Title VII

There has been some commentary on the web (such as here and here) about Richard Epstein's visit to NYU, which I unfortunately wasn't able to attend. It was probably fun. I've listened to Epstein speak before and he's very intelligent.

One attendee writes of Epstein's presentation:

"Epstein’s general point was that anti-discrimination laws and policies are always “ten steps behind” what the private sector is actually doing and that private responses to discrimination are usually far more effective than government action. "

I posted a reply on that blogger's site, but also wanted to address the issue here in slightly more detail. If this summation of Epstein is accurate, it is interesting because it echoes the economics-of-discrimination ideas of Gary Becker (The Economics of Discrimination), which are an important starting point in an economic discussion of anti-discrimination laws. However, legal debate on the issue has suggested that Becker's model might not be complete. (See especially the back-and-forth between Judge Posner and John Donahue on it from about 10 years ago, played out across two or three law reviews). Epstein himself has raised strong critiques of Becker. For example, he has argued that discrimination is often efficient, and will not be driven out by the market. (This is one of the points of his book Forbidden Grounds, it is explored at pages 66-78 especially).

Epstein uses the idea of efficient discrimination to suggest that anti-discrimination laws are misguided. However, I think that the possibility of efficient discrimination actually undercuts Epstein's libertarian views. If some discrimination is efficient and will not be priced out of the market, then Title VII opponents cannot simply tell affirmative action supporters Beckerian responses that discrimination will die a natural death ("don't worry, it will take care of itself"). Instead, if (1) discrimination is wrong (as many hold that it is), and (2) Epstein and others are right that not all discrimination will be priced out of the market, then the most coherent position seems to be support for antidiscrimination laws in order to force efficient discriminators to stop discriminating.

2002-10-18T05:42:00.000-07:00

Comment Engine Added

Now we can all disagree in the same place!

2002-10-17T15:32:00.000-07:00

Allowability of Racial Categorizations

John Rosenberg raises some very interesting issues on his blog, noting the possible incongruity in the standard liberal and conservative positions insofar as they relate to affirmative action and racial profiling. John writes:

I've been struck by the inconsistency of liberals who oppose racial profiling when done by police but applaud it when done by admissions officers or employers.

John displays commendable evenhandedness, expressing similar discomfort with conservatives who advocate the polar opposite (support for racial profiling / opposition to affirmative action). In the comments section of that blog, Brendan Maher and I have argued opposite sides of the issue; he has suggested that the conservative position is coherent, I that the liberal position is.

We seem to agree (he can correct me if I'm wrong) on the basic premise: Categorizing by race is generally proscribed, but may be allowed where it is the only way to fix an important problem.

Prior Discussion

Maher suggests:

"[P]referentialists" have had some success in arguing that "diversity" is a sufficiently compelling interest to allow race-based discrimination in admissions, [but] their arguments are hollow, easily refuted and not supported by any real evidence. . . . there is no objectively quantifiable evidence that "diversity" is a compelling government interest and that discriminating AGAINST more qualified white or Asian applicants is the least restrictive means of serving that interest. In other words, race based affirmative action fails both prongs of the test.

In stark contrast, racial profiling in law enforcement, when backed by actual evidentiary "profiles" of a certain type of criminal or crime, will almost always meet the "strict scrutiny" test. . . . First, it is unlikely that . . . preventing another terrorist incident like 9/11 is not a "compelling government interest" (indeed, it can be plausibly argued that protecting the country is the MOST
compelling government interest). Thus, the first prong of the "strict scrutiny" test is easily met. The question then becomes, "Is singling out young, male Arab-looking individuals the 'least restrictive' method of serving the 'compelling government interest' of preventing additional terrorist attacks?" Absent any additional factual information, the a principled "color blind" conservative would answer "no."

My reply was:

Affirmative action as a general proposition passes because it is the only way to remedy harm done along racial lines, caused by centuries of state-sponsored discrimination. (Not all affirmative action programs might be adequately designed for this purpose, but ones which are could pass).

Racial profiling, on the other hand, does not pass. It is use of racial categories in law enforcement, and other means could be used for the same result (better law enforcement). Adding more police, better technology, better techniques, and so on could provide the added protection from crime that racial profiling might claim to add. Since an alternative route exists, racial profiling is verboten.

Finally, the counter-reply was:

"Remedying past discrimination" is, in theory, a valid reason for using race-based affirmative action. In my opinion, however, not a single eighteen year old student who is applying for college today (i.e. who was born in, say, 1984-85) can advance that theory with a straight face. It has been illegal to discriminate on the basis of race in admissions (and in just about everything else) since the late 1960s. There is not a student alive who can claim that his or her admission to a particular university is necessary to remedy past discrimination. Nor is there a college or university that can plausibly claim that it NEEDS to discriminate NOW, to make up for its pre-1964 discrimination. . . .

With respect to racial profiling, the test is not whether there are ANY less restrictive means of achieving the compelling government interest, but whether the means chosen, set against the particular factual background at issue, are the LEAST RESTRICTIVE for achieving the government's goal.

While it is certainly true that, in a perfect world, we would have all the police and federal agents needed to effectively combat terrorism, and all of those police and agents would have the best training, weapons and other tools available, that is simply not the case. Police and federal agents are stretched thin, and there is not enough time, money or equipment to search every passenger on a plane or every car that crosses our borders.

To which my new reply is:

First, I disagree that passage of the Civil Rights Act in 1964 and four decades of uneven enforcement since then have remedied whatever problems were caused by a century of legal slavery and a century of state-sponsored discrimination. This is not to suggest that the situation is not better than it was before, but the harm has not been cured.

Racial groups which were subject to a long period of discrimination have not been able to develop the foundation for economic success that other groups have in place, and are less able to use networks which facilitate getting an education or a job. For example, many universities have preferences in place for alumni relatives. "Check here if any of your relatives attended Columbia University." How many minorities benefit from these programs? A smaller proportion than the general populace, because systemic discrimination was in place for so many years. This is not to say that minorities will never benefit from such programs. But for that to happen, this minority candidate must have had a parent or uncle or such who made it into the university despite the lack of alumni connection, and who then gave him that connection. This point is not that all non-minority candidates benefit from alumni preferences; they don't (lots of people, including me, made it into Columbia with no alumni connection). But some non-minority candidates have this advantage, and no minority candidates do at first. The imbalance will correct over years and generations. In the interim, affirmative action can speed up the balancing out of this effect of prior discrimination.

The same applies to business ownership. A small percentage of non-minority candidates receive business opportunities due to family or other connections. Not all do, to be sure, but the percent is higher than it is for minority candidates. And so forth. That is, there are secondary effects of discrimination which still disadvantage minority groups, and some kinds of affirmative action can be an appropriate remedy.

(As for diversity, I have not examined in detail claims that it is either helpful or overrated. Intuitively, I would think that diversity is a good thing as opposed to neutral or bad. I'm not sure without further research whether I would consider it important enough to justify the high standard for setting up racial categorizations; however, that question is not necessary for me, since I think that affirmative action programs are appropriate as a response to remedy the harm of prior discrimination.)

Second, on racial profiling, I continue to have reservations. My reservations mostly stem from the history of discrimination, and that it was used by law enforcement to perpetuate lynchings and other serious injustices. This would, I suggest, lead to a third prong of the test. The test sometimes used by courts (well, sort of) and adverted to in discussion is:

Categorizing by race is generally proscribed, but may be allowed where it is the only way to fix an important problem

To this, I would add:

Categorizing by race is especially suspect where it involves potential use of the coercive powers of the state to deny personal freedom.

And that may be where we differ. It is arguable that racial profiling may fit the "least restrictive" test sometimes used by courts in examining racial categorizations. But where a racial categorization could lead to removal of personal freedom, a higher standard should be used. One of the great evils of slavery was to remove freedom based on racial categorizations. One of the great evils of post-slavery discrimination was the perversion of the law enforcement system into a tool to continue to remove freedom based on racial categorizations. These considerations suggest to me a higher, almost unachievable standard:

Where a racial categorization involves the government's coercive power to remove personal freedom, it may not be used if there is ANY way the government may otherwise accomplish the result.

And under that standard, racial profiling is not allowed.

Quick Postscript: I've been impressed at the level of civility and reasonableness this discussion has had. Both John and Brendan have been exceptionally civil in a topic which often brings out the worst kind of ad hominem, racist, or other problematic discussion.

2002-10-12T12:25:00.000-07:00

Time crunch

Things are very hectic at work, with a big project taking up pretty much all of my time. I expect it to slow down some by the middle or end of the week, but could be wrong.

In the mean time, there is apparently some disagreement on the net over the relevance of blogging at all. Compare Eve Tushnet's (is she related to the Tushnet clan of legal writing?) article about blogging opening up closed societies with Jonah Goldberg's much less optimistic take on the whole blogosphere.

And the funny thing is, they may both be right.

2002-10-06T21:10:00.000-07:00

More NJ links

Kausfiles has great discussion of the issue, though I'm not sure how to link to his posts, so you have to scroll down. I probably stole some of his ideas in my quick summation of problems of "right to competitive election" below, which was based on several critics.

The Washington Post suggests that, while Republicans nationwide are up in arms on the Torch issue, no one in New Jersey really cares. Sounds likely to be true.

2002-10-06T20:55:00.000-07:00

New Jersey Politics

There's a lot of talk in the blogosphere about the Democratic Party's bid to have Toricelli replaced on the ballot; the change was recently approved by the New Jersey Supreme Court (link via Howard Bashman). Critics include Eugene Volokh, William Safire, and John Rosenberg; a defense has been offered by, inter alia, Josh Marshall.

Arguments of principle made by both parties are for show -- if a Torch-like scandal had happened to Republicans, they would be arguing for inclusion of a new candidate, and Dems would be arguing against it. The Republican and Democratic parties have no permanent position on the issue, and any statement to the contrary is probably false.

The most powerful argument that Republicans have is that Democrats are tinkering with the rules after the neutrally-fixed deadline. This charge is absolutely true. Republicans also get bonus points from vague, sloppy statements from the New York Times (which supported the change) and the court decision itself, seeming to rely on a nebulous "right to a competitive election." Such statements are justly criticized. There is no "right" to a "competitive" election. Such a right would be a nightmare to enforce in courts, and could be bizarrely countermajoritarian -- where a candidate is justly popular, that "right" might suggest gerrymandering until some "competitive" result could be reached.

Yet, fuzzy logic of its decision aside, the New Jersey Supreme Court got the outcome right. Lautenberg should replace the burned-out Torch on the ballot.

A key issue is whether election rules may be changed prior to an election. There are good reasons why one might not want to allow changes. Bush v. Gore highlighted to volatility of making any changes to agreed-upon rules. The newspapers and the NJ Supreme Court, by suggesting a "right to competitive election," are engaging in exactly the kind of after-the-fact tinkering which should always be discouraged.

But in this instance, firm application of the rule is not required. It is an accepted maxim of statutory interpretation that where a statute will give an absurd result, it may be appropriate to construe the statute so as to give a reasonable result. Hart and Sacks have famously written that laws ought to be interpreted as if written by "reasonable persons pursuing reasonable purposes reasonably."

Legislatures establish deadlines in order to force parties to move forward when they might otherwise delay. Deadlines are arbitrary; where deadlines are the law, they should be read as if written by reasonable persons pursuing reasonable purposes reasonably. As helpful as running against a candidate who had announced his withdrawal might be for Republicans, it is not a reasonable outcome. After all, if both candidates had withdrawn, then the law, interpreted strictly, would apparently allow no viable candidate at all to run. Absent a clear statement in the legislative history that this was the intent (I haven't reviewed the history, but assume that if a clear statement existed, the parties would have made it known by now), it does not seem reasonable that the legislature meant to enact a strict bar on post-deadline changes, provided first that the changes could be made in an orderly way (allowing people to get them in time for the election), and second that not allowing an exception would result in an unreasonable outcome (as it would here).

2002-10-03T19:20:00.000-07:00

Idle Chatter about Fakespeare

I hadn't had time till now, but Stuart Buck's comment about the fake Shakespeare that Barbra used was about what I was thinking as I read it.

The Fakespeare which Babs read at the Dem convention is:

"Beware the leader who bangs the drums of war
in order to whip the citizenry into a patriotic fervor,
for patriotism is indeed a double-edged sword.
It both emboldens the blood, just as it narrows the mind.

And when the drums of war have reached a fever pitch and the blood boils with hate and the mind has closed, the leader will have no
need in seizing the rights of the citizenry. Rather, the citizenry,
infused with fear and blinded with patriotism, will offer up all of
their rights unto the leader, and gladly so.

How do I know? For this is what I have done. And I am Caesar."

Buck found the fake unconvincing to begin with; I agree. I'm no Shakespeare expert, but that passage absolutely reeks of modern writing. Let's start with the words. Patriot is French and dates to Shakespearean time; patriotism (also in the cite) is English and does not. As one commentator at Buck's site points out, citizenry is also a post-Shakespeare word. The concepts are modern too : narrow .. mind ; close .. mind? Offering up rights? Very modern concepts here.

The transparency of the fraud reminded me of an article in The New Republic (print only, sorry) about Sappho's poetry (Oct. 7, 2002 at 34), which a scholar decided to patch up. The TNR article notes the failure of that patching up, and offers:

"If there is anything that the recent history of forgery has taught us . . . it is that a generation later any pastiche, however convincing it may be at the time, is indelibly stamped with the idiosyncrasies of its own day rather than those of the original it sets out to imitate." (at 35).

I don't think this particular fake is very convincing even now, but it definitely is stamped with the idiosyncrasies of its own day.

And one other thing -- who is exactly Caesar supposed to be talking to here? "Beware the leader ... me" doesn't sound like anything he would really want to say.

2002-10-02T19:21:00.000-07:00

New Look

Tired of being a lookalike blog, I've implemented a somewhat new look. If anyone has any strong feelings about the new look -- loves it, hates it, can't read it, etc --please let me know. I will probably continue to tinker with it a bit over the next few days.

2002-10-02T17:46:00.000-07:00

Lookalike Blogs

A few visits to Stuart Buck's blog and Eve Tushnet's make me feel like a major copycat in web page template (i.e. they're all exactly the same). Discriminations is also similar.

I'm not sure why the clustering on this template. I mean, Blogspot offers a lot of different templates. When I set this up, I was an occasional visitor to Eve's and had never heard of Stuart's blog, so I don't think I was influenced by others' choices. Maybe this template is just a popular one. It may have something to do with its vaguely-Instapundit-looking-ness (as opposed to, for example, an Andrew Sullivan look). Personally, I thought it was kind of no-frills, get-the-information-out which is why it appealed to me.

2002-10-02T17:38:00.000-07:00

Actually, Stuart Buck pretty much agrees with me

From his post: "I'm not opposed to intelligence, and I certainly wasn't urging that we try to procure judges who are stupid." Sounds like we have less to disagee on than I had thought in my prior post on the topic.

2002-10-01T18:56:00.000-07:00

Fun links

Howard Bashman has a link to a great series of letters between Tribe and Wilentz about Justice Scalia.