The Volokh Conspiracy

I'm please to announce that Samuel Pereira Volokh joined The Volokh Conspiracy (or at least one of its branches) at around 1 am yesterday. I hope to post a photo or two in a couple of weeks.

written by my friend and colleague Victor Fleischer, is back. (Victor, by the way, is also a fellow Kozinski law clerk, though I think it's fair to say that Victor is more a moderate liberal than a conservativish libertarian like me.) He has a particularly interesting post up now on The Google IPO as a Branding Event.

A reader objects to my D.C. statehood post by writing:

While the District of Columbia certainly has a lower population than most states, this is immaterial to the question of whether or not it deserves statehood. After all, Wyoming's population is even lower than that of D.C. Should Wyoming's senators be fired, and their duties delegated to those of, say, Colorado? The idea that states, regardless of population, are guaranteed a certain basic level of representation is controversial, but it's been the law of the land since the Sherman compromise was enacted. All other states are subject to that compromise; it would be quite unfair to treat D.C. differently.

I had thought I'd responded to this in my original post by saying "Ah, some may say, but the two-senators-per-state rule is an unfairness that's built into the Constitution. Indeed it is. But so is the no-senators-for-D.C. rule; both are constitutional rules." But let me elaborate on this further: The reader is trying to rebut my "unfair to give D.C. two senators" argument by appealing to the constitutional judgment that all states have two senators. If that works, though, then one can equally rebut the "unfair to deny D.C. senators" argument by appealing to the constitutional judgment that D.C. lacks senators. Thus, one might argue:

While the District of Columbia certainly has a population, this is immaterial to the question of whether or not it deserves statehood. The idea that D.C., regardless of population, is excluded from representation is controversial, but it's been the law of the land since the Constitution was enacted.

Of course, one could say that the mere fact that something is in the Constitution doesn't make it right: The denial of representation to D.C. residents is no longer necessary, and is unfair; the Constitution should therefore be changed to remedy this unfairness.

But then one should also pay attention to the argument that the two-senators-per-state rule is unfair, even though it too is part of the Constitution. One should try to come up with a remedy that's as fair as possible to big-state residents. One shouldn't remedy unfair underrepresentation for D.C. with unfair overrepresentation, and defend this remedy simply by arguing that the unfair overrepresentation is consistent with the Constitution (since after all the unfair underrepresentation is equally consistent with the Constitution).

And the fairest remedy, I argue, is not to give D.C. residents two Senators, but rather to give them a say in the election of a neighboring state's (e.g., Maryland's) two Senators.

People periodically complain — with some justification, I think — that it's unfair that D.C. isn't represented in Congress. Its residents deserve representation, so D.C. should become a state.

But as a California resident, I'm struck by the unfairness of the remedy the pro-statehood forces propose. D.C. has about 1/60 the population of California — and about 1/10 the population of the average state — but statehood proponents want it to have the same number of Senators as we Californians do. So instead of underrepresentation in the Senate, they want 10-fold overrepresentation in the Senate.

Ah, some may say, but the two-senators-per-state rule is an unfairness that's built into the Constitution. Indeed it is. But so is the no-senators-for-D.C. rule; both are constitutional rules. And just because there is some unfairness in the Constitution already (for instance, that Wyoming has two senators just as California does) doesn't mean that we should exacerbate it further.

It seems to me that the fairest solution is to give D.C. one representative — its population is not far from the population of a Congressional district — and have it share Maryland's two senators. As it happens, Maryland has roughly average population for a state, so that would be pretty fair; D.C. residents, as well as Maryland residents, would have a roughly average voice in the Senate and in the House.

Now naturally there may be political objections to this proposal, which would require a constitutional amendment: Maryland residents may not want D.C. residents diluting Marylanders' votes for Senate. But my argument is that Californians, New Yorkers, Texans, Floridians, and other big-state residents should make sure that there are similar political objections to any D.C. statehood proposal, since they too shouldn't want D.C. residents further diluting the big-state voters' votes for Senate.

Finally, of course I realize that the main political calculation behind D.C. statehood debates has to do with party power: Two Senators from D.C. would be Democrats, and likely very liberal Democrats. Republicans who oppose D.C. statehood, no matter how principled their official objections, may well be motivated, deliberately or subconsciously, by this partisan concern. But of course one can say the same about Democrats who support D.C. statehood. My point is simply that even if one sets aside the partisan considerations — purely for the purposes of argument, I suspect, since I doubt that the partisan considerations could in fact be set aside — and tries to argue in terms of democratic principle, the statehood solution is substituting one unfair situation for another.

All this assumes that the original reasons for denying representation to D.C. and for having two senators per state are no longer sound today. I tentatively think that they indeed are no longer sound; there is something still to be said for them, but on balance their minor remaining value is outweighed by the value of political equality of voters. But for purposes of this post I'll basically assert this rather than trying to demonstrate it, recognizing that this makes this post potentially persuasively only to those who share my assumptions that the denial of representation and the two-senators-per-state rule are both somewhat unfair today.

UPDATE: There are several ways in which my vote-with-the-Marylanders scheme might be accomplished. It's possible that Congress could retrocede all or most of the District to Maryland, just as it retroceded the Virginia part of the District (which originally included a chunk of Virginia) in the 1840s to Virginia. This wouldn't require a constitutional amendment by itself, I think, though I'm not sure whether it would require Maryland's permission; but it would probably require an amendment to repeal the 23rd Amendment, which gave D.C. special voting status in presidential elections. The scheme could also be implemented by a constitutional amendment that preserves D.C. as a separate enclave, subject to federal control, but lets it vote with Maryland; this might, under article V, require not just the usual supermajority for amendment purposes but also Maryland's pmerission. But I mention all this now only because some correspondents have raised the issue; I originally omitted it because my question is about what's the fairest thing to do, not how precisely it ought to be done. I'd still prefer to stick with that original question, and set aside the details for now.

Still more evidence comes in District of Columbia v. Beretta, U.S.A., just decided today by the D.C. Court of Appeals — D.C.'s equivalent of a state supreme court. The court generally rejected various lawsuits against gun manufacturers, but held that victims of gun crimes were entitled to sue gun manufacturers under D.C. Code sec. 7-2551.01 (under a separate statute, the city is also entitled to sue manufacturers and dealers based on such crimes, for reimbursement for various health care costs that it has had to pay):

Any manufacturer, importer, or dealer of an assault weapon or machine gun shall be held strictly liable in tort, without regard to fault or proof of defect, for all direct and consequential damages that arise from bodily injury or death if the bodily injury or death proximately results from the discharge of the assault weapon or machine gun in the District of Columbia.

To quote the court further,

The SLA defines “assault weapon” to include a number of specific products, and invests “machine gun” with the same meaning defined in D.C. Code § 7-2501.01 (10), i.e., “any firearm which shoots, is designed to shoot, or can be readily converted or restored to shoot: (A) Automatically, more than 1 shot by a single function of the trigger; [or] (B) Semiautomatically, more than 12 shots without manual reloading.”

The latter definition of "machine gun" is of course highly misleading. "Machine gun" means a gun that shoots more than one round per trigger pull; that's the nearly universal definition. Semiautomatic guns aren't machine guns.

What's more, this definition labels as a machine gun the overwhelming majority of all semiautomatic guns, since even those semiautomatic guns that come with a smaller magazine can generally be used with a larger magazine -- the only "conversion" required is simply slapping in the bigger magazine. But in any event, regardless of what labels the D.C. law uses, it likely covers about half or more of the guns that are sold throughout the country, including most standard handguns (other than revolvers) and most semiautomatic rifles.

And this law imposes liability for manufacturing and distributing semiautomatic weapons even if the manufacturers and dealers are distributing the guns far outside D.C., in a jurisdiction where the guns are perfectly legal -- and semiautomatic guns are legal nearly everywhere in the U.S. You may have the perfect right to buy such a gun in some state (let's say Tennessee), sellers may have the right to sell it to you there, and Tennessee-based manufacturers may have the right to make it there, both under Tennessee law and under federal law. But because of the actions of the D.C. City Council, the manufacturers may find themselves having to stop selling the guns in Tennessee, for fear of being sued in D.C. Or they may at least increase the gun's price, which means that the D.C. City Council would have effectively imposed a tax on what happens in Tennessee.

Now some people may think that such guns should be banned or taxed because some people use them illegally, or gun manufacturers should be held liable for that. Others (including me) think that this is no more proper than allowing lawsuits against car or alcohol manufacturers because some people drive drunk. (There are about as many alcohol-related and car-related deaths of innocent bystanders as of gun-related bystanders.)

But whatever you think of the bottom line, surely it's wrong for the D.C. City Council, which represents about 0.2% of the U.S. population, to make rules that affect 99.8% of the population. That's precisely the sort of burden on extra-state behavior that Congress has the power to lift (even if the burden is imposed by a quasi-sovereign state, rather than by the D.C. City Council, which is directly within Congress's plenary power), and that Congress indeed should lift.

And I'd also say the same about similar liability rules imposed on other products besides guns. Say that some neo-prohibitionist state indeed decides to make alcohol manufacturers strictly liable for all alcohol-related crimes caused in that state, even if the alcohol is made and sold outside the state. It would be just as wrong for that state to impose its alcohol-prohibitionist rules on out-of-state manufacturers, distributors, and consumers as it is for D.C. to impose its gun-prohibitionist rules.

Finally, one can also argue that the relatively pro-gun-rights states are imposing their policies on other jurisdictions, by allowing the sales of guns that eventually leak out into places that are trying to restrict guns; and likewise in the alcohol hypothetical. But this too is an argument for Congressional decision about what's the best policy — decision by a body that, for all its flaws, at least represents the nation generally. (Perhaps there ought to be some constitutional limits on such Congressional action, if it involves purely in-state transactions; but under modern Commerce Clause jurisprudence, Congress would have the power to control even such in-state economic transactions, precisely because in-state transactions may have serious out-of-state effects.)

Federalism means leaving many matters to states, even when one disagrees with the decisions that particular states may reach. But it also means leaving Congress with the power to resolve those issues that involve genuinely interstate effects. When the D.C. City Council imposes its vision of proper gun control on the remaining 99.8% of the country, even a sincerely federalist Congress should step in.

UPDATE: My original post said that Congress "represents the nation as a whole"; reader Elliot Reed pointed out that Congress of course doesn't represent D.C. Nonetheless, whatever one thinks of the merits of D.C. residents' not being represented, that decision is a deliberate judgment in our Constitution; and even if it's wrong for the representatives of 99.8% (I set aside here the territories) to make rules for 100%, surely having representatives of 0.2% make rules for 100% is not the right remedy.

FURTHER UPDATE: I realize that there are also other arguments for federal action, for instance that such lawsuits jeopardize the right to bear arms, and thus that it's legitimate for Congress to protect this right. My point here is limited to the federalist concern about one U.S. jurisdiction effectively banning, restricting, or taxing conduct that's perfectly legal in other jurisdictions. (I speak here of the propriety of the action, and not just its mere constitutionality under either the Commerce Clause, the Federal District Clause as to D.C., or conceivably the Fourteenth Amendment Enforcement Clause as to states.)

YET FURTHER UPDATE: When first writing this, I foolishly missed the fact that the law covers nearly all semiautomatics. Instead, I wrote only that it applies to those designed to be used with large magazines -- this even though my post last year on this statute got it right. The theoretical point is the same, of course; but it's good to keep in mind just how practically broad the law is, and how it makes potentially actionable probably about half or more of all nationwide gun sales. I've therefore corrected the post accordingly; thanks to a reader for reminding me of this.

A columnist in the Rocky Mountain News writes:

Remember the proclamation of 29 professors at the University of Denver College of Law denouncing the inquiry into Ward Churchill because "the critique of conventional wisdom, or the accepted way of doing (or seeing) things, is essential to fostering the public debate that is necessary to prevent tyranny"?

Remember the ringing declaration of 199 faculty at the University of Colorado at Boulder, also in defense of Churchill, on the importance of an "environment in which ideas may be exchanged even in the face of widespread doubt, incomprehension and hostility"?

Does such an unfettered intellectual environment actually exist on any Colorado campus?

In the journal Academic Questions, former Gov. Richard Lamm recounts an incident that suggests, once again, the answer is emphatically no.

Lamm, who is a tenured professor at DU, tried to publish an article in The Source, a newspaper run by the administration there, "in response to a particularly offensive screed on white racism by one of our affirmative action officials."

Yet despite personal pleas he took up the DU ladder right into the chancellor's office, his essay was repeatedly rejected.

It is now online at educationation.org/blog/?p=51. . . . [I]f Churchill can call for violence and the destruction of America, surely Lamm can argue that the cultural component in personal success is much larger than many of us wish to concede.

Or can he?

The Source is run by the administration, and is basically the voice of the administration — it places a quite direct imprimatur on everything it runs in this publication (as opposed to the outside publications of university faculty members, which have historically not been seen as having the university's imprimatur, and which universities often distance themselves from). The administration is entitled to choose what goes in this publication, just like other editors are entitled to choose what goes into their publications.

The administration may be faulted for being a bit closed-minded, or for not serving its readers well, if it refuses to publish important and interesting commentary. But the administration may also respond that, important and interesting as the commentary may be, it's not commentary to which it wants to give its stamp of approval. The intellectual environment would still remain free if the administration refused to publish Gov. Lamm's piece — Gov. Lamm could publish his articles in student newspapers that choose to carry them, or give speeches on campus about this topic, or publish the articles elsewhere. It's just that the administration's own publication would in this instance not be adding Gov. Lamm's article to that intellectual environment.

Likewise, if the publication is a means of building goodwill among potential donors and others the administration may reasonably want to not publish things that may undermine this goodwill. The Source is not a scholarly journal aimed at advancing knowledge, but seemingly part of the university's public relations effort. (As I read Governor Lamm's preface to his online article, The Source had published what it saw as "a particularly offensive screed on white racism by one of our affirmative action officials," which might mean that the administration is willing to sacrifice public goodwill in the service of its favored ideologies; but if so, then the administration should be faulted for that, not for alleged interference with academic freedom.)

Of course, the administration would have been equally free to refuse to publish Ward Churchill's speech — and the administration is equally forbidden by academic freedom principles from punishing Lamm for publishing his essay elsewhere. But I think that we must distinguish (1) decisions not to publish something in an administration-run publication (and a publication that is a public relations vehicle rather than a scholarly journal) from (2) decisions to punish a faculty member for publishing his work elsewhere. The decisions in category 1 aren't violations of academic freedom.

UPDATE: InstaPundit blogs further on the subject.

A letter in opposition to the "nuclear option" is currently circulating among law professors. Drafted by the Alliance for Justice, the letter appears to have a few hundred signatories from law schools around the country. (See letter draft and signatory list here.) No doubt this letter will be presented to demonstrate an academic "consensus" in support of the constitutionality of the filibuster, the importance of protecting a partisan minority's role in the advise and consent process, and the harm of altering long-standing Senate rules by majority vote.

I find the law professor's letter quite troubling, but not because of its substantive claims. I have been quite critical of the unprecedented filibuster of President Bush's appellate nominees. Yet I remain unconvinced that eliminating the filibuster is either a prudent or principled response.

My misgivings about the letter derive from another concern. The letter makes numerous claims about constitutional history and original intent about which there is substantial debate. Academics and other scholars disagree on the Framers' intent with regard to the judicial confirmation process. By signing on to the letter, law professors signal that they agree with a particular side in this academic debate; they are holding themselves out as academic authorities and saying, in effect, "We, as scholars, believe this is wrong for historical and constitutional reasons." The letter enables opponents of the nuclear option to cite non-political grounds for their opposition. This is what's wrong with the letter.

It is clear to me that many of the signatories (including several I know rather well) have signed onto the letter without any particular knowledge or expertise on these issues. That is, I believe many who have signed the letter did so not because they believe the specific historical and constitutional claims are accurate but because they support the end result: Maintaining the filibuster so as to block President Bush's nominees. In other words, they are asserting their academic expertise and reputational capital in an area about which they have no particular academic expertise. This is not true with all of the letter's signatories, to be sure, but it is true of enough to taint the entire project. There are many fine scholars on the list, but their expertise on gender equality, human rights, or wetlands regulation hardly make them qualified to speak with academic authority on the history and desirability of the filibuster.

The willingness of so many academics to stake their academic reputations on claims about which they have no expertise is troubling. It is but one example of how many in the academy put politics over scholarship. Alas, the costs are not solely born by those who sign such letters. In the end, the stain from acts like these tarnish the reputation of legal academia as a whole.

a year and a half ago, and my former fiancee will soon (cross my fingers) give birth to my second baby.

This brings up an interesting linguistic point: It is true that my lovely wife (the woman to whom I'm referring in the preceding sentence) is in one literal sense my ex-girlfriend, and also my former fiancee -- she used to be my girlfriend and then my fiancee, and now isn't, so I suppose she must be ex- and former. Yet of course one would never say that she's my ex-girlfriend or former fiancee, unless one wants to be amusing (I set aside whether one is likely to succeed in being amusing).

And then the question: What similar phrases can you point to in which a word's (or very short noun phrase's) literal sum-of-the-parts meaning is amusingly different from the meaning that is likely to be understood by normal users of the English language? I'm not just looking for literal inconsistencies (e.g., "ice cream" isn't cream made of ice, but that's not amusing) or for gags based on people's not understanding the components of the phrase (e.g., telling a 10-year-old that he's a homo sapiens, that his actress sister is a thespian, and that his epidermis is showing).

Please post examples in the comments, but please read the rules carefully before doing so. Also, try to make them funny!

Dan Markel (Prawfsblawg) has some interesting (though I think not very severe) criticisms of the David Garrow piece. Here's one point that I thought I'd mention, because it's an important question -- and a difficult one -- regardless of how one comes out on the Justice Blackmun controversy:

[O]ne has to wonder whether clerks of that generation, or this one for that matter, expect their memos to become part of the public record, especially while in the midst of their careers. . . . [Supreme Court clerks] now have to worry that whatever they write for their SCOTUS bosses may be fodder for historians like Garrow during their active career. That might both chill the frank advice they give to the Justices and diminish the texture of the relationship between the clerks and judges. That might not be bad, but at least let's recognize the consequences.

No, not for supposed spoonerisms, which he isn't prone to, and which are named for a different Spooner. Laissez Faire Books awarded him their 2004 Lysander Spooner Award for Advancing the Literature of Liberty, for his Restoring the Lost Constitution. Congratulations to Randy!

Laissez Faire Books' blog also has a post on Randy and that New York Times Magazine article.

A recent post led me to notice that "obsequious" has four consecutive vowels. What not very rare English word has five vowels in a row? It's not a really common word, but it yields hundreds of thousands of hits on google (unlike, say, "miaoued"), and it's not a proper noun.

David raises an interesting question, though I wonder whether "obsequiousness" is quite the right term.

My sense is that clerks have tremendous loyalty to their former Justices. Generally speaking, this loyalty comes from a mixture of (1) genuine affection -- to my knowledge, virtually all the Justices who have sat in the last 15 or so years (and possibly even further back) have been very nice to their clerks -- (2) gratitude, and (3) a social norm among Supreme Court clerks, under which many will interpret criticism as disloyalty, ingratitude, or lack of affection. This is a very broad generalization, so I'm sure it has many exceptions; for instance, I suspect that there are some ex-clerks who don't subscribe to the norm mentioned in item 3, and don't enforce the norm. The generalization also generally does not extend to polite criticism of the Justice's opinion or jurisprudential philosophy. (Note also that the duty of confidentiality as to in-chambers conversations or happenings is a separate matter.)

This loyalty may be good, bad, or a mix of both. Loyalty generally has pluses and minuses, because it usually shows itself when the loyal behavior is different from the behavior that one would otherwise think is most correct -- most candid, most law-abiding, most respectful of the rights and interests of others.

If I fail to report my son's (purely hypothetical!) embezzlement, my loyalty to my son is keeping me from helping enforce the law, helping remedy the wrong, helping protect the victim of the embezzlement, and helping prevent and deter future bad conduct on my son's part. That's why some people would criticize such loyal behavior; and yet it seems to me that there is value to such loyalty, too (though I haven't thought hard about the theoretical framework for analyzing such matters, and in any event wouldn't have the time to elaborate on any such framework here). Likewise, former Supreme Court clerks' loyalty causes some problems -- it keeps discussions about the Justices from being as candid as they could be -- but may also have some merit.

But the bottom line, I think, is that such loyalty doesn't deserve the more or less unalloyed condemnation that the term "obsequiousness" suggests. Obsequiousness tends to refer to a desire to ingratiate oneself, and to win benefits through flattery. And while loyalty might involve a desire not to lose benefits (to the extent that perceived disloyalty may lead to social, personal, or professional punishment), there's more going on there than just this desire -- and some of what's going on ranks in the better portion of human nature rather than the worse.