Saturday, July 1, 2006Shatner's Tribute to George Lucas:
By far the funniest part of this bit is at the very start. (Hat tip Right Coast).
Epic Battle for Press Freedom
In my latest Rocky Mountain News column, I detail the 1905 clash between the Colorado Supreme Court and Democratic Senator Thomas Patterson, the publisher of the Rocky Mountain News. Patterson was convicted of criminal contempt of court after he published a series of scathing editorials and cartoons accusing the court of corruption, after the court invalidated an election in Denver. Kelo Saga Concludes:
Tom Blumer reports that in the end Susette Kelo saved her house, but not her land. Her house will be spared and physically relocated to another parcel of land. As for the other remaining family that refused to move:
Tom sums up his final observations on the settlement:
Nation-Building:
With all the lip-flapping about nation-building going on, here's a thought that is, alas, way too simple (and way too obvious) to ever be taken seriously. Aprroximately two billion people out there care more about the outcome of the World Cup than about pretty much anything else. Or, more precisely: people care more deeply about the fate of their national team than they do about damned near anything else in life. That goes for people in the Ivory Coast and for people in Germany and in Iran and in just about everyplace on earth. A hundred million dollars to build up Iraq's soccer team would do more for nation-building than any other damned thing we could possibly do -- why nobody sees this is totally beyond me. Soccer Coaches:
Soccer is an almost-entirely improvised affair -- another one of the things that makes it the greatest of sports. Anyone who thinks that basketball is the great improvised sport -- "like jazz," as the cliche has it -- has never watched a soccer game. [And I mean that not as some kind of moral judgment, but as a simple empirical claim]. Soccer coaches can't really do very much at all during the game; their job is more-or-less complete when the whistle sounds, their team is either ready or not. And they only get three subs the whole game. At the professional level, coaches (or 'managers,' as they're usually called) sometimes even sit up in the stands during the game -- the better to see what's happening, since there's not a whole lot they can do down on the field anyway. But Argentina's manager, Jose Pekerman, managed to lose the match for them yesterday, pretty much single-handedly, I'd say. It was quite unbelievable. Remember Grady Little, and the Pedro Martinez affair, when everybody in America knew that Pedro had to come out of the game except his manager? Multiply by 100 or so (because this is the World Cup, and so much more is at stake for so many more people). Argentina is up 1-0 and, to my eyes, in complete control of the game. Their 'keeper has been injured and subbed out. With 20 minutes to go, Pekerman takes out Riquelme and Crespo -- Argentina's two best offensive players. Strange . . . but he does have wonderful substitutes on the bench: Pablo Aimar (one of the great creative midfielders in the world, a perfect sub for Riquelme), and Lionel Messi, who has had a sensational tournament and who will soon be, by common consensus, the best player in the world. The problem is, he doesn't put either of them in the game -- he puts in Cambiasso, a defensive midfielder, and Julio Cruz, a 2d rate striker. AND NOW HE'S OUT OF SUBS. Neither Aimar nor Messi can see any action at all in Argentina's most important game of the last 20 years. So when Germany, predictably, scores and they go into extra time, he's got the wrong damned team out there. The rest was completely predictable. I cannot even imagine how angry I'd be if I were Argentine. If you have Argentine friends and want to display your deep sympathy for them, just walk up to them and say "Julio Cruz? Julio Cruz??" Tears should be welling up in your eyes as you do this. This Argentine team deserved better -- they had the talent, and showed in snatches the ability, to play at truly heavenly heights. Though at least the Germans, this time around, are playing some beautiful attacking soccer. If the Germans had won the last time it would have been a travesty -- even die-hard German fans admit that the team's presence in the Final was more the result of having an easy draw (getting the USA and S. Korea in the quarterfinals and semifinals ain't exactly tough going -- and the US outplayed them, to boot) than great soccer playing. But this year's team is, I have to admit, fun to watch. Friday, June 30, 2006Bubble's Over, Sellers in Denial:
Note the absurdity that this buyer thinks she is entitled to a particular price she may have been able to receive at the height of the bubble last year. The fact that neither her agent nor an auction could get her that price leaves her undeterred. Note also that despite the recent small downturn housing prices in the Boston area have still more than doubled in the last six years. Yet the seller somehow thinks that selling her home for more than double what she could have received six years ago would be "underselling" her house. Incomes and overall prices, of course, haven't even come close to doubling. You now, folks who sold Cisco at 60 in mid-2000, having lost 1/4 of their paper (and speculative) profits, turned out to be pretty smart. "Human Rights Atrocities: The Consequences of United Nations Gun Confiscation in East Africa"
That's the subject of a new Issue Backgrounder just published by the Independence Institute, co-authored by Paul Gallant, Joanne Eisen, and me. The monograph details how U.N.-backed gun confiscation programs in Kenya and Uganda have led to murder, torture, and arson, and have turned tens of thousands of pastoral tribespeople into starving refugees. The paper is available in PDF and in HTML. Rooting for Your Team:
I just had another thought about citizen involvement in the GWOT. Many have long contended that organized sports is an emotional substitute for warfare. Consider how involved fans become with their teams. They even buy at great expense "official" clothing and wear it to show their support. Teams cultivate their fans, at least smart ones do.
However, unlike WWII, with this real war, no such "official" involvement exists. And given press coverage of the war, you cannot even stay reliably informed of its progress — unless you follow blogs, of course, but that is a highly niche audience. The only box score you get is how many soldiers and Iraqi civilians have been blown to bits each day. This is like following a team by reading just the daily injury reports (which true fans do read). To push the analogy to the breaking point. Think of the NFL players in the backfield on a defensive stand waiving to their arms to get the fans to scream. Think of the effect of a home team quickly falling behind in a game, so they lose their "home-field advantage." The obvious analogy here is to efforts to support the troops, etc. But here is where the analogy breaks down, but in an illuminating way: In asymmetric warfare, unlike in sports, terrorists are hoping they do not have to defeat the opposing players on the field. They just have to sufficiently demoralize the "fans" until their players get "redeployed." So their actions are aimed at the fans, through the media, as much as at their opponents on the field. Which is all the more reason why cultivating fan or, rather, citizen involvement with a real war is even more important than with war-subsitutes like organized sports. With American wars prior to Korea, this seems to have been better understood by the administration in power. (Civil comments only please) Related Posts (on one page):
Judge vs. Jury Acquittals; Thanks
Thanks to everyone who slogged through the last four days of posts about judicial acquittals. The comments were extremely helpful to my ongoing thinking about the topic; I appreciate that so many took time to offer their insights. Thanks also to Eugene for inviting me. Hope to do it again sometime. Best, Andy Related Posts (on one page): Thursday, June 29, 2006Balkin on Hamdan:
Jack Balkin has a very nice post Hamdan as a Democracy-Forcing Decision, the essence of which is:
What the Court has done is not so much countermajoritarian as democracy forcing. It has limited the President by forcing him to go back to Congress to ask for more authority than he already has, and if Congress gives it to him, then the Court will not stand in his way.(Read the whole thing.) It has long seemed clear to me and many others who are otherwise sympathetic to its policies that the Bush administration made two colossal errors in prosecuting the general war on terror. First: Not seeking quick explicit congressional authorization for such policies as incarceration, military tribunals, etc. The Hamdan case was just one result of this failure. Now, such involvement is much more difficult to accomplish; then it would have been relatively easy. Just not as easy as going it alone, which has proved to be the harder course in the long run. Second: Not involving the American public directly in supporting the war. Tax increases or a military draft were not needed for this. But bond drives, resource collection, and other assistance-to-the-military programs — even better, some form of volunteer genuine militia service — in the wake of 9/11 would have given the public some ownership of the resulting policies. Many called for these sorts of initiatives at the time. They were waiting to be asked to pitch in and help. Instead the administration adopted a Vietnam-type strategy of "We'll handle things; you all go about your business." Which leads to bad reactions when "things" do not go as smoothly as expected. The administration essentially opted for a one-branch war, and the country is now paying the price for that decision. While the failure to involve Congress is merely hard to rectify at this point, the failure adequately to involve the public may now be impossible to remedy. Neither of these observations is original to me. Both points were made by others when the GWOT began, which is why it is not hindsight to point them out on a day that a very large chicken has come home to roost. There are important lessons to be learned here for future wars, both conventional and asymmetric. I am no expert on military strategy, etc., and for this reason do not blog about it. But this falls more into the domain of political or constitutional theory, and tells us something important about the value of the separation of powers. Jack's basic point is that the Court is giving the administration a mulligan. But the do-over will be much more difficult than the initial shot would have been. It did not have to be this way. (Civil comments only please.) Update: Some of the comments have concerned the militia suggestion alluded to above. I raised this possibility on 9/18/2001 (so please forgive its emotional tone) in an essay Saved by the Militia: Arming an army against terrorism. Of course, the merits of this particular form of citizen involvement are somewhat tangential to my principal point about the cost of insufficiently involving the public in a major war like the GWOT. And my original post did not concern the correctness of the Court's decision in Hamdan--especially its decision to reach the merits of the dispute. I was merely commenting on Balkin's insights about its scope and affect. Related Posts (on one page):
Interpreting Common Article 3 and Justice Thomas:
A major aspect of today's Hamdan v. Rumsfeld opinion was the Court's conclusion that Common Article 3 of the Geneva Conventions applies to Al Qaeda. (Common Article 3 applies to "armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.") Some conservative bloggers have expressed outrage about such an interpretation of Common Article 3. See here and here. They seem to be saying that the language of Common Article 3 simply cannot be read to extend to this sort of conflict. Unless I missed something (always a possibility based on a quick read), the only dissenter who says he disagrees with the majority's reading of Common Article 3 as applying to Al Qaeda is Justice Thomas. Scalia focuses on jurisdiction, and Alito talks about how Common Article 3 should apply to the specifics of this case. Scalia and Alito join the portion of Thomas's dissent that talks about whether Common Article 3 applies, so that's where the discussion is. Thomas focuses most of his discussion on arguments that do not directly consider the language of Common Article 3, but rather focus on legal authorities that might constrain the Court from interpreting the language on the merits. He says that Johnson v. Eisenstrager forecloses the majority's application of Common Article 3 to Al Qaeda, and that the Court should defer to the executive's interpretation. He may or may not be right in making these arguments, but they don't address the key point that bloggers are making — namely, that the language of Common Article 3 doesn't apply to Al Qaeda, period. On that key question, Justice Thomas says that both the President's and the majority's positions are plausible and reasonable. Here is the entirety of the discussion (raised in the context of Thomas saying the Court should defer to the President's interpretation, rather than interpret the language on its own):
Bloggers (and others) can continue to say that the language of Common Article 3 simply cannot be read to apply to Al Qaeda. But not a single member of the Supreme Court agrees. That doesn't make the bloggers wrong, of course -- just lonely. Hamdan v. Rumsfeld:
I have some initial reactions to today's opinion in Hamdan v. Rumfeld over at my solo blog, and hope to have more up later today.
National Review on the GMU Law and Economics Center and Judicial Ethics:
The National Review discusses the controversy over the George Mason Law and Economics Center and judicial ethics. Obviously, I'm not a completely unbiased observer. But in truth the LEC conferences for judges are no different from events sponsored by a wide variety of other groups, both liberal and conservative. Judge vs. Jury Acquittals, Some Conclusions
Yesterday there were more very helpful posts and emails in response to the puzzle of why federal judges are much more likely to acquit than juries, and why the gap grew between 1989 and 2002. Today I will offer some tentative conclusions on what the data reveal, and respond to a couple of comments. I mentioned earlier that the conviction gap between judge and jury was large, growing, and could not be explained by those variables I studied. Judges are more acquittal-prone in felony cases, misdemeanors, across all categories of crime, in virtually every judicial district, and with all types of defense lawyers. This led me to consider two other possibilities – that juries are becoming increasing prone to convict regardless of the evidence, and/or that judges are seeing something in the cases that makes them increasingly likely to acquit. [A] As to juries. Maybe the fear of crime and a law-and-order attitude are increasingly seeping into the jury box, making jurors willing to convict on lower and lower degrees of proof. Jurors know from watching Law & Order (and its 17 spin-offs, most of which are pretty good) that prosecutors are really good people who only really go after the guilty, and perhaps this mind set is making jurors more trusting of government evidence, which in turn encourages prosecutors to bring weaker cases to trial. The problem with this theory is I couldn’t find any supporting evidence. If prosecutors really were getting the same conviction rate on weaker evidence, we would expect to see some impact on the dismissal and reversal rates, even though these are admittedly very rough proxies. But the percentage of federal defendants who had their cases dismissed at some point in the process decreased over the period studied, and the reversal rate (for reasons other than faulty sentences) remained constant, with the exception of a small blip in 1996-97. People’s fear of crime – something that might lead to a more pro-prosecution attitude among jurors – was variable, and did not track the conviction rates, which for juries was steady as a rock. And so while I can’t say that juries are *not* prone to “over-convicting,” I don’t see, and have not read, any evidence that they are. [B] Judges. The core problem is to find something about criminal trials that has changed since the late 1980s, something that would affect judges but not juries. With a tip of the hat to the many people who suggested this in their posts, I think the Sentencing Guidelines best fits this description. The Guidelines took away a huge amount of sentencing discretion, which meant that judges were more often faced with cases where they knew that a conviction would result in a harsh – maybe too-harsh – sentence. We don’t have to say that judges were acting “lawlessly” to reach the unremarkable conclusion that judges may hold the government even more tightly to its burden of proof when the stakes are high and unforgiving. Evidence of this is obviously hard to come by, and does not uniformly support the thesis. But consider: (1) the timing is nearly perfect, with the Guidelines really hitting stride just as the judicial conviction rate started to slide; (2) many, many judges were harshly critical of the how the Guidelines made it harder for them to do justice in individual cases; (3) there is social science literature to support the view that the greater the punishment the slower people are to impose it, but who needs social science? This phenomenon occurs in the law all the time. Few people doubt that the exclusionary rule’s application is influenced by the seriousness of the crime and the importance of the evidence. The Supreme Court has recognized that concerns about the death penalty can influence jurors at the guilt stage. Frank Bowman and Michael Heise, in their terrific studies on drug sentences, suggest that harsh sentences influence prosecutorial and judicial decisions that are formally unrelated to punishment. It would hardly be surprising to learn that judges might require more and better proof of guilt when they cannot control the sentence. This would help explain why judges, but not juries, have changed their behavior since the late 1980s. What conclusion to draw from this? The glib answer is that I need to do a follow up study in a few years, after the Booker dust has settled. The more serious answer may be that we think carefully about how we should strike the balance between consistent treatment of defendants and individual justice. [C] Comments. Jim Lindgren and others raised a point that is really elemental. (I’ll paraphrase) If judges are so stinkin’ great for defendants, how come they all pick jury trials? More specifically, since Rule 23 says prosecutors or the court can veto a defense request for a bench trial, could it be that prosecutors know that they will do better in front of juries, and therefore routinely frustrate the defense efforts to choose the better factfinder? Actually that was my first thought when I saw the statistics. But after interviewing lots of lawyers and reading lots of “how-to” trial manuals, I became convinced that prosecutors are not influencing the defense choice of factfinder in any meaningful way. None of the defense lawyers I talked to said that prosecutors frustrated their choices – they put their clients in front of the jury because they want to. All of the prosecutors said they were rarely asked to agree to a bench trial, and when asked, they almost always agreed (unless the judge is “crazy”). The reasons are precisely those identified by Public_Defender in his or her post yesterday: prosecutors don’t want to offend the judge. Also, none of the manuals I saw even hinted that bench trials might be a better choice, except in narrow groups of cases (child porn is the example that many use). This still doesn’t answer the question why defendants flock to jury trials. Are they just unaware of the conviction rates? (maybe) Do institutional inertia and agency problems make it easier for defendants to choose a jury trial? (Probably; if you go against the norm and lose, it’s hard to explain to boss and client what you were thinking.) Is it really the case that factually guilty defendant overwhelmingly choose juries, because even if they don’t have a great chance, it’s better than before a judge? (The selection bias issue discussed earlier – probably true.) As always, I welcome thoughts on these or other issues, aleipold@law.uiuc.edu. The full paper can be accessed at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=843606. Related Posts (on one page): Globalization:
As lots of people have noted in the past decade or so, the increasing globalization of communcation and commerce has at times generated not only strong anti-globalization reactions in some quarters, but has actually stimulated nationalist feelings in many places. World Cup (my favorite subject these days) is an example -- seems to me that people care, if anything, more about their national teams in an age in which national borders, for other purposes, mean less and less. One consequence: there are now opportunities for arbitrage! I use an online betting service that operates out of the UK, and they have made England the favorite (even money) in the game against Portugal (11-4 underdogs). England the favorite?! The English, to any unbiased fan, have looked terrible -- anemic and uninspiring -- while the Portuguese have (notwithstanding that idiotic game against the Netherlands) looked terrific -- but the English fans, I think, are betting, in large numbers, with their hearts. I suspect if I spent more time at it, I could find similarly biased numbers at betting parlors in each of the countries whose teams are in the quarterfinals -- which means there could be some real money to be made here . . . Wednesday, June 28, 2006Bleg for Assistance re Religious Congregation's Right to Overrule Board of Directors Selection of a "Minister":
I need to know, relatively soon (and just as a favor to a relative), whether there is any law in Pennsylvania relating to whether a religious congregation has the right to overrule a Board of Directors' selection of the congregation's religious leader (minister, priest, rabbi, etc.). If you don't know Pennsylvania law, law from other states will do, as I can then use that as a basis for my own research. My hunch is that everyone is bound to whatever rules are in the institution's constitution, if any, but I vaguely recall that in some states decisions about hiring and firing (or maybe just firing?) religious leaders must be approved by the congregation. I can be reached at deliotb at sign aol dot com. Why I am not blogging:
I have not been blogging lately and I do miss it. However, I am committed to finishing a draft of a new casebook on constitutional law by August. This project has required a single-minded focus that does not permit me to blog. My previous post is an exception I could not resist.
The good news is that the casebook is coming along quite nicely. It will be quite different from all others now on the market. There will be no "notes" following the cases (though other sources, such as statements by Presidents and others, will be included). Text by me will be limited to briefly providing purely descriptive context and questions to guide students when reading the materials. The cases will be ordered and edited to allow the Supreme Court (and others) to speak for themselves. If not impeded by tedious comments and notes, what emerges from the cases is a continuous debate about the meaning of the Constitution that traces back to the founding. What makes editing this casebook different than my contracts casebook, is that in constitutional law, we are mainly studying the reasoning of one court that has been in continuous existence since the Founding. If presented chronologically, the great debate that has always existed becomes clear. The key was to order the earlier cases and other sources chronologically (as just one other current casebook does) and then get out of the way of the different voices that reside in the sources themselves. When it is published, which most likely won't be until January 2008, it should make for a fascinating course. At least that is my goal and hope. The Herpes Theory of the Commerce Clause:
I think I agree with DaveK in this comment on Jonathan's post Limits on Federal Power After Raich that Justice Scalia's concurring opinion in Raich offers a way to reconcile it logically with Lopez/Morrison — though this "reconciliation" greatly expands federal power beyond the line apparently drawn in those previous cases. Justice Scalia is one smart judge, and one always needs to pay close attention to what he says, even where one disagrees with him.
The doctrine to which Judge Sentelle seems to be reacting, however, is not the "broader national economic regulatory scheme" doctrine associated with Raich, but a different doctrine that precedes Lopez and Morrison, and which those two cases never address: that Congress may regulate the possession and use of any item that once traveled in interstate commerce. This doctrine has been called by Professor David Engdahl, the "herpes theory" of the Commerce Clause because, as he puts it, "some lingering federal power infects whatever has passed through the federal dominion." Reconciling this doctrine, which was never at issue in Raich because nothing had moved through interstate commerce, with Lopez/Morrison is very hard to do. This was pointed out last week in an opinion by Judge Michael McConnell for the 10th Circuit in U.S. v Patton. The case concerned the possession of body armor that had once moved through interstate commerce. Here is what a part of what he writes: Although the body armor statute does not fit within any of the Lopez categories, it is supported by the pre-Lopez precedent of Scarborough v. United States, 431 U.S. 563, 575 (1977), which held that Congress intended a felon-in-possession statute to prohibit possession of any firearm that had moved in interstate commerce. Scarborough decided only a question of statutory interpretation about a previous version of the felon-in-possession statute, but the decision assumed that Congress could constitutionally regulate the possession of firearms solely because they had previously moved across state lines. . . . Because Mr. Patton’s bulletproof vest moved across state lines at some point in its existence, Congress may regulate it under Scarborough, even though it does not fall within any of the three categories the Court now recognizes for Commerce Clause authority. The prohibition on possessing body armor cannot be distinguished from the prohibitions on possessing firearms that we have upheld. . . . Following our precedent, we conclude that 18 U.S.C. § 931 does not exceed congressional power under the Commerce Clause.In contrast, here is how he treated Raich: We recognize that in Raich, the Court interpreted the contours of the third category by reference to “economics” rather than “commerce,” and included the “consumption of commodities” as well as their production and distribution within that definition. Id. (internal quotation marks omitted). That does not alter our conclusion. First, we are bound by the holding of Lopez, reaffirmed in Raich, that the mere possession of firearms near a school is not a commercial activity for purposes of the third category. Second, possession of firearms or body armor cannot be described as “consumption.” Consumption is the “act of destroying a thing by using it; the use of a thing in a way that thereby exhausts it,” Black’s Law Dictionary 336 (8th ed. 2004), and possessing or wearing body armor neither destroys nor exhausts it. Finally, we note that the Raich opinion as a whole treats congressional authority over the domestic consumption of marijuana as within the third category only because it was connected to a comprehensive national ban on “the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market.” Raich, 125 S. Ct. at 2211. The Controlled Substances Act, the statute at issue in Raich, prohibited possession of marijuana as a “means of regulating commerce in that product.” Id. We do not interpret Raich as holding that Congress may criminalize the mere possession of a commodity for the purpose of consumption, divorced from such a comprehensive regulatory scheme, based on the third category.After Raich, most observers thought that the Commerce Power again had no limits, but the decision in Patton finds the statute outside what is authorized by Raich (though it still upholds the statute under Scarborough). This way of "Limiting Raich" is similar to what I described in a short essay you can find here, but adds another twist: Neither the majority's opinion in Raich, nor Justice Scalia's concurrence, purports to reverse Lopez. Indeed, Justice Scalia tries hard to reconcile them, and Judge McConnell seems to be following his lead. Emphasizing Lopez, however, can have he effect of limiting Raich, IF a court so desires. Will the Supreme Court? We'll see. Given that there is more work to be done reconciling all of the Commerce Clause decisions, there remains an opportunity to find limits on congressional power, IF there is the will to do so. Related Posts (on one page):
Judge vs. Jury Acquittals, More Results
Those who have been kind enough to follow the posts over the last two days have seen some terrific comments and questions about why federal judges are statistically more likely to acquit in criminal cases than juries are. Here are a few more findings, and then a couple of observations on the comments (The full study is available on SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=843606.) I mentioned yesterday that the category of crime the defendant was accused of committing (drug, immigration, violent, public order, etc.) showed some variation, but at the end of the road, judges always acquit more than juries, regardless of the crime type. That statement holds true across the following variables: [1] Judges are more likely to acquit whether the crime is a felony or a misdemeanor. This was significant, since 89% of all serious misdemeanors (i.e., those for which defendant *could* have a jury) are tried to the judge, and 74% of bench trials involved misdemeanors. I do think the high percentage of “bench” misdemeanors explains something, even if it does not explain the change in judicial behavior over time. My guess is that misdemeanor cases get less experienced investigators and prosecutors, less grand jury investigation, and less preparation generally. These shortcomings may not be obvious to a jury, but may be quite obvious to a judge, and thus may explain part of the conviction gap. But the gap remains when we look at felonies only, so this is a partial answer at best. [2] Judges are more likely to acquit than juries regardless of the type of defense counsel – private, panel, public defender, or pro se. I had wondered whether group norms or workload pressures might explain some of the differences, but they really don’t. Defendants represented by different counsel type do roughly the same (badly) before juries, all being convicted at a 82% - 87% rate, while defendants with all types of defense counsel do much better in front of judges. [3] Judges are more likely to acquit in all parts of the country. I wondered if differences in case loads, case mix, local rules, circuit law, and jury pools might lead to regional differences. Wrong again. In *every* circuit, the district court juries convict 80% to 89% of the time (the First Circuit has the lowest rate, the Seventh Circuit the highest), and in every circuit, the district court judges convict a lower percentage of the time, with most in the 50 to 70 percent range. In fact, when I looked at individual districts, it turns out that juries convicted more often in 89 out of the 94 districts in the country. The five districts with slightly higher judicial conviction rates were the D. Colorado, W.D. Arkansas, E.D. Wisconsin, W.D. Wisconsin, and E.D. Missouri. Tomorrow I’ll talk about the conclusions I drew from these numbers. But here I’ll briefly comment on a couple of the comments in the posts and some of the off-list emails. 1. Some folks asked if the political party, background, or age of the judge, or the identity of the appointing president was considered. It was not. The database I used did not provide this information, and it would have been a logistical nightmare to get it. A lame excuse perhaps, but I have doubts about the value of the information even if I could get it. I’m just not clever enough to put many of these variables to work – when a district judge is appointed, how much of the decision is the President and how much is the State’s Senators? Is a Massachusetts Republican the same as a Utah Democrat? I’m dubious that the results would shed enough light on the topic to make it worth the effort, although I know many people who would disagree. 2. A couple of comments raised the issue of sample election bias, a point I note briefly in the paper although not by that name. As I indicated earlier, this may be exactly right, but I don’t know how to tell if it is right. Perhaps it is a pure strength-of-the-evidence calculation by the defense (strong case judge, weak case jury), but putting aside the difficulty of measuring this, I still wonder. This kind of analysis was sometimes but not routinely mentioned by the defense counsel I interviewed. The flavor of their comments was that juries were presumptively better in all types of cases, regardless of the evidence strength. (And BTW, many of the defense counsel very extremely candid with me about their strategies.) But if I do a follow up on this article someday, I agree that more statistical modeling could offer real insights. Thanks to all for your continued interest. Comments welcome, aleipold@law.uiuc.edu. Related Posts (on one page): The Fate of Harry Potter.--
As Ilya Somin mentions below, J.K. Rowling is hinting that Harry Potter (and another main character) may die in the final book in the series. I thought of blogging on this earlier, but decided to wait to see if Dave Kopel was going to do so, since in a long essay last July Kopel predicted both Harry's death and Professor Snape's:
For fans of the series, Kopel's detailed analysis of clues in the prior books is quite interesting. Harry Potter May Die:
Harry Potter author J.K. Rowling is hinting that Harry could die in the forthcoming seventh and final volune in the series. If it does happen, many fans of the series are likely to be sad or outraged. When Arthur Conan Doyle killed off Sherlock Holmes, the outcry from fans was so great that the author eventually brought Holmes back. Perhaps the same thing will happen with Rowling if she does indeed end up killing Harry. It is interesting that avid readers often identify so strongly with fictional characters that they seem more real \than most of the people we known in real life. Certainly, after reading the six previous Harry Potter books, I feel like I know Harry, Ron, and Hermione better than many of my real-world acquaintances. In the article linked above, Rowling also suggests that at least two major characters that readers sympathize with will die in the seventh book. If you want to speculate on who they will be, comment away! Meanwhile, see this website for some short forthcoming articles on "Harry Potter and the Law." And if you are a true law maven/Harry Potter fan, make sure to check out law professor Benjamin Barton's Michigan Law Review article on "Harry Potter and the Half-Crazed Bureaucracy." Ken Jennings Blog:
Ken Jennings, famous for his remarkable string of 74 consecutive victories on Jepoardy, has started a blog. At the end of a detailed post on options for writers who want to publish "unofficial" trivia books about copyrighted entertainment programs, Ken writes:
Wow, that was long and boring. Just what I wanted, to turn this blog into The Volokh Conspiracy during its very first week.Check out more here. Tuesday, June 27, 2006Something's Rotten in the State of Executive Compensation:
I can't say that I follow the debate over executive compensation very closely, but I do follow the fortunes of homebuilder stocks. And I've noticed that CEOs of many of the major homebuilders (e.g. Hovnanian, KB Homes, Toll, Lennar), received many millions of dollars in compensation last year. It's true that their companies were very profitable last year, but that was a result of a general housing boom (read bubble), not because of the CEOs' great leadership. ALL of the housing stocks rose dramatically until July of last year (and all of them are down substantially this year). And though I haven't done a serious statistical analysis, there doesn't seem to be any relationship between whetherr or how much a particular housing stock outperformed its peer group and the level of compensation the CEO received. I have no dog in the various intellectual and political battles over compensation policies. But something is wrong with the system of executive compensation when CEOs are compensated based on profits resulting from macroeconomic trends beyond their control, and not based on their companies' performance relative to their peers. (Something is also wrong when CEOs are ordering their companies to buy back shares on the open market while selling their personal holdings--they don't think the stock is a good value at X price for their personal portfolios, but the company should pay that much? and help prop up the price while the CEOs are selling?--but that's an issue for a future post, perhaps). Limits on Federal Power After Raich:
Today, in United States v. Sullivan, the U.S. Court of Appeals for the D.C. Circuit upheld the conviction of Roger James Sullivan for "knowingly possessing child pornography images that were transported in interstate commerce via the Internet." A unanimous panel rejected Sullivan's claim that Congress lacked the power under the Commerce Clause to prohibit the purely intrastate possession of pornography. Relying upon the Supreme Court's decision in Raich v. Ashcroft, the court had no difficulty dispatching Sullivan's claim. Not all three judges on the panel were comfortable with this result, however. Judge David Sentelle wrote a separate concurring opinion to note the confusion in current Commerce Clause jurisprudence, in partciular the conflict between the holdings of Raich and United States v. Lopez. Wrote Sentelle: As appellant’s argument properly points out, Lopez limited the reach of the Commerce Clause to three categories. The first two are plainly not implicated by appellant’s conduct. Therefore, for the federal government to constitutionally regulate that conduct, it must fall within the category of “activities having a substantial relationship to interstate commerce . . . i.e., those activities that substantially affect interstate commerce . . . .” I am at a loss as to how purely intrastate possession of a product that has previously traveled interstate substantially affects interstate commerce. . . .Amen. Related Posts (on one page):
Scalia v. Roberts on Agency Deference in Rapanos:
Some commentators have zeroed in on a potential tension between Justice Scalia’s plurality opinion and Chief Justice Roberts’ separate concurring opinion in Rapanos over the issue of judicial deference to an agency’s statutory interpretation. This tension is interesting both because the Chief Justice joined Scalia’s opinion, and because it may tell us something about how the Roberts Court will approach future agency interpretations of regulatory statutes, both in the wetlands context as well as in future cases. Justice Scalia’s opinion adopts a particular interpretation of the meaning of “waters” in the Clean Water Act. Further, as the Cato Institute’s Mark Moller observes, Scalia’s opinion stresses “that before an agency can reach local conduct under a comprehensive regulatory program, Congress must clearly authorize it to do so in the statutory text.” Chief Justice Roberts, on the other hand, suggests that the statute is sufficiently ambiguous for the Army Corps of Engineers to “enjoy[] plenty of room to operate in developing some notion of an outer bound to the reach of their authority.” Justice Scalia seems to know what the CWA means, and devotes much of his opinion to analyzing the relevant statutory text, whereas the Chief finds it fairly ambiguous. Are these two opinions really in conflict? I am not so sure. Despite Justice Scalia’s focus on the text of the statute, his opinion avoids claiming that the precise scope of CWA jurisdiction is clear, and that no deference is due to the Corps of Engineers. To the contrary, his opinion notes that that "'waters of the United States' is in some respects ambiguous," and acknowledges that there is some "ambiguity" as to where land ends and water begins. All that is clear, according to the plurality, is that “the Corps’ expansive interpretation of ‘the waters of the United States’ is . . . not ‘based on a permissible construction of the statute.’” While portions of the opinion appear to be offering an authoritative interpretation of the term “waters” in the CWA, that is not what the opinion does. In administrative law terms, Scalia’s opinion rejects the Corps of Engineers’ interpretation at step two rather than step one of the familiar Chevron analysis. Indeed, Scalia quotes the step two test – whether the agency has adopted a “permissible construction” of ambiguous statutory text - in rejecting the Corps’ position. I believe this reading of the plurality opinion eases the apparent tension between it and the Chief’s concurrence. It also suggests that the federal government would retain substantial ability to go back and define “waters of the United States” in fairly expansive terms, even if it could not rely upon a fifth vote from Justice Kennedy for a broad interpretation of the Act. Commenting on Chief Justice Roberts’ concurring opinion, Moller offers the following interpretation: If the agency deliberates about its constitutional and statutory authority in a “limiting way” in the context of public notice and comment procedures, he would give the agency “generous” deference, even [if]the EPA would draw lines different (and more expansive) than those that Scalia’s plurality opinion draws.I would agree. My point is that nothing in Justice Scalia’s opinion necessarily contradicts this view. While I have little doubt that Justice Scalia would continue to read the CWA quite narrowly, his opinion offers the relevant agencies more wiggle room that it might at first appear. NOTE: I offer some additional thoughts on the Rapanos opinion in this NRO column . Related Posts (on one page):
More "Diversity" News--John Leo Column:
Leo, quoting this VC post, attacks willful defiance of the law by the ABA and others:
"Diversity" News: Federal Magistrate to Consider Racial Makeup of Law Firms in Choosing Class Counsel:
Minnesota Public Radio (temporary link):
I don't have the text of the order, but it sounds like Judge Noel is engaging in double-talk; "I'll consider the racical makeup of your law firm, but because it's not the only factor, it won't be the decisive factor," which isn't a coherent statement. UPDATE: More on this story: Robert D. Klausner, who is part of the legal team trying to be lead counsel on behalf of a group of pension funds, said his law firm has gotten requests like this from cities, although not as often from judges. Los Angeles recently hired his firm for pension work, and Klausner said they had to document ethical issues, minority business practices, and whether it offers health insurance for employees. I fail to see how the color of a lawyer's skin has anything to do with one's ability to represent a class, and it strikes me that a judge who gives an edge to a firm based on its racial (or gender) composition is obviously considering a criterion other than the best firm for the class's interests. It may be nice, in the abstract, that Judge Rosenbaum and his colleagues have decided that it makes them feel good to know that they are appointing "diverse" firms, but don't federal judges have an obligation to follow, you know, THE LAW?[If Judge Rosenbaum, Judge Noel, or any of their colleagues would care to explain why they believe that it's appropriate, legally and ethically, to "focus on" race and gender considerations in selecting class counsel, I'd be happy to post the explanation.] Further Update: BTW, this is MUCH more problematic than an employer that chooses on its own initiative to hire based on race or gender. In that case, one can argue about whether such policies are fair to white men, but the employer itself also bears the cost (or benefit) of the hiring decisions it makes. In the class counsel situation, the judges are getting the benefits (the moral satisfaction of helping to "diversify" the profession), but the costs of using criteria other than "the best able to represent the class" are born by the class, not by the judges. Yesterday's Campaign Speech Restrictions Case:
Rick Hasen, a leading election law scholar and author of the Election Law blog, has interesting thoughts here and here. Rick is more open than I am to the constitutionality of campaign speech restrictions, but I've always found his analysis to be thoughtful, fairminded, and interesting. Name Rearranging II:
In April I posted this puzzle about rearranging letters in the name of someone in the news. Today's challenge is very similar. A person who was in the news recently has first name that is 6 letters and last name that is 4 letters. Take the letters in the last name, add two letters and rearrange them all, and you get that person's first name. Who is it? Chunky Soup Curse:
I was on vacation when Ben Roethlisberger had his motorcycle accident and so I didn't realize at the time that he was set to film his first Chunky Soup commercial the next day. ArmchairGM has the full history of the curse and Big Ben's continuation of the legacy. Perhaps the fact that the injuries turned out to be less serious that originally expected just shows that this was a merely a warning from the Chunky Soup gods that Ben reconsider that endorsement deal. Judge vs. Jury Acquittals, Day 2
Wow. Some very thoughtful and perceptive comments were posted yesterday on the basic question of why federal judges are more likely to acquit than federal juries. This is fun. Let me pick up on a few of the points that people raised in their posts, to show what the data revealed. These figures are based on a study of about 77,000 federal criminal trials completed between 1989 and 2002. Those who read yesterday’s post will recall that I am trying to figure out both why judges are more likely to acquit than juries, and why the judicial conviction rate dropped sharply between the late 1980s and the early 2000s. Several folks hypothesized that the type of crime involved -- violent, property, drug, etc. -- might explain the disparity. Perhaps certain types of crimes are both steered toward a particular factfinder and are particularly likely to end with an acquittal. For example (I speculated), financial and regulatory crimes might be directed toward judges because both sides worry that jurors will misunderstand the evidence, and perhaps it is also the complexity of these cases that make them hard for the government to win. Or perhaps defense counsel avoid juries in violent crime cases, and so on. There may be something to this, but the figures don’t show much of an effect by case type. I looked at six crime categories: violent, property, drug, immigration, regulatory (crimes involving customs, social security, the mail, etc.) and public order offenses (a group that includes primarily traffic offenses – really – and guns). Two things became clear: (1) juries always convict more than judges, no matter what category of crime, usually by 15 to 30 percentage points, and (2) defense counsel prefer juries to judges in all types of cases. In only one category did the percentage of bench trials come close to half: 45% of public order trials are tried by the court. Interestingly, judges convict in only 47% of the public order cases, compared to an 83% conviction rate by juries. Another line of posts offered the insight that the “conviction gap” might be explained by the strength of the evidence. To paraphrase Judge Posner, perhaps innocent defendants want judges because they worry about a mistake being made, while guilty defendants want a jury trial, hoping a mistake will be made. I think this explanation has great intuitive appeal. But two brief points on this. First, it is darn hard to measure the strength of the evidence, at least on a large scale. The best indicator we have of the case strength is the outcome, but that leaves us chasing our tail if we are trying to evaluate the outcomes. This doesn’t make this explanation wrong, it is just hard to know if it is right. Second, if strength of the evidence explains a big piece of the conviction gap, we still need an explanation for why the jury conviction rate has remained steady while the bench rate fell significantly over the period studied. So while I like this explanation very much, I worry it is still speculative and incomplete. I have left out a lot of detail, much of which I hope is provided in the article (on SSRN, at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=843606 and perhaps in other posts later this week As always, questions and comments welcome at aleipold@law.uiuc.edu. Related Posts (on one page): Americans and Soccer, continued
Two brief responses to Todd's responses to my comments on Americans and soccer. He writes: "Americans don't like soccer because Americans don't like soccer. The sports embraced by a given society/country/culture are largely conventional and traditional." That's what someone once called "a nice theory, slain by an ugly fact." Within the last 30 years, Asians have gone from being soccer-indifferent to being possibly the most passionate fans on the planet -- FIFA had to disable all incoming traffic from Korea onto its website after Korea was eliminated from the World Cup because it was being inundated by angry fans! And the Thais and Malaysians make the Korena fans look tame. And the same, more or less, has happened in Africa, too. Second, Todd writes
Um, wrong. Two billion people are going to watch the World Cup final; it is a little odd that you talk about the "universal sentiment" here, or the "problem with the World Cup." The final of the World Cup is going to be decided, like all great soccer games, on a combination of incredible skill, team desire, and luck. You don't have to watch, if you don't like it -- fine by me. I think many Americans feel as you do -- that's OK, too. But don't tell me what the universal sentiment is! I'm outta here -- Brazil-Ghana is starting soon. [If this game were decided on skill alone, 46 people would watch it; the Brazilian team is so skillful they couldn't possibly lose a single game, ever. But in fact, they might lose ... and I will be joined by 500 million folks in front of the TV to see if this is the game in which it happens] Response to Kidnapping of Israeli Soldier Gilad Shalit:
Israel is poised to launch a major military operation in Gaza, which threatens to undo its withdrawal from that territory, and cause major civilian casualties (which, in fact, would serve the interests of the factions involved in the kidnapping), not to mention further casualties among IDF forces. What if, instead, Israel informed the kidnappers that if harm comes to Shalit, Prime Minister Olmert will call on the Knesset to immediately institute the death penalty for terrorist murders, and apply it retroactively? Instead of securing the release of terrorist prisoners, several dozen murderers in Israeli prisons (who richly deserve it, anyway), connected by political or family ties to the kidnappers will be executed. I'd much rather see the lives of guilty terrorists threatened than IDF soldiers and Palestinian civilians. Relatedly, Israel should institute the death penalty for terrorism, as keeping leading terrorists in jail has for decades given their compatriots an incentive to hold hostages in the hopes of securing their release, and Israel has frequently capitulated to such demands, with some of the released terrorists later committing further atrocities. I fail to understand what purpose is served by the consistent repetition of this scenario. Americans and Soccer:
Many electrons, and some ink, have been spilled over the past few weeks to explain why Americans don't watch/like soccer--too few goals, hands v. feet, diving, etc. To me, quite frankly, most of the hyptheses seem like ex post rationalizations rather than explanations, both on their own internal validity as well as the presence of counterexamples. Baseball and football certainly are bizarre in their own ways, baseball is low-scoring and has a long tradition of cheating and gamesmanship (even pre-steroids). Football may be one of the most peculiar and unique sports in the world, with the constant play interruptions for huddles and the like. So, as I said, I think most explanations are actually just rationalizations that aren't generalizable. I'm certain this is not terribly original, but my hypothesis is quite simple--Americans don't like soccer because Americans don't like soccer. The sports embraced by a given society/country/culture are largely conventional and traditional. For the same reason that Germans don't like baseball (and the Japanese do), and the Brazilians don't like football. Sports, as a spectator event, are essentially social network goods and preferences for one sport over another are almost purely conventional. The joy of sports is watching it together as a community and discussing and arguing about it together. As such, almost any sport will do to serve that function. People routinely gather together to watch sporting events, both live and in person. We generally don't gather together to watch other things on television, except the rare tv series finale or election night news coverage (another community event, of course). I don't think that the rising and falling fortunes of various sports has much to do with the intrinsic value of one sport over another, except at the extremes. All sports are inherently a completely arbitrary test of skill. You just create a set of arbitrary tasks and then the athletes perform them to the best of their ability. Why is NASCAR so much more popular than Indy racing? Why is Indy racing more popular in some subsections of the country? I can't see how the intrinsic differences between the two sports makes a difference. Why Australian Rules Football, curling (as in the Winter Olympics), or Irish hurling? As an aside, this is precisely the point that the Supreme Court failed to grasp in the Casey Martin case a few years ago--why do you have walk when you play professional golf? Because it is part of the sport. Why? Just because it is. Why a 10 foot hoop in basketball rather than 11 or 12 feet? Why 60 fee 6 inches to the pitcher's mound? Why 18 holes in golf? Why 500 miles for the Indy 500? Just because, that's the arbitrarily chosen task that comprises the sport and to ask "why" misses the entire point. The way to think of sports, I think, is like fashion (I'm sure this isn't original to me). The rising and falling interest in sports over time is just a matter of changing tastes, rather than one sport or another being better or worse than another. Having just read Jeremy Schapp's "Cinderella Man" I was stunned to learn how popular boxing was in the 1930s compared to all other sports. Babe Ruth's scandalously large contracts during that era were a small fraction of the amount that Jack Dempsey would pull down for one fight. Today, boxing is a borderline fringe sport. Ditto for horse racing. The Olympics may or may not be in a permanent death spiral--I suspect that it is too early to tell. Hockey has gone from one of the country's "four major sports" to essentially the same level as Major League Soccer, and I think the NHL strike just expedited a trend that was already underway. It is now standard to refer to the "three major sports" in the U.S. Casual sports fans used to be expected and able to watch and politely talk about the Stanley Cup playoffs; today that is no longer the case. So, the World Cup is becoming more popular because, well, it is becoming more popular. For whatever reason, one can speculate. But I'm guessing it has little to do with the intrinsic merits of soccer and more to do with the fact that it is becoming part of the lexicon of the casual sports fan, perhaps because it is fun to be wrapped up in an event of such global proportions. But, for instance, I don't expect much crossover from the World Cup's popularity to MLS. In the sense I am thinking of it, MLS is essentially a different sport from the World Cup because it is wrapped in a different social network, not because it is somehow a different sport. I had an interesting conversation with someone the other day who had been watching the World Cup with some degree of enthusiasm and interest. I asked him to name three guys on the DC United roster other than Freddy Adu. He named zero. He has watched the World Cup but has no plans to ever attend a DC United game or to watch DC United on tv (even though DC United is 9-1-5 this year and playing some great soccer). So while I'd like to believe that others will come to share my enthusiasm I am not optimistic--except in the Spanish-speaking community, from whom I consistently receive thumbs-up whenever I wear my DC United jersey. One final thought--at root, sports must still be a game of skill, no matter how arbitrarily chosen the task. David P. suggests that chance in the form of referee's calls is part of the appeal of the game. I don't think so. I think most fans deplore the impact of officiating in this World Cup and its impact on games. I was living in Italy in 2002 during the World Cup and my sense was that they didn't appreciate the role of questionable refereeing in determining outcomes, even before losing a game riddled with questionable calls. I think that soccer fans tolerate it because they always have and there does not seem to be sentiment at the highest reaches of the sport to try to change it. In the end, it should be skill, not chance that decides games, and this seems to be a universal sentiment. One problem with the World Cup is that the talent levels are so compressed these days that almost every game comes down to a single goal and thus one referee's call (a penalty kick or quetionable red card) can thus prove decisive in a game. If one wanted to think about how to reform the system there seems to be two possible approaches. One approach would be to try to increase accuracy, such as by adding a second referee on the field--it is not plausible that one referee can competently cover the entire field today when the players are so fast and strong. US basketball moved from two to three referees a decade or so ago and--somewhat counterintuitively--empriical evidence finds that the number of fouls called in games actually fell. The reason is because that more referees dramatically increased the probability of detection, so players became less likely to try to get away with something. A second approach would be to try reduce the impact of referee's decisions on games, and especially red cards, such as by allowing suspensions within the game calibrated more closely to the severity of the offense (e.g., something like a "penalty box" with 5 or 10 minute suspensions, rather than red cards). It is also worth at least considering, I think, whether to allow the use of instant replay for situations such as the end of the Italy-Australia game yesterday (althought I suspect instant replay would be a bridge too far for soccer). A final, final thought--I do give the soccer bureaucracy a great deal of credit for one innovation adopted about 10 years or so ago, which is to change the scoring system to award 3 points for a win and only 1 for a tie (it previously was only 2 points for a win). This was a response to a perceived willingness of teams to prefer the risk-averse strategy of playing for ties and to encourage going for the win, and indirectly, to play attacking, offensive-minded soccer. Along with the addition of the three-point basket in basketball, I think this was an ingenious way of improving the game by changing the incentives of teams, rather than to change the rules in such a manner as to try to directly change the game. The emphasis on giving more yellow cards during this world cup, regrettably, seems to have been a much less elegant innovation. Americans, Soccer, and Scoring con't:
Bobo makes some very interesting points in a comment on my earlier posting about soccer referees. He/she writes:
More evidence, I think, that the things soccerphobes dislike about the game are the very things that fans love about it. Re the infrequency of scoring: Nick Hornby, in his wonderful soccer memoir "Fever Pitch" (highly recommended), has a wonderful list of the ingredients that go into making a truly great soccer game, the kind of out-of-body ecstasy that soccer can induce and which all soccer fans understand. Some of the ones I recall (I don't have the book with me): home game for your team; home team wins, 3-2, after trailing 2-0; outrageously bad penalty call against your team [followed by a missed penalty kick by the other side]. So it is absolutely true: if you're losing a soccer game 2-0 with 10 minutes to go, you have a mighty slim chance of winning, and you are almost certainly going to be walking out of the stadium depressed and disappointed. But . . . it does happen. Teams do come back. And if this is the game in which it happens, you will never, ever, forget the experience of watching it. It will be roughly equivalent to having sex with all of the other fans, simultaneously. In 1999 Man. U scored two goals in the last 4 minutes of a Champions League Final -- unlike the World Cup final, which will be watched by ten times more people than watch our "Super Bowl," the Champions League final is watched by only 4 or 5 times more people than watch our Super Bowl. It's kind of a big deal. I'm not a Man U. fan -- but I cannot even imagine what it must have been like to be a Man U fan in that stadium that night. You might have to watch many, many games before it happens. You may go a lifetime and only experience it once or twice -- or, god forbid, never. That's why you go to a lot of games -- to be sure to catch it when it happens. When I first discovered soccer, I, too, came up with lots of great ideas for how to get more scoring. Widen the penalty box -- make the net bigger -- etc. etc. But then it hit me. Soccer is the great team sport because it is a test of team will, and it is a test of team will precisely because it is so damned hard to score a f**king goal. You have to run down that field, time and time and time and time again, knowing full well that there's "practically no chance" anything will come of it. Again and again and again. You might have to do it for ninety minutes and get nothing, and then you have to do it again in the next game. It is exhausting, physically and, even more, mentally. But you have to keep doing it, because the moment you stop doing it -- the moment anyone on the team starts to think about not doing it -- you lose. Character and belief and determination and will become very, very transparent in these circumstances, and soccer, more than any other sport I know of, is about these things. Scoring is incredibly difficult -- but if you let yourself believe that you can't score, you will not score. It's why you'll see soccer fans sometimes giving their team a standing ovation after a 0-0 draw -- because character and determination and belief are very transparent, and can be detected even when no goals have been scored (perhaps best, actually, when no goals have been scored). And not only is scoring a goal incredibly difficult, just as a matter of technique and athletic skill -- did you see the goal that Argentina's Maxi Rodriguez scored against Mexico to win that game??? I know people always say that hitting a baseball is the hardest thing to do in sports, but come on ... try this at home: on the run, take a ball coming towards you from 40 yards away onto your chest, bring it down and before it hits the ground smack it into the upper corner of the net, 30 yards away, with your off-leg (i.e, righties have to do this with their left leg, and vice versa --- it even has an element of total randomness to it. That's life, as they say. NBA Draft Promises:
Interesting post by Mike McCann on the question of whether a basketball player could enforce an oral promises by an NBA team to draft him if he enters the NBA draft early. My initial intuition is that this is best enforced by extralegal forces, such as the team's and management's reputation, and that any promise would be subject to an implicit condition that the team could change its mind depending on what happened during the draft. Nonetheless, there is clear detrimental reliance here that is induced by the team, and as a result, at least some intent to be bound. Interesting question, and it isn't obvious to me how it would be resolved. Mike suggests that so far the extralegal sanctions appear to have been strong enough to cause these promises to be enforced. The Cult of "International Law":
I've noticed in a variety of contexts that there are some rather well-educated, articulate individuals out there who have what seems to me to be a fanatical, quasi-religious belief in "international law", and the idea that it should trump any other conflicting consideration. In the constitutional law field, this is reflected in the argument that the president and the courts should ignore domestic law and the Constitution if they conflict with international law--even if the United States isn't a party to any binding international agreements on the particular subject at hand. On a more personal level, I've had a few email conversations with Volokh Conspiracy readers along the following lines: Reader: Israel is illegitimate because it violated international law by not allowing Palestinians who fled Israel during the War of Independence to return. Me: I'm not an expert on international law [UPDATE: For the record, and in response to some of the comments below, I'm not conceding that Israel did indeed violate international law in this matter. I don't know anything about it, though comments below and an email I received cast grave doubt on the matter. But I didn't argue the point in my correspondence] but I do know something about Israeli history. There is no practical way Israel could have permitted the return of most of these refugees. First, the Palestinian and broader Arab leadership remained committed after the war to Israel's destruction. The Arab community within Israel's border had participated in the war against Israel. The immediate result of allowing hundreds of thousands of generally hostile Arabs back into Israel (which had well less than a million Jewish residents at its founding) would have been constant intercommunal violence and ultimately another war. You can't expect Israel to have committed national suicide. Reader: International law says Israel had to do it anyway. Me: But Israel was busy resettling hundreds of thousands of Holocaust survivors, as well as hundreds of thousands of refugees thrown out of Arab countries, many of whom had to live in tents for years. Israel simply didn't have the resources to deal with those problems and also deal with trying to resettle hundreds of thousands of hostile Arabs. Reader: Doesn't matter, Israel was violating international law. Me: But most of the refugees moved only a few miles from their original homes, to places where the culture and language was often indisinguishable from their hometowns. It was like moving from Brooklyn to Queens. Surely the Arab countries that had participated in the war against Israel, and had egged on the Arabs of Palestine to launch a war against the Jews, should have simply funded the resettlement of the refugees. Indeed, even the money that has gone to UNRWA over the years from the West would have more than sufficed. Instead, the Arabs preferred to use the refugees as a propaganda tool, and canon fodder, against Israel. Reader: All well and good, but Israel was in the wrong, because it violated international law. I'm not exaggerating when I say that I've had several correspondences along these lines, none challenging the points I raised (though not necessarily assenting, either), but simply arguing that any such points are completely irrelevant, because all that matters is whether or not Israel violated international law. It has struck me that debating such people is just as frustrating and unproductive as arguing with a religious believer about some matter within the scope of his religious belief--just substitute "God says so" for "international law says so." The point of this post is not to defend the points I made in my email correspondence, but to ask informed readers about when and how "international law" gained such cult-like status that well-educated people believe that merely invoking it (or their interpretation of it) is sufficient to settle even the most nuanced and contentious debates, that it should always trump domestic law, etc. Please restrict your comments to either explaining, or, if you are so inclined, defending, this phenomenon. (Or is "international law" largely invoked to try to restrain the actions of the U.S. and Israel, but largely ignored more broadly?--e.g., I haven't heard of any other nation's besides Israel's legitimacy being questioned because of past or even present real or imagined violations of international law.) Monday, June 26, 2006Ukraine Advances in the World Cup:
Ukraine, the homeland of the Volokh clan (and of several of my ancestors), has advanced to the quarterfinals of the World Cup, by far their best result ever. If they win their next game, they will equal the best showing ever by the old USSR team (which could draw on a much larger talent pool, including Russia, Ukraine, and the rest of the Soviet empire).The Ukrainian team defeated Switzerland on penalty kicks after a scoreless game. Despite the euphoria in the Volokh household, penalty kicks are a very poor way to break ties in a soccer game. It's much like deciding the outcome of a tie game in basketball by a free throw shooting contest. In my view, a far preferable solution is to require the teams to play until one scores a "sudden death" goal, as is done in the National Hockey League playoffs. The argument against this approach is that the game might go on on interminably, exhausting the players and hurting the winning team in the next round. However, a team that could not defeat its opponent in regulation time deserves to be disadvantaged in the next round relative to an adversary that did. Moreover, as experience in the NHL, NFL and other sports shows, sudden death overtime is tremendously exciting and helps stimulate fan interest. But if excessively long games are a real concern, the rules can be altered to reduce the number of players for each side during overtime (e.g. - going from 11 to 10 after 30 minutes of overtime, 10 to 9 after the next 30, and so on). Each reduction in personnel would increase the chance of a goal and make it less and less likely that the tie will continue. And a 9 on 9, 8 on 8, or even 5 on 5 soccer game is much closer to ordinary play than taking a penalty kick, thus eliminating the anomaly under which a game is decided by a competition vastly different from normal nature of the sport. Former VC Blogger Takes Center Stage:
Michelle Boardman, previously an occasional co-blogger here at the VC and currently a Deputy at DOJ's Office of Legal Counsel, will be in the hot seat tomorrow defending the Administration's use of Presidential signing statements before the Senate Judiciary Committee. The hearing should be well worth watching.
Gun Control in French-speaking Africa. Le contrôle des armes en Afrique francophone
A new report from the Independence Institute reports on gun control developments in Rwanda, Burundi, Ivory Coast, D.R. Congo, and ECOWAS in the last several weeks. The report is in both English and French. En francais et anglais. Scalia v. Alito:
Today's decision with the most interesting lineup is undoubtedly United States v. Gonzales-Lopez. In this case, the court held, 5-4, that if a trial court erroneously deprives a criminal defendant of his choice of defense counsel, the defendant is entitled to a reversal of his conviction under the Sixth Amendment. Justice Scalia wrote the majority, for himself and Justices Stevens, Souter, Ginsburg, and Breyer. Justice Alito dissented, writing for himself, the Chief Justice, and Justices Kennedy and Thomas. The opinions are here. Related Posts (on one page):
Money and Speech:
This morning's campaign speech case from the Supreme Court, Randall v. Sorrell, leaves me with little new to say, which is fortunate because I have little time right now to say much about it. Still, Justice Stevens's repetition of the old saw that "it is quite wrong to equate money and speech" struck me as mistaken enough to be noteworthy. (The occasional argument of some critics of campaign finance law that money is indeed speech is equally mistaken.) The reason that the Court struck down the law here — which, among other things, would have limited a candidate's total spending for Vermont state representative races to $2000 for both the primary election and general election put together — is not that money is speech. Rather, it's that restrictions on spending money to speak are restrictions on speech, and "money is speech" is, I think, a misleading way of expressing this claim. Just consider some analogies. Would we say "money is abortion"? I doubt it, but a law that banned the spending of money would surely be a serious restriction on abortion rights (whether or not you think that the Court was right to recognize such rights). A law that capped the spending of money for abortions at a small amount, far smaller than abortions often cost, would likewise be a burden on abortion rights, and dismissing this argument as "it is quite wrong to equate money and abortion" would be unsound. Likewise, we wouldn't say "money is education," or "money is lawyering." Yet a law that capped private school tuitions at $2000 (not just limited the amount of government-provided scholarships, but capped private spending by parents for tuition) would be a serious, likely unconstitutional, burden on the right to educate one's child at a private school. Likewise, a law that barred wealthy defendants from spending more than $20,000 — or even $200,000 — for assistance of counsel would violate the Sixth Amendment. Even if for some reason you thought that these laws should be upheld, the response that "it is quite wrong to equate money and [education / lawyering]" would be an unsound response. Similarly, we wouldn't say "air travel is speech," or "computing power is speech." Yet surely a law that would limit the use of air travel or computers in political campaigns would be understood as a serious restriction on speech. I also have differences with other aspects of Stevens's opinion, as well as with other opinions, including the Thomas/Scalia concurrence, but I lack the time to discuss them here. For now, I just thought that "money is speech" / "money isn't speech" is a common enough catchphrase in these debates (going all the way up to the Supreme Court) that I thought it might be helpful to speak briefly about it. For my criticisms of the Thomas/Scalia position, see Part III of this article. Note also this amusing summary of the opinions, by Allison Hayward (Skeptic's Eye). Supreme Court Sharply Divided Over Death Penalty:
I have a new post on the Supreme Court's decision this morning in Kansas v. Marsh over at my solo blog.
Usage Futures:
It occurs to me that it might not be too long before the phrase "phone call" disappears -- more and more people aren't using "phones" for their voice communications as much these days, with blackberries and Skype and all the rest. Though I suppose the phrase could survive and end up in the "hey, i just found out why we call it X" category down the road. It Depends on the Meaning of "Fall":
How to raise the LSAT's of a law school's "Fall entering class"? Simply admit those with lower scores into your "Summer" class. Tom Bell has the story at Baylor. Update: And a similar story at University of Florida. Acquittal Prone Federal Judges
Many thanks to Eugene for inviting me to make some comments on some recent research. A few years ago I noticed in the Sourcebook of Criminal Justice Statistics that federal defendants who stand trial are much more likely to be acquitted in a bench trial than by a jury. This seemed odd to me – I had always assumed the opposite was true. So I studied government records for federal trials between 1989 and 2002 and found a number of surprising things. First, I found that the gap between bench acquittal rates and jury acquittal rates was quite large: over the 14 years I studied, the average conviction rate in jury cases was 84%, while judges convicted slightly more than 50% of the time. Second (using other data), I found that this gap was a recent phenomenon. Between the early 1960s and late 1980s, the conviction rates for judge and jury was roughly the same; the 20 years before that, judges actually convicted much more often than juries. So the goal was to try to explain why this “acquittal gap” between bench and jury exists, and secondarily, why it had grown so large since the late 1980s. To make sure I wasn’t stumbling around in an academic fog, I started by interviewing two dozen federal prosecutors and defense counsel to see if their instincts were the same as mine. They were: of the 24 lawyers I spoke to, only a very few knew or guessed that judges are more likely to acquit. The rest were mildly to strongly certain that juries were more favorable to the accused. During the coming week discuss some of the variables I looked at -- type of case, seriousness of charge, type of defense lawyer, strength of the evidence, etc.), as well as some of the conclusions I drew. Questions, comments, and criticisms are welcome, aleipold@law.uiuc.edu. The full paper can be found at 83 Wash.U.L.Q. 151, from SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=843606. Related Posts (on one page): Climate Change Goes to the Supreme Court:
Among the five cases granted certiorari this morning was Massachusetts v. EPA, a challenge by several states and environmental groups to the EPA's refusal to regulate greenhouse gases under the Clean Air Act. The case involves interesting standing and statutory interpretation issues, about which I hope to have several posts in the coming weeks. Background materials, the lower court opinions and Massachusetts' cert petition can be found here. The Justice Department's brief in opposition is here. Between this case and the New Source Review case already before the Court, next term promises to be a very important one for environmental law. Acquittal-Happy Federal Judges?
A few months ago I read an article by Prof. Andy Leipold called Why are Federal Judges so Acquittal Prone?, and found it very interesting, so I invited Andy to join us for a week to post about his findings. Andy is an accomplished criminal law scholar, and Professor and Co-Director of the Program in Criminal Law and Procedure at the University of Illinois College of Law. I hope you find his observations as intriguing and eye-opening as I did. Related Posts (on one page): Sunday, June 25, 2006Senator Bob Byrd - From Exalted Cyclops to King of Pork:
Washington Post reporter Michael Grunwald has an interesting article on West Virginia Senator Robert Byrd, onetime "Exalted Cyclops" of the Ku Klux Klan and currently the longest-serving senator in American history. The article summarizes what the author delicately refers to as Byrd's "discomfort with racial issues" (which, as the article points out, continued long after he left the Klan in the 1940s, and even after he eventually denounced the KKK and apologized for having been a member). It also makes some worthwhile points about Byrd's later career as the Senate's King of Pork:
The kind of Jim Crow racism that Bob Byrd supported for many years is today largely a relic of the past, even if less virulent and more subtle forms of racial prejudice persist. But the culture of porkbarrel spending that he exemplifies is alive and well in both parties on Capitol Hill. Perhaps the sorry history of West Virginia can help persuade people that there are better ways to achieve prosperity than becoming a "ward of the federal government" dependent on the likes of Senator Byrd. Pushing Philly in New York:
As a Philadelphia native, I was tickled by this series of mock ads designed by advertising students to encourage New Yorkers to move to Philadelphia (described here). (Link via Concurring Opinions.) Rep. King Wants NYT Prosecuted:
Representative Peter King (R-NY), Chairman of the House Homeland Security Committee, believes that the Justice Department should look into prosecuting the New York Times for its stories on classified government anti-terror programs, such as this article on federal monitoring of international financial records. Appearing on FoxNews Sunday this morning, Rep. King said:
Appearing with Rep. King, Senate Judiciary Committee Chairman Arlen Specter (R-PA) was unwilling to jump on the press prosecution bandwagon.
The full transcript is here. Additional coverage is here. All Related Posts (on one page) | Some Related Posts: The Origins of RFK Jr's Election Story:
Today's NYT profiles Robert F. Kennedy Jr., covering his environmental activism and his recent foray into electoral politics. Among other things, it contains this account of what inspired his Rolling Stone article alleging Republicans "stole" the 2004 Presidential election.
UPDATE: Tom Maguire comments on the NYT story here. Related Posts (on one page):
Sunday Song Lyric:
Redheadlaw7 is no longer a redhead. Having returned to being a brunette, she might be more accurately referred to as "suedehead." "Suedehead" is also a song on Viva Hate, Morrissey's first (and perhaps best) solo album. Viva Hate also featured "Every Day Is Like Sunday" -- a song that has "Sunday Song Lyric" written all over it. But not today. My favorite song on the album was always "Alsatian Cousin," so it's the Sunday Song Lyric for today.
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