Bush's Dad Asks For Keys to White House Back:
From the Borowitz Report.
Saturday, November 18, 2006
When is it legitimate for the Media to help "out" a gay person?
Almost never, I argue in my latest media column in the Rocky Mountain News. The column begins with the outing of minister Ted Haggard, and analyzes the history of outing -- from German government officials in the early 20th century, up to the present.
Friday, November 17, 2006
Blackstone's Postscript:
I have two early sets of Blackstone's Commentaries on the Laws of England, and I was reminded today of the interesting Postcript inside one of the editions (a 12th Edition, published in 1793) in which Blackstone responds to his critics. The postscript appears right after the preface from the original edition, dated November 2, 1765, which Blackstone had ended by apologizing to the reader for any errors in such a massive undertaking: "the candid and judicious reader will make due allowances for the difficulties of a search so new, so extensive, and so laborious."
Here is the postscript that appears on the next page:
Here is the postscript that appears on the next page:
NOTWITHSTANDING the diffidence expressed in the foregoing Preface, no sooner was the work completed, but many of its positions were vehemently attacked by zealots of all (even opposite) denominations, religious as well as civil; by some with a greater, by others with a less degree of acrimony. To such of these animadverters as have fallen within the author's notice (for he doubts not but some have escaped it) he owes at least this obligation; that they have occasioned him from time to time to revise his work, in respect to the particulars objected to; to retract or expunge from it what appeared to be really erroneous; to amend or supply it when inaccurate or defective; to illustrate and explain it when obscure. But, where he thought the objections ill-founded, he hath left and shall leave the book to defend itself; being fully of opinion, that if his principles be false and his doctrine unwarrantable, no apology from himself can make them right; if founded in truth and rectitude, no censure from others can make them wrong.Incicentally, according to the dictionary, "animadverter" roughly means "critic."
ACLU Sues Library for Allegedly Blocking Access to Second Amendment Foundation Site
(among others). The the ACLU's Complaint claims that the libraries are using filters to block certain material, and refusing to manually unblock the material on the user's request:
[T]he NCRL has configured its SmartFilter software to block Web sites in the following categories, or in categories equivalent to the following categories: Alcohol, Anonymizers, Chat, Criminal Skills, Dating/Social, Drugs, Extreme, Gambling, Game/Cartoon Violence, Gruesome Content, Hacking, Hate Speech, Malicious Sites, Nudity, P2P/File Sharing, Personal Pages, Phishing, Pornography, Profanity, School Cheating Information, Sexual Materials, Spyware, Tobacco, Violence, Visual Search Engine and Weapons. [This is necessarily a tentative allegation, based on the ACLU's current information and belief; presumably discovery during litigation will confirm or correct this.]
Plaintiff Sarah Bradburn has attempted to use computers maintained by the NCRL to conduct Internet research -– particularly regarding alcohol and drug-addiction topics -– in connection with academic assignments. When Ms. Bradburn tried to access material and obtain information relating to youth tobacco usage, the Internet filters that the NCRL had installed on its computers prevented her from doing so....
Plaintiff Pearl Cherrington is a professional photographer, her work consisting mostly of landscapes and outdoor scenes. She has attempted to use computers maintained by the NCRL to conduct Internet research and obtain information regarding art topics – including art galleries that might be interested in displaying her work. She has also attempted to use NCRL computers to conduct Internet research and obtain information about health topics. Her ability to conduct her research and obtain information via the Internet has been restricted by the filters that the NCRL has installed on its computers....
Plaintiff Charles Heinlen has attempted to use computers maintained by the NCRL to conduct Internet research and obtain information on topics relating to firearms. His ability to conduct research and access information related to firearms has been restricted by the Internet filters that the NCRL has installed on its computers. The filters have also denied Mr. Heinlen access to various dating sites, publications such as Soldier of Fortune Magazine (www.sofmag.com), the Web log (or “blog”) that he maintains at www.myspace.com, and photographs embedded in commercial emails that are sent to his Hotmail and Yahoo! email accounts....
One of the publications that Plaintiff SAF sponsors is Women & Guns, a magazine with its own Web site, located at www.womenandguns.com. Women & Guns is written and edited by women, for women. It covers topics such as self-defense, personal protection, recreational shooting, new products and legal issues. Women & Guns’ Web site has been blocked by the Internet filters that the NCRL has installed on its computers. The information contained in Women & Guns is protected by the First Amendment of the Unites States Constitution and by Article I, Section 5 of the Washington State Constitution. Because the NCRL’s Internet filters have blocked access to www.womenandguns.com on the NCRL’s computers, SAF has been prevented from communicating with Internet users in North Central Washington who rely on public library computers for Internet access.
Whether libraries have a First Amendment duty to disable filters on patron request is an unsettled question; the Court's United States v. American Library Ass'n (2003) left the matter unresolved. The ACLU's Web page also says that "the U.S. Supreme Court has interpreted the [federal library funding law that requires some filtering out of sexually explicit material] to mean that libraries should disable those filters upon the request of an adult," but in my view that's an overreading of ALA. Those who want to read my quick summary of the current state of the Supreme Court's law of government-funded speech can click below. (Note that the summary is from the relevant chapter of my First Amendment textbook; it is necessarily sketchy, since it's aimed at students who will read the summary and then [supposedly] read the cases that the summary refers to.)
Nonetheless, while the ACLU's First Amendment argument is far from an obvious winner, the case is important and interesting (and will be even more so if it ends up leading to an appellate decision, rather than just settling). And it's good that the ACLU is exposing such practices on the library's part, practices that strike me as bad service to Washington residents, even if they are ultimately found to be constitutionally permissible.
The Failure of Intimate-Violence Prevention:
My intimate homicide data does not conclusively explain why the criminal justice system in the late 1800s and early 1900s punished intimate murders committed by men but failed to prevent them from occurring. However, my University of Colorado Law Review article (see 77 Univ. Colo. L. Rev. 101 (2006)) offers several hypotheses: “First, the decline of neighborly and family intervention against intimate violence thrust the problem upon a police force that was too corrupt and brutal to handle it effectively. Second, caught in a cycle of violence and dependence, some victims impeded solutions by refusing to seek or accept help from the police. Third, whereas Victorian social values . . . generally condemned a man’s brutality against his girlfriend, wife, or family, the same countercurrents that produced intimate assaults frustrated efforts to curb them.”
Nineteenth-century police officers were widely criticized in the press for being partisan and unprofessional and for using excessive force against criminal suspects. Some of them beat or even killed their own wives, as well: “In 1891, for example, on-duty patrolman William Smith inflicted a fatal head injury on his wife with his truncheon after she interrupted him at the [New York] saloon where he drank and caroused with another woman. Police officers’ notorious readiness to lie, cheat, and assault may have . . . deterred victims from seeking their assistance.”
The arrest and prosecution of batterers was hampered by the unwillingness of victims to report abuse and by victims' tendency to recant their allegations before or during the criminal trial. As I note in my article:
Two [other] factors seem to have led to non-reporting and victim recantation. First, as the Borgstrom case [see 70 N.E. 780 (N.Y. 1904)] demonstrates, a visit from the police might cause an abuser to become even more violent. A typical New York City woman was afraid to have her husband arrested for beating her ‘as he would murder her if he ever got out [of prison].’ Second many victims of intimate abuse worried that their family’s livelihood would be destroyed by a criminal case. Battered wives, in particular, might face terrible hardship if the men upon whom they depended financially were imprisoned, fired from their jobs, or shunned by business associates for being wife beaters. The spouse of New York City police officer William Smith, who clubbed her with his truncheon, attempted to keep the cause of her ultimately fatal injuries a secret. As her brother testified, ‘she was shielding [her husband], she was afraid he would be broken off the police if she reported his attack on her.’
Some police officers did respond to reports of intimate violence, but their efforts often “met other forms of resistance, besides victim recantation. Some were shot or faced life-threatening assaults from wife-beaters and their cronies.” In New York City in 1891, for example, Officer Herrlich was assaulted by an allegedly abusive husband’s friends, who pelted the officer “with stones and huge pieces of ice” when he responded to a call for help. As I contend in my article:
Such incidents confirm the resilience of beliefs in the wife-beating prerogative. However, I am less convinced than other feminist scholars that the white male establishment simply transformed its rhetoric to hide a firm commitment to the brutal subjugation of women. Rather, in my view, the ice-throwing incident described above [and the intimate murder cases that I analyze in my article] reveal a deep cultural rift over the issue of intimate violence . . . Punishing murderers may have reinforced the status regime ensuring that the white male establishment did not undermine its claims to legitimacy by shedding too much intimate blood.
Nevertheless, resilient beliefs in the wife-beating prerogative were not synonymous with a conspiracy against women. In my view, it is more plausible that, instead of being controlled by a hegemonic gender ideology, late nineteenth-century and early twentieth-century America was divided over whether violence had a legitimate place in family government. The press and the jury box demonstrated little empathy for males who killed their intimates, and policemen like Officer Herrlich even attempted to quell the battering before it escalated to homicide. In spite of such efforts, some American men continued to believe that ‘a few thumps once in a while can do no harm.’
. . . [T]he same values that promoted protectiveness toward women contained loose threads that often unraveled in actual intimate relationships. Frustrated by their inability to achieve success in the public sphere, husbands, fathers and brothers may have stuck angrily at those who loved and lived with them. Told to be sober, restrained, and industrious, some [Victorian] men rebelled and were none of these things. As ideals of masculine physicality began to supplant Victorianism around the turn of the century, certain aspects of the new ideal seemed to resonate with the violent conquest of women. Even though public figures like [Theodore] Roosevelt denounced child-murder and wife-beating and placed the American mother on a pedestal, other voices — including those of eminent scientists — celebrated men’s primitive sexual instincts as a counterweight to the ‘unnatural’ behavior of the woman suffragists. This competing strand of early twentieth-century culture suggested that, if females failed to be modest, refined, and maternal, all bets were off . . . [w]oman must then bear the brunt of unfettered masculine violence.’ In increasingly anonymous urban environments that were not policed effectively, such tensions and countercurrents killed.
My article ends with cases from the Progressive Era. I am now starting a book project that would extend my research beyond 1920 to discover how and why sympathy for women accused of murdering male intimates waned, so that the efforts of defense attorneys to introduce battered woman’s syndrome evidence in the late twentieth century were initially met with hostility from the bench and the legal academy. My current hypothesis goes something like this: When women gained the vote and began to work side-by-side with men in the public sphere, the paternalism that characterized public responses to the homicide cases of the late 1800s and early 1900s diminished.
In writing this book, I plan to expand the geographical scope of my research to include other American states, such as California, Massachusetts, and Illinois. I also would like to include data from other countries. For example, I am investigating the possibility of using secondary scholarship and archival material from Australia to assess whether another frontier society approached the problem of lethal intimate violence in a comparable way to Colorado. Because my research is ongoing, I would be especially gratified to receive feedback on the material I have posted here.
Borat Speaks:
Sacha Baron Cohen comes out of character to defend "Borat" from its critics.
One More State Constitutional Decision:
The 1846 case Nunn v. State was the first case in which a court used the Second Amendment to invalidate a gun control law. The Georgia legislature had banned the sale and possession of knives intended for offensive or defensive purposes and pistols, except "such pistols as are known and used as horse man's pistols." The law made an exception which allowed possession (but not sale) of the banned weapons if the weapon were worn "exposed plainly to view."
The Georgia Constitution at the time had no right to arms provision, but the state Supreme Court combined natural rights analysis with the Second Amendment to declare the law unconstitutional:
[When] did any legislative body in the Union have the right to deny to its citizens the privilege of keeping and bearing arms in defence of themselves and their country?The Georgia court kept the introductory clause to the Second Amendment firmly in view: "our Constitution assigns as a reason why this right shall not be interfered with, or in any manner abridged, that the free enjoyment of it will prepare and qualify a well-regulated militia, which are necessary to the security of a free State." Thus:
. . . [T]his is one of the fundamental principles, upon which rests the great fabric of civil liberty, reared by the fathers of the Revolution and of the country. And the Constitution of the United States, in declaring that the right of the people to keep and bear arms, should not be infringed, only reiterated a truth announced a century before, in the act of 1689, "to extend and secure the rights and liberties of English subjects"--Whether living 3,000 or 300 miles from the royal palace.
If a well-regulated militia is necessary to the security of the State of Georgia and of the United States, is it competent for the General Assembly to take away this security, by disarming the people? What advantage would it be to tie up the hands of the national legislature, if it were in the power of the States to destroy this bulwark of defence? In solemnly affirming that a well-regulated militia is necessary to the security of a free State, and that, in order to train properly that militia, the unlimited right of the people to keep and bear arms shall not be impaired, are not the sovereign people of the State committed by this pledge to preserve this right inviolate?...
The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta! And Lexington, Concord, Camden, River Raisin, Sandusky, and the laurel-crowned field of New Orleans plead eloquently for this interpretation! And the acquisition of Texas may be considered the full fruits of this great constitutional right.
(italics omitted). The opinion concluded by holding that the ban on concealed carrying was valid because it did not interfere with a citizen's Second Amendment right; but insofar as the law "contains a prohibition against bearing arms openly, [it] is in conflict with the Constitution, and void . . . ." Since the indictment did not specify that Nunn's weapon was concealed, the charges were quashed.
Thursday, November 16, 2006
A Pretty Easy Question:
As I type this, the VC is featuring an ad for the movie Fast Food Nation, which asks, "Who do you think is harmed most by fast food chains: the animals; the workers; or the consumers?"
Hmm, unless McDonalds et al. are paying for the slaughter of workers and consumers, grinding them up, cooking them, and serving them in their restaurants, I'll have to go with "the animals."
More on Milton Friedman and Israel:
Building on Ilya's last post, I remember reading a funny story about a visit by Milton Friedman to Israel in the 1970s, which may or may not be aprochryphal. To understand the story, you need the following background information: First, Israel traditionally has had a five and a half day workweek. Second, in the 1970s many Israelis worked for state-owned enterprises, which, due to a combination of stifling labor union rules imposed by the hegemonic Histadrut labor federation and typical bureaucratic ineptitude and slothfulness, didn't pay very well, but required very little effort from employees (like the old Soviet joke: we pretend to work, they pretend to pay us).
According to the story (to the best of my recollection), Friedman, in Israel, is talking to a large group of business, labor, and political leaders. One of the business leaders gets up and asks, "Professor Friedman, what do you think of the idea of following the lead of the United States, and having our employees work five days a week?" Friedman responds, "I think that's much too drastic a step and will upset labor-management relations! Instead, why don't you start by getting your employees to work one day a week, and then, over time, ratchet it up to two, then three; eventually, over many years, maybe you can get them to work five days a week!"
Related Posts (on one page):
- More on Milton Friedman and Israel:
- Milton Friedman on Israel and Jewish Support for Socialism:
- Talk about your tired Socialism:
Milton Friedman on Israel and Jewish Support for Socialism:
David Bernstein's post on the excesses of Israeli socialist ideology remind me of Milton Friedman's 1972 essay, "Capitalism and the Jews: Confronting a Paradox," (I haven't been able to find an online link, but it's available in Kurt R. Leube ed., The Essence of Friedman at 43-57 (1987)). Friedman addressed the interesting question of why Jews tend to be hostile to capitalism and sympathetic to socialism despite the fact that, historically, Jews have been most successful and most tolerated in those societies where free markets and civil society were relatively unfettered, and suffered most from anti-semitism in highly socialized and statist economies (worst of all under Soviet socialism and, of course, Hitler's National Socialism).
He argues that Jewish support for socialism was partly a reaction to the fact that in 19th and 20th century Europe, the right-wing parties tended to be nationalistic and anti-semitic, so that Jews were naturally drawn to their political opponents (at the time mostly socialists and statist liberals). More interestingly, Friedman suggests that Jewish socialism was in part a reaction to the stereotype of the Jew as a greedy capitalist, an attempt to "prove" the stereotype wrong. He specifically references Israeli attitudes as the most extreme manifestation of this mentality. And in fact early socialist Zionist ideology emphasized the need to reject the stereotypes associated with Diaspora Jews; socialist Zionists called for what they called "Negation of the Diaspora." They especially decried the association of Diaspora Jews with trading and capitalist commercial enterprise, but also (to a lesser extent), private philanthropy and civil society organizations of the kind foolishly denounced by Israel's socialist Defense Minister Amir Peretz, quoted in David's post.
Despite Peretz's idiotic comments, my impression is that "Negation of the Diaspora" and its associated anti-capitalism is a less powerful force in Israeli political culture today than it was early in the state's history. Hopefully, attitudes like Peretz's are on the way out.
Related Posts (on one page):
- More on Milton Friedman and Israel:
- Milton Friedman on Israel and Jewish Support for Socialism:
- Talk about your tired Socialism:
Law Students Donating Canned Food To Get Immunity from Being Called on in Class:
At various law schools, student groups organize what are sometimes called "canned immunity" drives — if students donate canned food that will end up going to a soup kitchen or some similar charity, the professors agree not to call on them. I've always been vaguely uneasy about this, but I'm not sure whether I should be.
Before people start bringing up general libertarian arguments, note that the question isn't whether this practice should criminalized, but rather whether there's something improper about it that should lead me to decline to participate. What do readers think?
UPDATE: I inadvertently omitted an important fact, though fortunately many commenters filled this in -- this drive lasts a day or two, as does the potential immunity from being called on.
Talk about your tired Socialism:
Would you believe Israeli Defense Minister and former socialist labor leader Amir Peretz criticizing a wealthy citizen for being charitable because it's the job of the state, and only the state, to help individuals who need it? Sheesh!
Defense Minister Amir Peretz on Thursday blasted business tycoon Arkady Gaydamak for financing a free weekend in Eilat for 800 residents of the rocket-battered western Negev town of Sderot.
"The state of Israel does not allow rich men and philanthropists to gain control from the distress of citizens," said Peretz. "This phenomenon cannot continue. We will prepare an organized and established plan to alleviate these residents so they will not need to knock on the doors of philanthropists."
One thing I've noticed in my frequent contacts with Israel and Israelis (being married to an Israeli) is that the Israeli state managed to severely damage the philanthropic impulse that once dominated Jewish life. A combination of statism taught in public schools, combined with the prevalent (and understandable) idea that one is owed something by the state after years and years of military service, has led many Israelis to conclude, completely contrary to Jewish tradition, that charity and volunteerism is for suckers. You can see how the attitude of folks like Peretz doesn't exactly help.
Related Posts (on one page):
- More on Milton Friedman and Israel:
- Milton Friedman on Israel and Jewish Support for Socialism:
- Talk about your tired Socialism:
Friedman Obituary:
The New York Times's obituary for Milton Friedman is here. Thanks to Ramza for the link.
Milton Friedman, RIP:
As numerous commentators will point out today, Milton Friedman, who just passed away, was probably one of the two most influential economists of the last century, along with Keynes. Along with F.A. Hayek, Friedman also played a key role in rescuing libertarian and classical liberal political thought from the intellectual oblivion that threatened to engulf it in the period from roughly 1932 to the late 60s. Without Friedman and the scholars he influenced, it is possible that big government conservatism would have become the only intellectually respectable alternative to the left in the wake of the Great Depression and World War II.
In addition to his more technical scholarship in economics, Friedman also invented an impressive range of public policy proposals, many of which remain relevant today. For example, his 1955 essay "The Role of Government in Education" introduced the idea of school vouchers, which recent studies show provide far greater benefits to poor and minority students than any other potential education policy reforms. Friedman was also a longtime proponent of the volunteer military on both economic and individual rights grounds. The abolition of the draft in 1971 was partially a result of his advocacy and its influence on political conservatives (most of whom previously were inclined to support conscription). Other influential Friedman policy ideas include the negative income tax (on which today's earned income tax credit is partly based), and - of course -the monetary rule. Somewhat unfortunately, Friedman (at that time still a left-winger) also invented the idea of income tax withholding while working as an economist for the the Treasury Department during World War II. Although Friedman intended it to be a temporary wartime measure, it soon turned into a permanent expansion of government power - a result that the later, libertarian Friedman would surely have predicted:)!
On a more personal note, reading Friedman's book Capitalism and Freedom when I was 14 (recommended by my father) was one of the key influences that led me to become a libertarian. Along with Friedman's later book Free to Choose, it remains the best introduction to libertarianism written for a general audience. Even 45 years after initial publication, it is still highly relevant, with very few sections that today seem dated.
Related Posts (on one page):
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Today Seems To Be State Constitutional Decision Excerpt Day:
From Beebe v. State, 6 Ind. 501 (1855), which struck down a law that banned the manufacturing of alcohol but excepted specially licensed manufacturing for distribution to the government for medical purposes (paragraph breaks added):
And we may as well remark here as anywhere, that if the manufacture and sale of these articles are proper to be carried on in the state for any purpose, it is not competent for the government to take the business from the people and monopolize it.
The government can not turn druggist and become the sole dealer in medicines in the state; and why? Because the business was, at and before the organization of the government, and is properly at all times, a private pursuit of the people, as much so as the manufacture and sale of brooms, tobacco, clothes, and the dealing in tea, coffee and rice, and the raising of potatoes; and the government was organized to protect the people in such pursuits from the depredations of powerful and lawless individuals, the barons of the middle ages, whom they were too weak to resist, single-handed, by force; and for the government now to seize upon those pursuits is subversive of the very object for which it was created, and is inconsistent with the right of private property in, and pursuits by, the citizen. "A government is guilty of an invasion upon the faculties of industry possessed by individuals, when it appropriates to itself a particular branch of industry, the business of exchange and brokerage for example; or when it sells the exclusive privilege of conducting it." Say's Political Economy, note to p. 134.
There are undertakings of a public character, such as the making of public highways, providing a uniform currency, &c., that a single individual has not power to accomplish, and which government must therefore prosecute: but they are not the ordinary pursuits of the private citizen. These, certainly, as the general rule, and we are not now prepared to name an exception, the government can not engage in. This is all we shall here say upon this point. Time and space forbid that we should elaborate all that arise in the case.
Another State Constitutional Decision:
This is from Herman v. State, 8 Ind. 545 (1855), a one-judge decision issued by a state supreme court judge considering a petition for a writ of habeas corpus. Herman was one of the state court decisions that held unconstitutional state alcohol prohibition laws, though other cases in other states upheld them. I have added the paragraph breaks.
[T]he right of liberty and pursuing happiness secured by the [Indiana] constitution, embraces the right, in each compos mentis individual, of selecting what he will eat and drink, in short, his beverages, so far as he may be capable of producing them, or they may be within his reach, and that the legislature cannot take away that right by direct enactment. If the constitution does not secure this right to the people, it secures nothing of value.
If the people are subject to be controlled by the legislature in the matter of their beverages, so they are as to their articles of dress, and in their hours of sleeping and waking. And if the people are incompetent to select their own beverages, they are also incompetent to determine anything in relation to their living, and should be placed at once in a state of pupilage to a set of government sumptuary officers; eulogies upon the dignity of human nature should cease; and the doctrine of the competency of the people for self-government be declared a deluding rhetorical flourish.
If the government can prohibit any practice it pleases, it can prohibit the drinking of cold water. Can it do that? If not, why not? If we are right in this, that the constitution restrains the legislature from passing a law regulating the diet of the people, a sumptuary law, (for that under consideration is such, no matter whether its object be morals or economy, or both,) then the legislature cannot prohibit the manufacture and sale, for use as a beverage, of ale, porter, beer, &c., and cannot declare those manufactured, kept and sold for that purpose, a nuisance, if such is the use to which those articles are put by the people....
We think the constitution furnishes the protection [in this case]. If it does not in this particular, it does, as we have said, as to nothing of any importance, and tea, coffee, tobacco, corn-bread, ham and eggs, may next be placed under the ban. The very extent to which a concession of the power in this case would carry its exercise, shows it cannot exist.
I do not vouch for the quality of this as a constitutional assertion, nor aim to discredit it -- here I only quote it as interesting rhetoric.
Now There's a Ringing Defense of Self-Defense:
From Aldrich v. Wright, 53 N.H. 398 (1873) (paragraph breaks added):
Higher and earlier in its origin than the constitution or the common law, not superseded by those temporal and finite systems, but sustained and enforced by their declaration and sanction of the highest, primary, eternal, and infinite law of nature the right of defence cannot be prescribed within the limits of a narrow technical rule. It is an original and comprehensive prerogative, necessarily ascertained and defined by natural reason. It is not established by any fallible authority, nor measured by any precedent, nor restricted by any arbitrary dogma.
Long upheld by the common law, it has, under the administration of that law, theoretically been what it was before; and now, reinforced by a constitutional guaranty, it is what it has always been. The authorities of the common law show what it has been held to be by men whose opinions are entitled to great consideration. If any discrepancy should be found in the definitions of it given by common-law precedent and by natural reason, the latter must prevail, because the right is explicitly asserted in the bill of rights as a natural right, and not as one defined by common-law authorities.
The New Hampshire Constitution provides (and provided at the time), "All men have certain natural, essential, and inherent rights, among which are, the enjoying and defending life and liberty, acquiring, possessing, and protecting property; and, in a word, of seeking and obtaining happiness."
Alabama Constitution, Article I, § 35:
"That the sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty, and property, and when the government assumes other functions it is usurpation and oppression." Says so right there, in the constitution.
Amicus Brief in Forthcoming Supreme Court First Amendment Case:
My Mayer Brown Rowe & Maw colleague Don Falk and I just filed an amicus brief on behalf of the American Legislative Exchange Council in Davenport v. Washington Education Association, which the Court will be hearing soon. The case is quite interesting, and while our brief is intentionally short and narrow, I hope it will be helpful.
Related Posts (on one page):
- Restriction on Union's Political Use of Coerced Fees from Non-Members:
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Milton Friedman, 94, Champion of Liberty:
I've just learned that Milton Friedman died today. He was, without question, one of the twentieth century's greatest champions of liberty. The debt of intellectual gratitude that I, along with so many others, owe him, is simply immense. Without realizing it at the time, I virtually grew up on Friedman, as my dad's self-tutoring in economics owed a great deal to his weekly Newsweek columns. I first read Friedman myself when I was in college, and his influence on me was, and remains, profound. Every so often I go back and read Capitalism and Freedom and am amazed at how many important insights that little book contained. In hindsight, my work on race and economic regulation during the Lochner era is a direct outgrowth of reading Capitalism and Freedom, as I told Friedman many years ago. I did have the good fortune to meet him once, and beyond his great intellectual power, and his tremendous positive influence on the world, he (unlike many other notable libertarians of the 20th century) was an absolute mensch.
My condolences to the Friedman family, and to all who loved and admired him.
UPDATE: One more thing about Friedman's importance: in the 1960s and '70s, believing in free market economics left one vulnerable to being considered a nutjob. But Friedman, with his genial manners and incredibly strong academic credentials provided an incredibly important antidote to such calumny. Even today, when acquaintances of my father suggest that libertarian ideas are the preserves of "nuts," he responds, "do you think Milton Friedman is nuts?" And no one ever had the guts to suggest that Milton Friedman was nuts. That is to say, Friedman provided libertarian ideas generally, and economic ideas in particular, with a level of intellectual respectability that I'm quite certain gave many scholars, among others, of a later generation the fortitude to pursue truth as they understood it.
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Massachusetts v. EPA Event:
Massachusetts v. EPA is easily the most important environmental case before the Supreme Court in several years. The primary issues are whether the Environmental Protection Agency has the authority to regulate vehicular emissions of greenhouse gases under the Clean Air Act and, if so, whether it properly denied petitions asking the agency to do just that. The case also presents an interesting standing question, and will provide an important indication of how the Roberts court will treat innovative standing claims. The oral argument is scheduled for the end of the month.
I participated in an amicus curiae brief with other law professors and the Cato Institute (which should soon be available here), and I plan to blog a fair amount on the case in the weeks ahead. Next Tuesday I will also be speaking on a panel discussing the case at the American Enterprise Institute in Washington, D.C. Also on the panel are Georgetown's Lisa Heinzerling (who worked for the petitioners in the case), Michigan's Barry Rabe, and Ed Warren of Kirkland & Ellis. Event details and registration info are here. The merits briefs of the parties and many (though not all) of the amici are available here.
Student Freedom and Academic Honesty:
I hope to post a bit more about the Missouri State University case, student freedom, and the compelled speech doctrine. But right now, I wanted to raise a separate question that I hadn't seen much covered in the news accounts of the story.
The student alleged -- and it appears that the university president called the allegations in the complaint "pretty much accurate" -- that a professor had tried to require that students sign a letter to the legislature promoting equal treatment for homosexuals in foster parenting and adoption. I think that's a violation of the student's academic freedom rights and First Amendment rights.
But isn't it also dishonest? Letters to the legislature are generally understood to be the opinion of the signers (except in certain well-understood circumstances, such as if the letter is signed by an agent -- such as a lawyer or a lobbyist -- on behalf of the people or organizations that the agent represents). If I send a letter with twenty people's signatures on it, I'm saying that the letter represents the people's views. The whole point of having the twenty signatures would be to suggest to readers that this is a view that many people hold, and that legislatures should pay special attention to this view. (A letter may also be intended to persuade through the force of its reasoning rather than through the number of its signatories, but if that were the only purpose, there'd be no need for any signatures, much less for many.)
Obviously, if I forged someone's name on the letter, I'd be lying to the legislature. Likewise, I'd be lying to the legislature (and not just to the signers) if I'd told the signers that they were signing one letter, but in reality they were signing something else -- I'd be misrepresenting to the legislature what the signers' beliefs actually were.
But I think that I'd be acting dishonestly even if I simply required (as a condition of success in a class or success on the job) that people sign the letter: Their signatures would be there not necessarily because they believe in what the letter says, but because I coerced them into signing it. (The same would be true if I bribed them into signing the letter.) Of course, there wouldn't be any dishonesty if the letter expressly said "We were required to sign this letter as a class project," but I rather doubt that this happened, since that would have defeated the purpose of sending a letter to the legislature. (The complaint alleges not just that the students had to write the letter as an assignment, but that the class was to write the letter, each student would sign it, and the letter would then be sent to the legislature on MSU letterhead.)
Now naturally there are borderline cases, for instance if I don't require people to sign the letter, but urge them to do so in ways that might make them feel that they ought to sign to get benefits (or avoid harms) from me in the future. But as I understand the allegations in the complaint, the instructor's instructions weren't on the borderline: The instructor allegedly made this part of a class assignment. If things had gone as the instructor had planned, the legislature would have gotten a letter purporting to express the signers' views -- without being told that the signers were required to state someone else's views, rather than genuinely stating their own.
So it seems to me that, if indeed these allegations are "pretty much accurate," the instructor wasn't just planning to violate the student's academic freedom rights. The instructor was also planning to do something that violate his duty of honesty, in implicitly representing to the legislature that the letter's signers believed its contents, without revealing that the signers were in reality required to sign.
Related Posts (on one page):
- Student Freedom and Academic Honesty:
- Interesting University Student Freedom Case:
DOE Complaint Alleging Bias In Admissions Against Asian Students at Princeton
It will be interesting to follow this one. I remember many years ago reading an article in one of the newsweeklies (that I wished I had saved, but didn't), that contained a couple of startling bits of information. One was a quote from an official at one of the U.C. schools, I think it was Berkeley, protesting that "if we admitted students just based on their academic credentials, we'd wind up with 80% Jewish and Asian freshmen" (horrors!), or words to that effect (the 80% figure, along with the blatant acknowledgment that it would be problematic to have a class that's "too Jewish" and "too Asian" stuck in my mind). The other was that several Asian-American parents a year (this was in the 1980s) threatened to sue the U.C. system over discrimination in admissions, and the response of the system was to quietly admit these students to avoid litigation.
Anyway, here's the story:
Yale freshman Jian Li has filed a federal civil rights complaint against Princeton for rejecting his application for admission, claiming the University discriminated against him because he is Asian.
The complaint, which was filed with the U.S. Department of Education's Office for Civil Rights on Oct. 25, alleges that the University's admissions procedures are biased because they advantage other minority groups, namely African-Americans and Hispanics, legacy applicants and athletes at the expense of Asian-American applicants.
"We've been notified of the complaint and asked to provide information to the Office of Civil Rights, and the University will provide the Office of Civil Rights with the information that it has requested," University spokeswoman Cass Cliatt '96 said yesterday. "But I will say that we do not believe that the case has merit."
The case, first reported this weekend by The Wall Street Journal, injects new life into a longstanding debate surrounding affirmative action and whether race can or should be a factor in college admissions. Li's minority status adds a new twist to the story, however, since previous complaints about universities' racial preference policies have been filed by white students alleging bias.
Li cites a recent study conducted by two Princeton professors as evidence for his case. The study, published in June 2005, concluded that removing consideration of race would have little effect on white students, but that Asian students would fill nearly four out of every five places in admitted classes that are currently taken by African-American or Hispanic students. ...
Princeton maintains that its admission policies do not discriminate against Asian-American or members of any other race. "We treat each application individually and we do not discriminate on the base of race or national origin," Cliatt said. "To the contrary, we seek to enroll and do enroll classes that are diverse by a multitude of measures."
UPDATE: FWIW, my own view, expressed quite explicitly in You Can't Say That!, is that private universities have an expressive association right to engage in affirmative action preferences, so long as they defend such preferences as a part of an attempt to educate students in a pro-"diversity" message. I've reprinted the relevant excerpt below, for those who are interested. I haven't thought about to what extent my argument is mooted by the FAIR case, so critiques on that basis may be justified.
(show)
Interesting University Student Freedom Case:
May a social work professor require that students sign a letter to the state legislature promoting equal treatment for homosexuals in foster parenting and adoption? That's what the Alliance Defense Fund alleged recently happened at Missouri State University; eventually, the requirement was canceled, apparently partly because of the student's objection — but the student's objection allegedly led to a disciplinary hearing in which she was questioned about her religious beliefs, and was told that her beliefs conflicted with the National Association of Social Workers Code of Ethics that the student had been required to sign as a condition of entering the school.
The student was then allegedly required to write a paper about "the difference between personal and professional beliefs and how she would 'lessen the gap' between these two beliefs. In the paper, she was also required to "state that she would not discriminate against men and women engaged in homosexual behavior, that she would be willing to place children in homosexual adoptive homes, and that she would abide by the NASW Code of Ethics and the School of Social Work's SEF." This was an obligation imposed on her but not on other students, apparently because of her protests against the requirement of signing the letter.
A Springfield News-Leader article reports that "The university's investigation determined that the allegations made in the lawsuit were 'pretty much accurate,' [MSU President Michael] Nietzel said." Here's what Missouri State University has to say:
Missouri State University today [Nov. 8, 2006] signed an out-of-court agreement with the Alliance Defense Fund, thus ending the lawsuit filed against the university by Emily Brooker....According to the terms of the settlement, Missouri State agrees to the following:
* clear Brooker’s official record of the Social Work Level 3 review referenced in the complaint.
* pay Brooker an amount of $9,000 and she will be responsible for her own legal fees.
* waive academic fees at Missouri State University, or in lieu thereof, reimburse an amount equal to two years of degree work toward a Master of Social Work degree (or a graduate degree of equivalent length) at any public institution in the state, which is estimated at approximately $12,000, plus Brooker will receive $3,000 per year in living expense for two years of graduate education.“We acted on these allegations as soon as we became aware of them the afternoon of Oct. 30,” said Missouri State President Michael T. Nietzel. “Although our investigation did not support all of the allegations made in the lawsuit, we were concerned about some of the actions that we did learn about.”
In addition to the terms of the lawsuit, Nietzel also announced that based on the university’s investigation, he believed it was important for the university to take a number of other steps that addressed broader issues. They include the following:
* Nietzel will commission a comprehensive, professionally directed evaluation of the Missouri State Social Work Program. He has asked Provost Belinda McCarthy to identify an outside group of social work education experts who will be charged with this review. “It is important for current and prospective students, for potential employers, and for the faculty and staff in the program to have confidence that the policies, procedures, leadership, and delivery of the program are up to par,” said Nietzel. “The reviewers will have the complete cooperation of the university as they conduct their assessment. We will begin to recruit this external team immediately with the hope that they can visit us and conduct the review in the spring 2007 semester.”
* Dr. Frank G. Kauffman, assistant professor of social work, has voluntarily stepped down from his administrative duties as director of the Master of Social Work Program. In addition, he has been re-assigned to non-classroom duties in the School of Social Work for the remainder of the fall semester. Finally, Kauffman has begun weekly consultations with Associate Provost Chris Craig, which will continue at least through the spring 2007 semester.
* Finally, Nietzel will appoint an ad hoc committee to recommend ways in which the university can better publicize and more effectively implement its policies regarding freedom of speech and expression on campus. “The Declaration of Community Principles and the Statement of Student Rights adopted by Missouri State a number of years ago are very good and powerful statement of rights and responsibilities,” said Nietzel. “And, we have strong and effective grievance policies in place. We need to make sure that all members of the campus community, especially new members, are familiar with the Principles and the policies. When we talk about making sure that a Missouri State education is rigorous, part of that is the recognition that the content, theories, and implications of any number of academic disciplines often engender vigorous debate and can sometimes conflict with personal beliefs. How these controversies and how the inevitable clashes of personal convictions and values are raised and addressed are crucial questions for a university. Ultimately, universities must be responsible for providing an environment that promotes learning and that permits individuals to exchange ideas in honest and civil ways. That is our goal.”
I'll have some things to say about this shortly, but I thought that I'd start by just posting the allegations and the university's reaction.
Related Posts (on one page):
- Student Freedom and Academic Honesty:
- Interesting University Student Freedom Case:
2006 Firearms Law and Second Amendment Symposium
Held at George Mason Law School on October 7, and now available on the web, for your viewing pleasure. The main page of the symposium offers links of hi-fi and lo-fi versions of all the presentations, in Windows Media and Quicktime. My presentation covered the international law basis of the human right to self-defense.
The organizers of the symposium worked earnestly to include a good mix of speakers from the gun control side, but, unfortunately, they refused to attend, even with all expenses paid. In contrast, Saul Cornell of Ohio State appeared at the 2005 symposium, and made a very good presentation.
Why the Wild West Hanged Fewer Intimate Murderers:
My data supports the conclusion that late nineteenth- and early twentieth-century intimate homicide cases in New York and Colorado produced remarkably similar results: “In both states, men who killed intimates risked a murder conviction, while female defendants tended to be acquitted or found guilty of lesser crimes by juries sympathetic to their stories of physical or emotional abuse.” However, New York and Colorado did not take the same approach to punishing male prisoners who had been convicted of intimate murder. The cultural and legal reasons for this divergence are worth exploring. To share my thoughts on the subject, I’ve posted another excerpt from my article, “Intimate Homicide: Gender and Crime Control, 1880-1920,” 77 Univ. Colo. L. Rev. 101 (2006):
. . . New York and Colorado differed dramatically in social and cultural terms in the late nineteenth century, and those differences produced divergent sentencing patterns. Whereas New York sentenced a relatively large number of intimate killers to death as a percentage of its total executions, Colorado did not. Instead, men who killed their paramours, spouses, and relatives in this western state most often received life sentences.
[My] article suggests that the disparity in execution rates for intimate murder in the two states owed much to the slow westward spread of norms of civilized masculinity and distaste for capital punishment. At the end of the nineteenth century and the beginning of the twentieth, Colorado’s eagerness to shed its frontier image helped fuel revulsion toward male defendants who killed their wives, lovers, or other family members. Hence, Colorado juries did not hesitate to convict men of intimate murder. But ideals of male civility were newer and less deeply rooted in this western state than in the northeast. Moreover, by the time Colorado experienced a surge of opposition to the death penalty, New Yorkers once again embraced it with fervor. Thus, in contrast to their east-coast counterparts, Coloradoans proved reluctant to use state-sponsored execution — a form of punishment they increasingly questioned — to exact retribution and deterrence in intimate homicide cases.
Plagued by adult crime, juvenile gangs, and inadequate law enforcement, Denver was a rough and dirty city in the late nineteenth century . . . One might expect that, in this setting, the state would have ordered men convicted of killing their wives, girlfriends, or relatives to swing from the gallows. Yet [between 1880 and 1920] not a single Denver prisoner was legally hanged for intimate homicide, although the state executed eleven people convicted of crimes in the city. Indeed, in the entire state of Colorado, only about eleven percent of all legal executions (four of thirty-seven) involved defendants found guilty of intimate killings. All men, save one, who were convicted of first-degree murder in Denver for killing their lovers, wives, or relatives received life sentences, many of which were commuted to shorter prison terms.
By contrast, New York executed at least seventy-six intimate murderers between 1880 and 1920 — about twenty-five percent of its total executions. And capital punishment in New York County during the same period claimed ninety-one prisoners, more than one-third of whom had killed their paramours, spouses, or other family members . . .
What accounts for the disparity between the New York and Colorado execution rates in intimate murder cases? The most legalistic answer simply looks to the statutes: First-degree murder carried a mandatory death sentence in New York, whereas in Colorado, for most of the period encompassed by [my research], it did not. However, going beyond the statutory explanation, it is possible to identify significant cultural differences between the two states.
As a general matter, the west lagged behind the east in the reception of social and cultural change. The separate spheres ideology — which accorded women the duty of keeping house and inculcating the next generation with religious values, while their husbands sallied forth into the business sphere — remained impracticable on the frontier through the mid-nineteenth century. Pioneer women had to perform a wide range of tasks including physical labor, in order for the family to survive. Although participation in breadwinning may have given frontier wives greater strength, the lack of distinct sex roles was paired with the survival of patriarchal norms that tacitly encouraged men’s use of violence to obtain female submission.
. . . The lack of established structures in the west also gave patriarchy lingering power and legitimacy that it lacked in the northeast. While public law enforcement developed later in New York than is often assumed, western legal institutions were even more ad hoc . . . There was no penitentiary in the Colorado territory until 1871, and as late as 1878, Denver had only one police officer for every 4,166 citizens, compared to New York City’s ratio of one patrolman for every 400 citizens . . . In the absence of a sufficiently large and well-trained police force, the authority of the male household head over his family retained political as well as social importance.
Anti-capital punishment agitation also followed a different chronology in Colorado than it did in New York . . . Colorado death-penalty opponents increased in strength and numbers in the 1890s, after New Yorkers had largely abandoned their agitation.
. . . Coloradoans’ opposition to the death penalty in the late 1800s, combined with the relative youth of social values condemning extreme violence toward frontier women, may account for the fact that the public response to men who killed their intimates was not quite as harsh in Colorado as it was on the east cost. In the late nineteenth century, several eastern states [including New York, considered using] the whipping post to deter wife-beating. The campaign for the corporal punishment of wife-beaters embodied many aspects of the [tough, Wild West image that Theodore Roosevelt and other east-coasters sought to convey at the turn of the century as an antidote to Victorianism’s staid respectability]. It represented a new muscular form of masculinity in which men who failed to protect their women were [to be] beaten, not merely jailed or censured.
. . . Although the whipping post campaign had a few adherents in the western United States, the state of Colorado did not participate as a matter of official law or policy . . . Colorado’s reluctance to use either the whip or the gallows to control intimate violence may have stemmed from its insecure position as a patriarchal, frontier society that sought to earn a more polished reputation [by building theatres, museums, libraries, and churches; expressing disapproval of lynching; and hiding state-sponsored capital punishment behind the walls of the penitentiary]. Until 1870, the state struggled with a gender imbalance that left women outnumbered six to one in Denver . . . When more women started to arrive, Denver faced the delicate task of convincing them that they were coming to a religious, female-friendly community where it would be safe and comfortable to reside. With regard to intimate murders, which occurred despite the civilizing ethos urged by the church and the municipal government, legal authorities weighed two options: they could bow to anti-death penalty forces (thus risking the appearance of being soft on intimate murder), or they could hang the culprits (potentially turning the spotlight on the city’s gendered tensions and dangers). They chose the former . . .
Wednesday, November 15, 2006
Housing Market "Stickiness":
I've continued to follow the Northern Virginia real estate market, as my wife an I are moving back to the area in January after spending two semesters visiting at University of Michigan Law School, and one at Brooklyn Law School. At this point, we're hoping to rent a house or townhouse near the metro in the Ballston/Clarendon area (leads would be welcome!), but I've been watching the sale market as well. Some observations:
(1) Townhouses are coming down in price much faster than are single family houses. A few months ago I mentioned in a blog post about a townhouse community in Alexandria in which houses were selling for almost 600K in late Summer '05, and by Summer '06 were selling in the low 500s. Now, there are three houses for sale in that community between $480 and $490 (e.g., AX6226738, if you are interested) and they are just sitting there. These houses were bought at a previous market trough around 1992 for the low $200s, and the appreciation over fourteen years is starting to look much more reasonable.
(2) Owners of single-family houses seem especially reluctant to reduce their prices. Before we accepted the Brooklyn visit last Spring, we started looking for rentals. There was very little available. Now, there are many, many houses available, as sellers refuse to drop their prices to the going market rate and instead decide to rent them out. Many houses are renting for sums well below the carrying costs for a new owner (not taking appreciation or depreciation of value into account). For example, there is one house that is for sale on Old Dominion Road in Arlington for $750,000, but isfor rent for $2,800 a month. It strikes me that from a purely economic point of view it would pay the owners to drop their price by even $100K and sell the place, rather than get $2,800 a month in rent, but
(3) owners seem to have certain "red lines" that they won't cross as far as pricing goes. One red line is that owners are extremely reluctant to sell their houses for below the property tax assessment. The areas we are interested in do "full value" assessments. These are traditionally a bit below market value, especially in a rising market, and 2006 assessments are based primarily on prices from the Summer of 2005. The Summer of 2005 was the peak of the market, so even with conservative assessments houses many houses should be selling for somewhat below those assessments; and some of them are. But for the most part, if you follow "reduced price" listings, the reductions tend to stop when the price is selling just above the county assessed value. This happens so often that I can't believe it's a mere coincidence, but more likely reflects an emotional judgment by the sellers that they are not going to sell the house for less than it's "worth," as proven by the county assessment. Another red line is that sellers who bought in 2005 will, with rare exceptions, refuse to list the house for less than the price they paid plus about 6%, ensuring that they will more or less break even on the deal. Of course, this only works if the price will actually sell at that price, and it's a rare house in No. Va. (that hasn't been renovated in the meantime) that is worth 6% more than it was in '05. In sum, consistent with the economic literature, loss aversion is quite strong, even when the "loss" is solely on paper, as with long time owners who would rather rent for relative peanuts than sell their house for "only" 2+ times what it was worth six years ago.
Sex, Drugs, and the Patriot Act:
Well, no drugs, actually, but this one does combine sex and the Patriot Act. [BUT SEE UPDATE, which exlains that it really is just about sex.] AFP is reporting, via Drudge:
However, nothing in the story suggests that Persing actually threatened to interfere with, disable, or incapacitate the flight attendant while he was doing his job with intent to endanger his safety. It sounds like Persing was actually quite occupied with other things. And it's unclear what role Sewell had here, at least in a criminal sense.
If any one has a copy of the indictment, send it on.
UPDATE: The indictment is here. As Armen suggests, the AFP story is wrong: the charges aren't being brought under the Patriot Act but rather under 49 U.S.C.A. § 46504:
A couple's ill-concealed sexual play aboard a Southwest Airlines flight from Los Angeles got them charged with violating the Patriot Act, intended for terrorist acts, and could land them in jail for 20 years.This story doesn't seem to add up. The relevant provision of the Patriot Act is 18 U.S.C. 1993(a)(5), which punishes whoever:
According to their indictment, Carl Persing and Dawn Sewell were allegedly snuggling and kissing inappropriately, "making other passengers uncomfortable," when a flight attendant asked them to stop. . . .
On a second warning from the flight attendant, Persing snapped back threatening the flight attendant with "serious consequences" if he did not leave them alone.
The comment was enough to have the couple, both in their early 40s, arrested when the plane reached its destination in Raleigh, North Carolina, and charged with obstructing a flight attendant and with criminal association.
interferes with, disables, or incapacitates any dispatcher, driver, captain, or person while they are employed in dispatching, operating, or maintaining a mass transportation vehicle or ferry, with intent to endanger the safety of any passenger or employee of the mass transportation provider, or with a reckless disregard for the safety of human life.In addition, 18 U.S.C. 1993(a)(8) prohibits "threaten[ing]" to do an act in (a)(5).
However, nothing in the story suggests that Persing actually threatened to interfere with, disable, or incapacitate the flight attendant while he was doing his job with intent to endanger his safety. It sounds like Persing was actually quite occupied with other things. And it's unclear what role Sewell had here, at least in a criminal sense.
If any one has a copy of the indictment, send it on.
UPDATE: The indictment is here. As Armen suggests, the AFP story is wrong: the charges aren't being brought under the Patriot Act but rather under 49 U.S.C.A. § 46504:
An individual on an aircraft in the special aircraft jurisdiction of the United States who, by assaulting or intimidating a flight crew member or flight attendant of the aircraft, interferes with the performance of the duties of the member or attendant or lessens the ability of the member or attendant to perform those duties, or attempts or conspires to do such an act, shall be fined under title 18, imprisoned for not more than 20 years, or both.The Patriot Act did amend this statute: Secton 811(i) of the Patriot Act added the phrase "or attempts or conspires to do such an act." However, the substantive offense that was charged dates back to the 1960s.
Tim Wu, Voice of a Generation:
The very entertaining story is here, and the "I heart Wu" video on You Tube is here. This idea of law professors trying to reach a broader audience seems interesting; I wonder if it will work. Thanks to Howard for the link.
No License to Kill for Men:
The provocation doctrine did not give men carte blanche to kill intimate partners who were unfaithful or who sought to leave the relationship. It did not even offer a successful means of mitigating a murder charge to manslaughter for many male defendants. Today’s post provides an excerpt from, “Intimate Homicide: Gender and Crime Control, 1880-1920,” 77 Univ. Colo. L. Rev. 101 (2006), that captures my argument about the comparatively stern treatment of men charged with murdering female intimates in the late 1800s and early 1900s.
Whereas women charged with murder were treated leniently, men risked not only receiving a guilty verdict, but also being sentenced to substantial prison terms or even executed. The common-law provocation doctrine mitigated the punishment of male defendants whose deadly behavior fell within its narrow parameters, but as both a doctrinal and a cultural matter, it offered a smaller safety net than is often assumed . . .
The condemnation of men’s homicidal attacks on their families or lovers [in the late nineteenth and early twentieth centuries] has no parallel in the current American death-penalty regime. Indeed, whereas the miniscule number of women executed between 1880 and 1920 fits into a broader historical pattern of leniency toward female criminals, the willingness of courts and juries in the late 1800s and early 1900s to convict men of first-degree murder for slaying intimates contrasts starkly with the small fraction of death-sentenced men who committed intimate homicides in the late twentieth century.
Moreover, the pattern of holding men accountable for intimate murder crossed geographical and cultural boundaries. It is evident in the eastern and the western United States from 1880 to 1920. Like their New York City counterparts, Denver prosecutors typically pressed severe charges against men who killed intimates during this time period. Out of my sample of forty-eight cases involving male defendants, the Denver District Attorney’s office charged forty-six men with some kind of murder . . . About sixty percent of [these] male murder defendants in my Denver sample were convicted and punished for committing murder in either the first or the second degree. Voluntary manslaughter verdicts constituted a comparatively rare outcome for men in the Denver cases, whereas first-degree murder convictions were the most common type of case disposition.
. . . Whereas other feminist scholars have criticized the heat-of-passion doctrine for treating intimate killings less severely than a fatal assault by a stranger, my research on the west and the northeast offers little reason to think that juries in those regions tilted the facts in favor of male defendants charged with killing women, or that courts construed provocation categories broadly to overturn men’s convictions. In contrast to some southern states that ‘expanded the notion of provocation to cover a broad range of sexual effrontery’ [quoting Martha Umphrey], Colorado and New York policed male violence by refusing to depart from common-law categories.
. . . Trial judges in Colorado and New York often refused to instruct on provocation because the evidence showed cooling time or other factors precluding the defense as a matter of law. Appellate courts usually affirmed murder convictions in such cases, commenting on the poor fit between the facts and the elements of voluntary manslaughter.
Whereas reformist jurisdictions in the late twentieth century jettisoned provocation categories and cooling-time limitations, courts and juries in the 1800s and early 1900s were willing to execute male defendants who claimed that simmering jealousy, anger, or fear led them to commit homicide. This severity was not gender neutral. Rather, verdicts exonerating women due to their victims’ past violence or romantic inconstancy contrasted with the lack of empathy for similar stories when a man was on trial. Moreover, in distinction to capital sentencing in the post-Furman era, the pain arising from romantic or family strife was generally not considered a mitigating factor that precluded the death penalty in men’s cases.
Unlike modern jurisdictions, including New York, that use the EED [extreme emotional disturbance] doctrine, judges in the late nineteenth and early twentieth centuries refused to recognize an attempt by a wife or girlfriend to leave a man as legally adequate provocation. For example, in People v. Youngs [45 N.E. 460 (N.Y. 1896)], the murder victim separated from her husband and threatened to seek a divorce when she learned that he had given her ‘a private disease.’ He then went to a neighboring house where she and the children were staying and fatally shot her. Affirming the capital conviction, the New York Court of Appeals noted in dicta that the facts showed ‘the absence of all . . . provocation . . . for the commission of the crime.’
. . . Legal doctrine and gender norms [also] negated ‘simmering emotions’ defenses raised by men in a variety of factual scenarios, including infidelity. Mere suspicion of adultery — especially suspicion that grew over a long period of time — was rarely recognized as an adequate basis for a heat-of-passion argument when a man killed his spouse. Thus, in both New York and Colorado, male defendants enraged by suspected infidelity often raised insanity, alibi, or accidental death defenses. Those who did request provocation instructions were frequently thwarted by adverse rulings from the bench.
For example, the Colorado Supreme Court affirmed a refusal to instruct on provocation where the defendant had ‘suspicion, or even knowledge of prior acts of adultery,’ but had not witnessed his estranged wife having sex with another man [quoting Garcia v. People, 171 P. 754, 755 (Colo. 1918)]. New York courts proved almost as rigorous. The case law suggests that a homicide following immediately upon an oral report of infidelity might receive mitigation in New York, but that any lapse of time prevented the defendant from raising a heat-of-passion defense.
As I demonstrate in my University of Colorado Law Review article, "Men who stalked their victims often sought to claim temporary insanity [or alcoholic insanity] to make an end run around the cooling-time doctrine. Yet unlike [women], male defendants could not successfully equate rage with temporary insanity.” Nor were they exculpated when defense attorneys “put on expert witnesses to describe a condition known as delirium tremens, in which the suffer manifests trembling and delusions due to prolonged alcohol abuse."
In addition to presenting empirical data on case outcomes, my article links the harsh attitude of jurors and other legal actors toward men who perpetrated intimate murders with a wide array of cultural forms, including judicial opinions, family conduct manuals, and the public image-creation of political leaders like Theodore Roosevelt. All of these influences associated manliness with protection of the female sex:
In the mid-nineteenth century, influential social values, especially among the middle class, associated manliness with sobriety, industry, and control over the passions. These ideals of male self-restraint came under attack toward the end of the nineteenth century, when American men increasingly were urged to embrace their animal instincts in sports, sex, and battle. Nevertheless, at least up to 1920, the model white man remained protective of women and displayed reverence for their presumptively greater moral purity. He used his aggressive impulses to conquer beasts, other races, and even white male rivals, but he did not use violence against females.
Men who transgressed these prescriptive ideals did not make sympathetic victims when their violent behavior provoked women into lethal responses, nor did they make sympathetic defendants, when their efforts to exert power and control resulted in the violent death of their female intimates.
Tuesday, November 14, 2006
Medical Self-Defense and the Risk that Compensation for Organs Will Drive Away Volunteers:
One of the commenters asks:
Finally, any guess as to how many of those healthy organs donated benevolently will not be available when the pricing game starts? Believe it or not, everyone and their descendents is NOT motivated by money. Look at how many community women stopped volunteering -- the work that truly built American character before the market-inclined came into the game -- once there was some expectation people could be paid for such services. Sure you'll pick up some donors in it for the money; how many of the "volunteers" -- in it for the end result, not the pay -- will you lose?
I had a section in an earlier draft addressing this argument, but I had to cut it for space reasons (though I included a little bit of it in other places). Here's what I said:
Some have also hypothesized a somewhat different altruism effect: that offering money for organs might alienate donors who would give the organs for free, and might therefore decrease (or not substantially increase) the aggregate donor supply. One can imagine some such mechanisms: If some people believe (whether rightly or wrongly) that an organ market is immoral or disgusting, they may refuse to participate. If some people start thinking of the transaction in financial terms, they may conclude that $30,000 is too low a price for parts of their bodies, even if they would have donated the body parts for free.
Likewise, some people might be turned off from the loss of the emotional benefit that accompanies a pure selfless act. Or some people might donate organs under the current system because they seek the emotional reward that comes from doing something that can only be done by the charitably minded. Once organ provision becomes the sort of thing that is routinely done for money, they might no longer be interested in doing it.
Yet while one can imagine such reactions, my sense is that they’d be quite rare. To begin with, only about 1.5% of all U.S. living donor transplants -- in 2005, 89 transplants in total -- are purely unrelated anonymous donations. Even if all these unrelated anonymous donors become alienated by the prospect that others are being compensated for providing organs, and aren’t mollified by the prospect of refusing compensation or donating the compensation to their favorite charity, this will be a very small loss to the organ pool. The remaining 98.5% are either donations to relatives, targeted donations (presumably mostly to acquaintances), or “paired exchange” donations in which the recipient’s relative or acquaintance provides an organ in exchange to the donor’s relative or acquaintance. These donors, I suspect, will care primarily about the welfare of the transplant beneficiary, and won’t refuse to donate just because compensation is offered. The cadaveric organs do often go to strangers. But how likely is it that a next-of-kin who would be willing to donate the decedent’s organs under a pure donation system would instead refuse when offered money (even given the option of declining the money, or sending it to his favorite charity)?
On the other hand, the opposite reaction -- a financial incentive doing what financial incentives usually do, which is stimulated the rewarded conduct -- should, I suspect, sway quite a few people. We see some evidence of this in the supply of eggs to infertile couples: In America, where women routinely get $5000 to $15,000 for such eggs, the eggs are generally available; in England, where the compensation is capped at £250, there is a years-long waiting list; in Australia, where payment for eggs is banned, there is a five-year-long list. We also see plenty of evidence of this in our daily experience with the overwhelming majority of other goods and services, where offering money will get you much better results than asking for charity.
Moreover, the offer of money may easily be presented in ways that harness charitable people’s charitable attitudes. Providing your (or your recently deceased relative’s) kidney for money, after all, saves a person’s life just as much as donating the kidney would; and then, if you have strong charitable impulses, you can just take that money and give it to your church, or your favorite charity.
The recipient is no worse off because you took the money. (Under an organ market system, the cost of the organ would surely be paid by private or government insurance, just as the much greater cost of the other inputs into the transplant -- doctor time, hospital space, pharmaceuticals and surgical supplies -- is now paid.) And if you are charitably minded, you can just take the money and give it to your church, or your favorite charity, or if you prefer some fund that will support organ transplants for the poor. You get to feel good about two things, the saving of a life and the donation of the proceeds, rather than just one.
What’s more, many genuinely altruistic people understandably feel that their charity should begin at home. A father’s death in an accident, which makes the organ donation possible, might at the same time strip away his wife’s and children’s main source of financial support. Getting money for the organs and using it for the children’s benefit will likely seem far more appealing -- even if the mother is generally charitably inclined -- than just giving the organs away.
This leaves one sort of person who might still be turned off, despite the option of declining payment or routing the payment to his favorite cause: someone who is deeply attached to the concept of doing the sort of thing that cannot be done for compensation. Note that this person isn’t the hyper-altruist who just wants to provide an organ to save a stranger’s life; he can still do that if he gets paid. Nor is it the hyper-altruist who just wants to give the organ free; he can still do that by forgoing compensation. Rather, it’s someone who won’t want to save the stranger’s life if such lifesaving is also done by others for compensation.
Yet how common are such people likely to be, compared to those who will see an offer of payment as an incentive? Consider a thought experiment: Imagine a requirement that doctors who do organ transplants do them for free, or not at all. Do we expect that such a requirement would on balance increase the number of doctors willing to perform such operations, since some doctors will be thrilled to do something that can only be done by the charitably minded? Would we say, “Sure, some doctors won’t want to invest their time and effort with no compensation, but think of how many more doctors would want to perform such a public service”? Or would we expect that counting on a combination