Saturday, August 4, 2007Of Earmarks and Bridges:
This does seem like a pretty obvious and important point to make in the wake of the horrible Minnesota tragedy, doesn't it? (Via Glenn). In related news, I see that "The Bridge to Nowhere" now has its own Wikipedia entry. More on that Tenth Circuit adoption decision:
In Finstuen v. Crutcher, the Tenth Circuit held that under the Constutitution’s Full Faith and Credit Clause (FFCC), Oklahoma could not refuse to recognize otherwise valid out-of-state adoptions by same-sex couples. Judge David Ebel (appointed by Reagan) wrote the opinion, joined by Judge Terrence O’Brien (appointed by George W. Bush). Judge Harris Hartz (also appointed by GWB) concurred and dissented in part, and did not reach the constitutional issue. Oklahoma prohibits unmarried couples, gay or straight, from adopting a child as a couple. (One member of the couple may adopt a child as a single person.) But an Oklahoma statute requires the state to recognize and treat foreign adoptions – those from another country or another state — creating a parent-child relationship as though finalized in an Oklahoma court. All the rights and obligations of parents and children in the state apply the same way to adoptions finalized elsewhere. That’s the rule in all 50 states, in fact. There’s one catch, however, in Oklahoma that I have not seen in other state laws. It’s embodied in a recent amendment to the state statute:
Thus, on its face, the statute requires the state to recognize foreign adoptions by unmarried opposite-sex couples, even though such a couple could not adopt in Oklahoma itself. But foreign adoptions by unmarried – or married – same-sex couples are not recognized. The adoption amendment is draconian in its simplicity. It’s not clear, under Oklahoma law, whether the state would recognize either same-sex parent as the legal parent of the child. Thus, same-sex parents traveling through the state could find their legal rights challenged in emergent circumstances. The child could be left “parent-less” in such circumstances, a monstrous result. Similarly, the Oklahoma law could deprive same-sex parents who had adopted out-of-state and then moved to Oklahoma of all legal power to direct their child’s education and medical treatment. I doubt a state child welfare agency, even in Oklahoma, would seize these legally “parent-less” children unless there were some independent reason (e.g., evidence of abuse) to do so, but the law itself provides no answers. Perhaps other equitable and family law doctrines, like de facto parent status, could be invoked to prevent the worst nightmares, but the resulting uncertainty itself could damage the family. From what I’ve read of the debate over the amendment, Oklahoma legislators gave no consideration to these complications. Oklahoma passed the amendment after a gay couple from the state of Washington successfully petitioned the state department of health to re-issue their child’s birth certificate to reflect the fact that they were now the child’s parents. Re-issuance of birth certificates to reflect the names of the new parents is routinely done in adoption cases. The couple adopted the child in Washington, which permits same-sex adoptions, but the child had been born in Oklahoma. The couple wanted the change made because they planned to travel periodically to Oklahoma to visit the child’s biological mother, who still lived there. They did not want state officials, hospitals, or others questioning their parental rights as they traveled through the state, especially in case of an emergency. While the Tenth Circuit ultimately held that these men (and an in-state lesbian couple) lacked standing to challenge Oklahoma’s anti-gay adoption amendment because, it said, their fears were “too speculative,” it held that an out-of-state lesbian couple had standing because the law had already concretely harmed them. The health department had refused to issue them a revised birth certificate. Plus, during an actual emergency, they had been told by an ambulance crew and emergency medical staff that only “the mother” could accompany the child. (These disparate results show, I think, how bizarre the standing doctrine can be: standing law, as this panel applies it, requires parents to wait to challenge the law in federal court until they are denied access to their child in an emergency.) The Tenth Circuit addressed only the FFCC issue, not the Equal Protection and substantive Due Process issues the parents had also raised. The reasoning was fairly straightforward. The FFCC requires states to give full faith and credit “to the public Acts, Records, and judicial Proceedings of every other State.” Art. IV, Sec. 1. The Supreme Court has held that this language applies with full force to the final judgments of sister states. Final adoption orders or decrees are judgments, as Oklahoma conceded, and as such must be recognized under the FFCC. But what of the “public policy exception” to the recognition of another state’s laws? This is the wrinkle in controversies over the effect of the FFCC that has permitted states to argue, for example, that they do not have to recognize same-sex marriages or civil unions validly performed in foreign jurisdictions if they have clearly expressed a contrary public policy in their own statutes or constitutions. Oklahoma has clearly expressed its public policy judgment that it does not want to validate parenting by gay couples just as surely as it has expressed its view that it will not recognize foreign same-sex marriages for any purpose. The Tenth Circuit noted, in response, that there is no “public policy exception” to the “judgments” of other states. Op. at 28. Oklahoma did not contest this conclusion. Since a marriage is not considered a judgment of another state, the public-policy exception applied to foreign gay marriages stands. But Oklahoma argued that requiring it to recognize foreign same-sex adoptions would effectively give foreign jurisdictions control over its own public policy in multiple ways beyond mere recognition itself. The parent-child relationship creates many legal rights and obligations under state law, including the power to make decisions about medical care and education, rights of inheritance, the right to seek child custody and support, and the right to bring a wrongful death lawsuit. If required to recognize foreign same-sex adoptions, the state would then be required to grant the parents and their children the full panoply of parent-child rights as they would any other family. This would give the foreign state control over the effect of its judgment in Oklahoma, argued the state. The Tenth Circuit responded by saying that Oklahoma retains the power to control “the manner in which adoptive relationships should be enforced in Oklahoma and the rights and obligations in Oklahoma flowing from an adoptive relationship.” Op. at 30. The point is that Oklahoma has decided to treat adoptive relationships the same as the relations of natural parents to their children. It cannot, under the FFCC, elect to treat a sub-class of foreign adoptive relationships differently from in-state adoptive relationships. What the court seems to be suggesting, then, is that Oklahoma could decide to create an alternative inheritance regime that treats adopted children differently than natural children (though such a scheme might founder on other constitutional objections). The same would go for medical care, education, and all of the other rights that parents and their children have. What it cannot do is treat adoptive parents the same as natural parents, except for one class of foreign adoptions. The chances are higher than usual that the Tenth Circuit will take the case en banc. It involves the invalidation of a state statute on constitutional grounds, in an area of unusual cultural and legal sensitivity. There will also be arguments that the case could be disposed of on standing or mootness grounds, making the constitutional resolution unnecessary, though I think these arguments are pretty weak. Whatever the Tenth Circuit does, I doubt the Supreme Court would hear the substantive constitutional claims. There is no circuit conflict, and Oklahoma’s law is unique, which means conflicts arising from its law will be small in number and scope for some time to come. Related Posts (on one page):
More on Rep. Jefferson's Papers:
Lyle Denniston has a thorough discussion of the D.C. Circuit's decision here. How Appealing has a round up of news coverage here. Related Posts (on one page):
Does Abstinence Education Do Anything?
A new study in the British Medical Journal confirms prior research indicating that abstinence-only education has no effect, positive or negative, on sexual behavior. As critics have long maintained, this review of available empirical research indicates that abstinence-only education does not prevent teenagers from having sex or reduce the incidence of sexually transmitted diseases. At the same time, and contrary to the claims of some critics, abstinence-only education does not appear to increase the rate of unprotected sexual activity. In other words, whether or not children receive abstinence-only education If the BMJ analysis is correct, it would suggest that the raging political fights over the form and content of sex education in schools are purely ideological, not scientific. Both proponents and opponents of abstinence-only education claim that "science" supports their preferred approach, when the available scientific research suggests there really is not much difference. Here is some BBC coverage of the study, and here is an informative episode of Justice Talking on abstinence education from several weeks back. UPDATE/CORRECTION: As some commenters observed, it is an overstatement to say that this research suggests that no form of sex education can affect sexual behavior. Disorder in the House:
Last night the U.S. House of Representatives unanimously agreed to the formation of a special committee to investigate alleged parliamentary shenanigans that may have altered the outcome of a vote, the Washington Post reports.
Politico.com has lots more here and here. Republicans are also distributing video that, they claim, supports allegations that the vote was "stolen." Of course, when Republicans controlled the House, there were shenanigans as well. Most infamously, a vote was kept open so Tom Delay would twist arms to ensure a victory. As with earmarks, it seems the new boss is much like the old boss. UPDATE: Congressional Quarterly has a particularly thorough account of the vote: The floor confusion arose when, with the tally tied at 214-214, two politically vulnerable Democrats, Nick Lampson of Texas and Harry E. Mitchell of Arizona, went to the well of the chamber to switch their votes to “no.” The buddy system would prevent Democrats who voted “no” from being targeted as the deciding vote in future campaign ads. Moments later, three Cuban-American Republicans from south Florida, Ileana Ros-Lehtinen, Lincoln Diaz-Balart and Mario Diaz-Balart, moved to change their votes to “aye.” Related Posts (on one page):
Dean Dan Polsby Receives St. Gabriel Possenti Society's Medallion of Honor:
Congratulations to George Mason Law School Dean Dan Polsby, who this week was named the recipient of the St. Gabriel Possenti Society's Medallion of Honor as well as the "Noble of the Week" by the Washington Times: Noble: Daniel Polsby, the gun owner's intellectual and recipient of the St. Gabriel Possenti Society's Medallion of Honor. The St. Gabriel Possenti Society is a gun-rights advocacy group named for a heroic Catholic seminarian who single-handedly rescued the town of Isola, Italy, from predatory bandit-soldiers in 1860. St. Gabriel's sharp-shooting forced the intruders to drop their weapons and flee. The society promotes St. Gabriel as the Patron Saint of Handgunners. When announcing the award, Society Chairman John Snyder said of Mr. Polsby: "[He] is the leading academic champion of the individual civil right of law-abiding American citizens to keep and bear arms in the United States today." Mr. Polsby, dean of the George Mason Unversity School of Law, has written some of the most influential articles in support of gun rights. He recently helped lobby to overturn the D.C. gun-ban statute, calling it unconstitutional. For supporting the Second Amendment and the right to bear arms, Daniel Polsby is the Noble of the Week. Friday, August 3, 2007Oklahoma must recognize out-of-state adoptions by same-sex parents:
Tonight the Tenth Circuit, in Finstuen v. Crutcher, held unconstitutional under the Full Faith & Credit Clause an Oklahoma statute barring recognition of adoptions by same-sex couples finalized in another state. States usually recognize adoptions from foreign jurisdictions, but Oklahoma carved out an exception for adoptions by same-sex couples. Said the court:
On the Full Faith & Credit issue, the decision was 2-1; the dissenting judge felt it was not necessary to reach that question. On first glance the opinion appears quite narrow and doesn't affect the state's ability to refuse to recognize same-sex marriages, but I haven't had time to read it carefully. I may have more to say about it tomorrow. Related Posts (on one page):
Names for Inhabitants:
A reader passes along this puzzle:
Any thoughts? I can think of one example -- involving the name for the inhabitants of a country -- that should be pretty obvious, but I can't think of others. Slippery Slopes in 10 Pages:
Ward Farnsworth's The Legal Analyst includes a chapter on slippery slopes that's generally based on my Mechanisms of the Slippery Slope article. As is usually the case with Ward's work, it's extremely well written, and I can't imagine a better 10 pages on the subject. If you don't want to read my whole law review article (and who really wants to read whole law review articles?), read Ward's 10 pages instead -- many thanks to Ward and his publisher for letting me put the chapter on my site -- or, better yet, read his whole book. Related Posts (on one page): S&P 500 has Second Worst Day Since Early 2003.--
According to final figures on Friday, the S&P 500 ended down 2.66%, edging out last Thursday's 2.64% drop for the second worst day in the S&P 500 since early 2003. The NASDAQ was down 2.51%; the Dow was down "only" 2.09%. That means that for the year the S&P 500 is up only 1%, while the NASDAQ is up 4%, and the Dow is up 5.7%. Looking back, the pattern of big down days over the last two weeks happens more often near market bottoms than market tops. In the past, when such a pattern has occurred after big runups in the market, sometimes it signals a temporary top (1987). Sometimes it signals a buying opportunity in an up market (1998). Some commentators on TV have pushed for Fed Chair Bernanke to take a page from Greenspan's response to a similar mini-crisis in 1998, meeting with experts to assess the problems and assuring the markets that liquidity would be available if needed. As it now stands, the Fed still has an official slight bias toward fighting inflation by leaning toward tightening, though in action it is neutral. Most expect the Fed at least to go neutral officially next week, perhaps to a stated bias toward easing, though to do essentially nothing significant about interest rates in response to the spreading credit crunch. Related Posts (on one page): What I tell you three times is true:
I recall hearing an expression something along the lines of "Once you say something three times in Washington, it's true." Has anyone ever heard that, and do you know where it (or something like it) comes from? FISA Legislation Update:
Marty Lederman has the latest here.
Surprisingly Good Food--Wyman's Canned Bluberries:
These are available at Whole Foods and maybe elsewhere. They are canned in watr, not syrup. I love berries, and usually dislike canned fruit of any kind. But chill these puppies, and they taste better than fresh (they are also a different variety than you get fresh). They also come frozen, but I haven't tried those. CNBC's Jim Cramer Goes Ballistic: "WE HAVE ARMAGEDDON!"
On CNBC at 2:46pm ET, Jim Cramer is screaming about the Fed right now: "WE HAVE ARMAGEDDON!" UPDATE (2:56pm): While I was writing a very long post suggesting in a quiet and indirect way that I can't understand why the Fed is not providing credit to the market, Jim Cramer on CNBC's "Stop Trading" segment started screaming with a passion that I've never seen even from him. He screamed over and over that the Fed has "NO IDEA" what's going on, and added that its behavior is "SHAMEFUL." Cramer said that the Fed should "open the window" and cut rates "TODAY"! Just because the Fed didn't engineer this credit crunch, as Fed Chairs Volcker and Greenspan did in 1987, doeesn't mean that the Fed shouldn't provide the liquidity needed to ease the pressure on defaulting homeowners and on financial institutions that are getting killed from the drying up of corporate credit. BTW, when Cramer started his tirade against the Fed the Dow was down about 100 points, which was less than 1%. Related Posts (on one page):
Restraining Order Issued Against Pedophile Blogger:
A court has just issued a restraining order — with no appearance by the defendant — that, among other things, (1) bars McClellan from "follow[ing], ... keep[ing] under surveillance, or loiter[ing] with or around any minor child," (2) bars McClellan from contacting, "photograph[ing], videotap[ing], post[ing] on internet, or otherwise record[ing] any image of a minor child without parent's or guardian's written consent," (3) bars McClellan from "loiter[ing] where minor children congregate in, including but not limited to schools, parks, playgrounds, bowling alleys," and (4) requires McClellan to "stay at least ... 10 yards away from" "any minor child." The court reports that the order is "based on stalking" and "based on a credible threat of violence and harm to minor children." The order is ambiguous on whether McClellan is also barred from having guns — those provisions on the order form are crossed out in one place but not in another; I take it the court's intent was not to apply them at all. I don't know what evidence was introduced at the hearing, so it's possible that there was some evidence that McClellan had actually molested children, or was planning to do so. If there was, and the evidence was sufficiently strong, then a temporary order of some sort would be constitutional — a person can, after all, be arrested and jailed just on a finding of probable cause to believe he has committed a crime. But if the only evidence is what we've seen in the press, which is chiefly that McClellan admits to a sexual attraction to children, believes that sex with children is proper, claims not to have molested children or engaged in sexual touching with them but has apparently said he had "hugged" them, and has in the past photographed children and posted their photos on the Internet with text praising their appeal and promoting the propriety of sex with children, then it seems to me that the order is unconstitutional. You can't restrict people's movement, and their ability to take photographs in public places (even of children, something that is routinely done by the media and others and that is presumptively protected by the First Amendment), simply because of their ideology and expressed sexual desire, even when one understandably worries that at some point this ideology plus desire will turn into actual molestation. The premise of our legal system is that restraints on where you can go on in public (and broader freedom, including the freedom to photograph and to post photographs) can only be instituted after some showing of concrete evidence that someone has committed or is planning to commit a crime. The police can't arrest people just because they think they might be dangerous, or because they have expressed support for criminal activity; the courts can't restrict their liberty of movement on those grounds. The controversy about no-fly lists that are based on mere suspicion illustrates this concern, and the outer boundaries of even national security powers; but even the no-fly lists don't go so far as to make it a crime for someone to go to certain places, or be within 10 yards of any child. Without doubt this general prohibition on prophylactic police and court action poses some dangers. I suspect there are lots of people out there whom the local police understandably suspect of some crime, and who may in fact victimize someone before a crime can be proven. But it seems to me that on balance waiting until there's concrete evidence that a crime has been committed, or is at least being planned — dangerous as such waiting may be — is less dangerous than letting courts restrain movement simply based on people's even repugnant ideologies and desires. Related Posts (on one page):
So, When the Buckled Girder Lets Down the Grinding Span:
The Minneapolis bridge disaster reminded me of one of my favorite poems, Kipling's Hymn of the Breaking Strain. (It's of course ultimately not really about bridges, which is why I only said "reminded me.") Here is the opening stanza: The careful text-books measure Credit Crunch Continues.
The Wall Street Journal is today reporting that Wells Fargo, a major mortgage lender, is raising the interest it charges on prime jumbo home mortgages by a whopping 1.125%. The Cerberus deal to buy Chrysler went through today, but they were unable to sell the corporate debt to fund the deal at prices that they were willing to pay (so the bank bridge loans, intended to be temporary, continue in force). It was this news of problems in the financing for the Cerberus deal that triggered last Thursday’s sell-off in the US stock market, the second largest down day in the last 4 years in a week that was the worst for the stock market in at least 4 years. Standard & Poor’s today lowered its outlook on brokerage Bear Stearns to negative:
Among the problems for Bear Stearns are lawsuits alleging that the brokerage misled investors to induce them to stay in the hedge funds when problems first became public. CNBC reporters have been discussing the difficulty of finding money for new deals, though most deals previously in the works are still going through. In a flight to quality, investors in the last two weeks are buying Treasury notes, which has led to those interest rates moving sharply lower. Usually, this leads to lower mortgage interest rates, but mortgage interest rates are going higher because of the difficulty of repackaging those loans and selling them as mortgage-backed securities. This would tend to lengthen the current slump in the housing market, which most analysts are now saying should probably last at least through 2008. On Wells Fargo’s huge jump in interest rates on jumbo home mortgages, the Wall Street Journal reports:
I’ll have more thoughts on Federal Reserve policy in a later post. Related Posts (on one page): Careful Criticizing the Coach:
Four varsity football players were dismissed from the Jefferson County (Tennessee) high school football team after organizing a petition against their coach. The students sued, alleging the punishment violated their First Amendment rights. The District Court denied the defendants' motion for summary judgment on the grounds of qualified immunity. Today, the U.S. Court of Appeals for the Sixth Circuit reversed the district court. Of interest, the majority opinion, written by district court judge Zatkoff, sitting by designation and joined by Judge Siler, uses a scene from the movie Hoosiers to analyze the First Amendment question, even though the movie takes place before the Supreme Court's controlling decision in Tinker v. Des Moines Independent Community School District. Assuming that Tinker was in force at the time of Hoosiers, would the players have a First Amendment claim against Coach Dale? That hypothetical case is not before the Court, but the instant case, although it contains different facts, presents a similar question: what is the proper balance between a student athlete’s First Amendment rights and a coach’s need to maintain order and discipline?Applying Tinker, and recognizing that "students do not have a general constitutional right to participate in extracurricular athletics" and that "student athletes are subject to more restrictions than the student body at large," the majority concluded that the defendants were entitled to qualified immunity because their conduct in dismissing the players did not violate the First Amendment. It was reasonable for Defendants to forecast that Plaintiffs’ petition would undermine [the coach's] authority and sow disunity on the football team. Thus, there was no constitutional violation in Plaintiffs’ dismissal from the team. Tinker does not require teachers to surrender control of the classroom to students, and it does not require coaches to surrender control of the team to players.Judge Gilman wrote a separate opinion, concurring in the judgment, as he believed there was a constitutional violation, but that the defendants were nonetheless entitled to qualified immunity. Contrary to the analysis in the lead opinion, I believe that the writing in question constitutes protected speech under Tinker and that the defendants have failed to carry their burden of “demonstrat[ing] any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities.” See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969) (“In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”). The student-athletes in the present case, in my opinion, have thus properly asserted a constitutional violation. Honoring Dartmouth's 1891 Agreement:
As many readers know, Dartmouth is unique in that since 1891 it has permitted alumni to elect half of the non-ex officio members of the Board of Trustees as Alumni Trustees. The other half are appointed by the Board as Charter Trustees. Two seats are designated as ex officio seats in the College Charter, one for the president of the College and one for New Hampshire's Governor. Today there are 18 members on the Board--8 Alumni Trustees, 8 Charter Trustees, and the 2 ex officio members. This right of the alumni to elect half the Board was the result of a bargain struck between alumni and the College in 1891 and memorialized in a set of resolutions adopted by the Board that traditionally have been referred to as the 1891 Agreement. This tradition of parity has been honored for 116 years--nearly half of Dartmouth's existence. In recent communications to alumni, however, Chairman of the Board Ed Haldeman questioned the validity of this longstanding agreement. I respond to Chairman Haldeman's arguments in an editorial column published in today's edition of The Dartmouth. The published text of the column is available here. Read the 1891 Agreement for yourself here. D.C. Circuit Rules for Rep. Jefferson:
This morning a three judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled Rep. William Jefferson's challenge to the FBI's seizure of material from his office. The opinion for the Court, written by Judge Rogers and joined by Judge Ginsburg summarizes:
Judge Henderson filed a separate opinion concurring in the judgment, which begins:
I hope to have more on this decision later today. Related Posts (on one page):
Cascades.
You have job interviews with two employers and are turned down in both of them. At the next one you are asked if you have had any prior interviews. You recount your unhappy recent history and the employer concludes that the two prior rejections probably meant something. This helps him decide to pass on you. The process continues and accelerates from there; the next interviewer finds you have three rejections and has even more cause for concern than the previous one. This is an example of an information cascade. Notice that all the interviewers might be acting rationally. If you feel uncertain about something, it might make sense to defer to others who have already decided; maybe they knew more than you do. And if the next player likewise has no firm basis for decision it might be entirely reasonable for him to see the growing agreement, find it impressive, and go along. But whether reasonable or not, the result is that the belief gains a kind of empty momentum: there is growth in its acceptance but not in its likelihood of being true, which hasn’t changed and may be small. There are a number of implications for law. One involves the hazards of sequential decisionmaking. When witnesses are asked what they saw, they say different things alone than if they first hear how others describe the events; there are various ways to interpret this, one of which is that it’s a kind of cascade. That is why the federal guidelines say that witnesses to crimes should be separated and shouldn’t talk to each other. A similar problem arises when jurors vote on a case. Should they vote simultaneously or sequentially? A simultaneous vote has the advantage of avoiding cascades: we don’t want the third juror swayed by what the first two say, then the fourth juror swayed by what the first three say, and so on. So the choice of procedure might matter; oddly, though, we leave it up to each jury to decide what to do. The same general question arises again when judges vote. On the United States Supreme Court the Justices vote openly and one at a time, starting with the Chief Justice and then descending to the most junior member, who already knows how all the other Justices voted when his turn arrives -- suggesting a danger of cascades. The risk of cascades repeats on a larger scale in elections. Think about cascades created by early primaries, for example, or by public opinion polls (which is why some countries ban them in the days or weeks before an election). Might a cascade also arise when courts in different jurisdictions are presented with the same question, one after the other? There are other interesting kinds of cascades, too, but this entry is getting long; so if you’d like to read about them (or more about the kind just described), they are the subject of one of the sample chapters available at the web site. This post wraps up my guest-blogging for the week. I hope these discussions have piqued the interest of some of you in The Legal Analyst. The sample chapter just mentioned, and the others at the web site, should give you a clearer idea of whether the book is for you (they go into more detail than I’ve had space to do here); and there will soon be a fourth sample chapter available at Eugene’s own site — the chapter on slippery slopes, which, as I mentioned before, I co-wrote with Eugene but is really just a short adaptation of his classic article on the subject. Thanks so much to Eugene and the other writers at his site for having me here, and to the many readers who have sent me suggestions or posted them to the comment threads. Surprisingly Good Food--McDonald's Iced Coffee:
Okay, I'm not sure this qualifies as a "food," but this is really excellent iced coffee, and at an unbeatable price. And I don't even like coffee much! "But Your Honor, the Spam Filter Ate Your Message":
That excuse doesn't fly, says Pace v. United Servs. Automobile Ass'n, 2007 WL 2022059 (D. Colo. July 9). The plaintiff's lawyers didn't show up to a settlement conference, because the spam filter caught the court's e-mail setting the conference date. The magistrate judge ordered the lawyers "to pay to defendant's reasonable and necessary attorney fees and expenses it incurred as a result of attending the scheduled settlement conference ... and for attending and participating in the hearings before this court [about the demand for fees]." The judge's reasoning:
Failure to perform this task makes the lawyers' failure to appear negligent and thus unjustified and sanctionable. Surprisingly Good Food, First of a Series:
Costco pizza. As a native New York pizza snob, I wouldn't call this "good pizza," but it is better than the vast majority of pizza available in the D.C. area. (Vapiano's, a European chain that just opened an outlet in Ballston, has the best pizza I've had in the area). Thursday, August 2, 2007"Make Sure That There Is Nothing in the Religious Upbringing or Teaching That the Minor Child Is Exposed to That Can Be Considered Homophobic":
A commenter responding to my hypo in which a judge denied a parent custody because the parent's teaching of traditionalist Christianity was against the child's best interests suggested that the hypo was implausible, because Christian beliefs are so widespread in the America. Well, it was meant to be pretty extreme, though I suspect that in a few jurisdictions traditionalist Christian beliefs about sexual morality are in the minority. But let me remind people of this story from 2003 and 2004, though one that arose in the special case of a parent's Christian teachings being implicitly critical of the other parent. First, the original news story from November 2003:
Now, an excerpt from the July 2004 appellate opinion reversing the order, but leaving open the possibility that it could be reimposed:
So the restriction was lifted -- but if the trial court judge concludes that without the restriction on anti-homosexual comments, "the child's emotional development [would be] significantly impaired," then the restriction could be reimposed. The Court of Appeals also upheld the trial judge's decision to award joint custody to the mother and the ex-partner, though the ex-partner hadn't adopted the child. The court's decision was based on the "psychological parent" doctrine: Once someone has raised a child for many years, from near infancy, with the legal parent's permission, it's in the child's best interest that the resulting psychological bond -- which is much more important to the child than any legal or biological bond -- be maintained. The court also concluded that the doctrine doesn't violate the legal parent's parental rights under the Constitution (distinguishing Troxel v. Granville, the case striking down a grandparent visitation law). That part seems quite sensible to me. What do you folks think? 1. Should a judge be free to order a parent to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic"? Should the judge be allowed to so order only after a specific finding that without the restriction, "the child's emotional development [would be] significantly impaired"? 2. If your rationale is that the judge can and should order a parent not to teach things that could undermine the child's respect for the other parent, say that Clark's ex was a racist. Should the judge have been allowed to order the child to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be consider racist-phobic"? I believe that hostility to lesbians is indeed morally wrong while hostility to racists is morally right. But does the First Amendment distinguish the two, and conclude that orders not to teach a child homophobia are permissible (at least when such teachings could undermine the child's respect for the other parent) while orders not to teach a child hostility to racists are impermissible (even when such teachings could undermine the child's respect for the other parent)? (For my answer to these questions, see PDF pages 86-88 of my article.) Related Posts (on one page):
Puzzles About Proof.
I have a taste for conundrums and paradoxes, and The Legal Analyst discusses lots of them. Here are a couple of fun examples involving problems of proof: 1. The conjunction paradox. The standard of proof in a civil lawsuit — a case arising from a car crash, for example — is the preponderance of the evidence: the plaintiff has to prove his case by a “more likely than not” standard. So imagine a case where there are three contested issues. Maybe it’s an accident case where the plaintiff has to prove (a) that the defendant was negligent, (b) that the negligence was the cause of the accident, and (c) that he has a good, truthful excuse for the fact that the claim appeared to be late under the statute of limitations. The jurors decide that they are around 60% sure that the plaintiff is right about the negligence claim, around 60% sure that he is right about causation, and around 60% sure that he is truthful in his story about the statute of limitations. Should the plaintiff win this case? (Don’t be too sure of yourself!) Would the plaintiff win this case? In other words, how do you think the jury should and would be instructed to act if it reached these conclusions? [UPDATE. The plaintiff will probably win, because jurors generally are told to find for the plaintiff so long as they think each element of the case is proven by a preponderance of the evidence. Yet the chance that all of the elements of the plaintiff's case are true is around 22%, which seems to flunk the preponderance standard, creating not only a paradox but some potentially serious problems of policy. There are various replies to this — that sometimes these probabilities may not be independent, or that sometimes the jury may be choosing between only two possible stories, or that we can draw additional confidence from the fact that (say) six jurors, and not just one, all reached the same conclusions. But many students of the paradox nevertheless conclude that defendants are often held liable when they shouldn't be. See, e.g., Ronald J. Allen and Sarah A. Jehl, Burdens of Persuasion in Civil Cases: Algorithms v. Explanations, 2003 Mich. St. L. Rev. 893. These ideas are discussed more in the book.] 2. Proving the law. Suppose you offer to trade a gun to a drug dealer for a couple of ounces of cocaine. The seller accepts, then announces that he is an undercover FBI agent and leads you off to jail. You are prosecuted under a statute that gives many years of prison to anyone who “uses" a firearm in relation to a drug trafficking offense. You have two lines of defense. You plan to deny that you ever really offered the gun to the undercover agent; to overcome this denial, the government will have to prove its case beyond a reasonable doubt. So far, so good. But you also have another argument: that the prosecution has misread the statute. You don't “use” a gun if you try to barter it; you only "use" a gun (you plan to argue) by putting it to work as a weapon. There are lively arguments to make either way on this issue (and I’m not really looking for them here). Assume that the judge thinks it’s close but decides that the statute does cover your case. Well, but wait — how sure must the judge be? Is it necessary that he be convinced beyond a reasonable doubt? If not, why not? (I consider the second question — why — the more difficult and interesting part.) [UPDATE. The puzzle is that we require a very high level of certainty when it comes to facts in criminal cases, but not when it comes to law; we are willing to award long prison sentences, or for that matter death sentences, on the basis of interpretative decisions that everyone knows may be quite doubtful. Indeed, judges do not generally confess to using any standard of proof or confidence at all when they interpret the law, with the partial, occasional, and unreliable exception of the rule of lenity (the use of which I discuss here). The best explanation of this state of affairs, perhaps, is that if we required any particular level of confidence before a judge could state the law, there might be many situations where there ends up being no law because there is no interpretation that satisfies the standard of proof. This could have some rather untoward consequences. These ideas, again, are discussed in the book; the most interesting longer treatments, I think, are Gary Lawson, Proving the Law, 86 Nw. U. L. Rev. 859 (1992); Larry Alexander, Proving the Law: Not Proven, 86 Nw. U. L. Rev. 905 (1992).] Related Posts (on one page): Why Parents in Split Families Shouldn't Lose Their First Amendment Rights To Talk to Their Children:
Many defenses of child custody decisions based on parents' speech and religion acknowledge that parents in intact families have broad rights to speak to their children free of government restraint (see PDF pages 43-53 of this article), but argue that in split families this is different. I think this is wrong, as I argued at length in my NYU article; but I thought I'd excerpt some of my arguments here, in a somewhat abridged form. 1. Surrender of Parental Rights: Some argue that parents in split families lose some of their constitutional rights: “In matters of custody, the family unit has already been dissolved, and that dissolution is accompanied by a weakening of the shield constructed against state intervention. A parent cannot flaunt the banner of religious freedom and family sanctity when he himself has abrogated that unity.” Each parent's right to live with a child, and to control the child's upbringing, must indeed yield in some measure when the parents split up. The child can't physically be in two separate households at once; and if the parents are hostile enough to each other, they can't make joint decisions about the child's life. But it doesn't follow that parents' First Amendment rights must likewise yield. Parents' individual rights to speak to their children (and to practice their religions by speaking to them) can still be fully exercised after the parents break up. The parent may no longer be able to rely on the sanctity of the family as a unit, but he may rely on the sanctity of his own constitutional rights. The government must intervene to some extent when a family breaks up, but there's no inherent reason that it must intervene in the parents' speech. Nor has the parent's conduct somehow waived the right. First, child custody speech restrictions may be imposed on a parent even when the family's unity was abrogated by the other parent: The law here doesn't distinguish the leaving parent from the one who gets left. Second, even when a parent seeks the divorce, it hardly follows that the government may require the parent to waive his constitutional rights as a condition of getting that divorce. That's true for First Amendment rights generally (or for that matter Fourth Amendment or other rights); it's presumptively equally true for First Amendment rights to speak to one's children. 2. Best Interests Above All: Child custody speech restrictions also can't be justified simply by arguing that protecting a child's best interests is so important that it trumps any First Amendment rights. Parent-child speech is protected in intact families even when it may undermine the child's best interests. And this is so even though parental teaching of bad ideologies in intact families can sometimes be more harmful than the same speech in split families: If the parents are divorced, one parent might counteract whatever harmful ideology the other parent is teaching, or at least each parent's authority might be decreased because the parent has less time with the child. But if the parents are still together, they're more likely to teach the child the same message; the child will be even more within their ideological control; and the child's best interests would be even more hurt by the bad teachings. Thus, proponents of child custody speech restrictions must say something more: They need to explain why the same interest that is inadequate to restrict speech in intact families becomes adequate when the family is split. 3. Need to Decide Accurately: One possible “something more” is that in split families, the judge has been called in, and some custody decision must be made. The court should therefore make the most accurate decision it can, the argument would go, by considering all the relevant evidence, including the parent's likely future speech. Related Posts (on one page):
To Those Who Defend Family Court Decisions That Discriminate Based on Parents' Religion:
I've seen quite a few defenses of the anti-pagan-parent decision along the lines that the best interests of the child should trump constitutional considerations, that parents should be free to believe what they will but shouldn't be free to expose their children to it, and the like. I discuss this in considerable detail in my article, especially Part II.B, PDF pages 53-81. But for now, let me ask you what you'd think of this hypothetical decision:
A few possible answers: 1. This decision, as well as a decision discriminating against pagan, atheist, less religious, racist, Communist, unpatriotic, hyperpatriotic, etc. parents, would violate the First Amendment, because (at least absent some evidence that the teaching are likely to lead to serious and imminent harm) a court ought not consider a parent's ideology. 2. This decision is perfectly constitutional, since the best interests of the child trump any constitutional considerations. "The issue wasn't so much that Mom was [Christian], but that she blogged about it. She has a right to her own [attitudes about sex], but the kid has some right to be free of them. There's at least an inference here that the blogging and open talk of [hostility towards certain kind of] sexuality were creeping over into the parenting sphere of this child's life." 3. This decision is mistaken, but only because the court errs in its "best interests" judgment. If it really was against the child's best interests to be raised to believe that premarital sex and homosexuality is wrong, and that non-Christians will go to hell, the decision would be entirely proper. A judge who believes that being raised Christian (or this kind of Christian) is against the child's best interests should rule exactly the way this hypothetical judge did. Likewise, an appellate judge who agrees (or who thinks this finding isn't clearly erroneous) should affirm the ruling. I just think that judges should take a different view of the facts, and rule the other way because of that. 4. This decision is unconstitutional, but a decision discriminating against pagan, atheist, less religious, racist, Communist, unpatriotic, hyperpatriotic, etc. parents would be constitutional, because [please explain why]. Related Posts (on one page):
Mother's Open Paganism Treated as Reason to Deny Her Custody:
From the trial court's judgment giving the father custody (a decision upheld on appeal), Dexter v. Dexter, no. 2005 DR 0110 (Ct. Com. Pl. Portage County, Ohio May 1, 2006), aff'd, 2007 WL 1532084 (Ohio App. May 25):
The father may indeed have been a more suitable parent on some grounds, for instance if the mother and her fiance indeed used illegal drugs (though note that the drug use is listed as just one item among many, including the paganism), or if the mother's online time materially affected the time she spent with her daughter (though I assume that if the mother's problem was that she left her daughter unattended, for instance, the court would have said that rather than just pointing to her "spend[ing] a great deal of time online"). But the reference to mother's paganism — and the view that pagans may be denied custody because their open practices risk "exposing such lifestyle to [their] child[ren]" — strikes me as a clear First Amendment violation. It seems to me that her bisexuality should likewise be none of the court's business; nor should her sado-masochism, unless there's some specific evidence that the practices are physically harmful to her and thus indirectly to the child (evidence that judgment, the magistrate's findings, and the appeals court decision never even hinted at). Likewise, reliance on the fiance's theater performances seem to me barred by the Free Speech Clause. Still, even if we set the sexual practices aside, perhaps on the theory that Lawrence v. Texas provides only modest protection for sexual autonomy (a hotly debated question), the First Amendment bars a court from relying even in part on the mother's pagan religious beliefs or open participation in pagan religious rituals (except insofar as some specific conduct during those rituals endangers the child or perhaps the parent, something there's no evidence of here). For more on courts restricting pagan practices (there, Wiccan practices), see this post and the Decree of Dissolution of Marriage, Jones v. Jones, No. 49D01-0305-DR-00898, at 4 (Feb. 13, 2004) (directing both parents "to take such steps as are needed to shelter [the child] from involvement and observation of these non-mainstream religious beliefs and rituals"), rev’d, 832 N.E.2d 1057, 1061 (Ind. Ct. App. 2005). For information on courts discriminating against parents who are less religious and less observant than their ex-spouses, see this post. For more on the general issue of child custody decisions that restrict parents' speech, or that count parents' speech and religious belief against them, see my Parent-Child Speech and Child Custody Speech Restrictions, 81 NYU L. Rev. 631 (2006). UPDATE: I should have also quoted the appellate decision, which does flag the possible impropriety of relying on religion and the like, but which also suggests that considering religion as a factor is permissible. Here is the relevant excerpt:
It seems to me wrong to allow courts to rely even in part on a parent's religion -- at least absent some specific finding that the religion poses a serious imminent risk to the child -- and wrong also just to assume that, even if the reliance on religion was wrong, the result would have been the same without such reliance (at least where the lower court opinion reveals that the court took the religion factor pretty seriously, rather than just mentioning it in passing). The better view, I think, is that expressed in Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979) (paragraph break added):
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