This essay considers the Anglo-American legal treatment of sadomasochistic sexual practices, under which the consent of the masochist furnishes no defense to a charge of assault against the sadist. The law's unwillingness to recognize the masochist's consent in this context, I argue, suggests unease with the ways in which S/M reflects and exposes the operations of law. The essay begins with Robert Cover's work on law's potential to domesticate violence, locating an aporia around sadomasochistic sexuality and the putative irrationality it represents at the heart of Cover's account. It then discusses the legal regulation of homosexuality as a backdrop against which to situate the legal treatment of S/M within discussions of privacy and consent.
This abstract reminded me of a criminal case in Ohio in 2001. Multiple stories from the Akron Beacon Journal discussing the case are reprinted here. An article from the August 7, 2001 edition of the Beacon Journal lays out the basic allegations:
The alleged victim doesn't deny that she and Kevin Erwin had kinky sex, using whips and assorted toys to pleasure each other.
She says, though, that rough play turned to torture one day two months ago when she forcefully was tied to a bed, raped, beaten, bitten, branded with the letter K, threatened with a knife and blowtorch, burned with a lighter and shocked in several parts of her body with an electrical device.
"It felt like screws digging through your bones,'' the 38-year-old fast-food restaurant manager testified yesterday, describing the pain from the electrical current that shot through her foot, genitals, shoulder and underarm. "It was a constant assault. The more agony I was in, the happier he was. He wanted to hurt me. He said he was going to kill me.''
Erwin faces charges of kidnapping, rape and felonious assault. His trial began yesterday in Stark County Common Pleas Court.
However, in the end, a jury composed of six men and six women acquitted Erwin on all counts. In the aftremath of the trial, the jury foreman stated that a defense expert on sadomasochism proved influential and made remarks that indicated that all of the conduct appeared to be consensual. In an effort to demonstrate the consenual nature of the relationship, Erwin's attorney had entered into evidence notes and e-mail exchanged between the two as well as an S&M master-slave contract that had been executed.
In a rapidly expanding universe of blawgs, it's increasingly impossible to keep up with all of the new content. Raising the Bar provides a nice vehicle for acquainting readers with blawgs and/or posts that they might not have otherwise encountered. Kudos to Mellow-Drama for coming up with the idea.
I am unable to characterize a post that reads like a legal memorandum as a Fisking.
I think that's the most amusing reaction to one of my posts that I have yet encountered.
Several blogs have also permalinked this site of late: newcomer The Briny Pickle, the Burnt Orange Report a fellow law clerk's blawg simply entitled In Re:, and Greg Goelzhauser's Law and Economics Blog. Incidentally, for those interested in all things related to the Lone Star State, the Burnt Orange Report has the most comprehensive listing of Texas bloggers and Texas news sources that I have yet seen.
I've also managed to garner links from Creative Destruction, Deinonychus Antirrhopus, the Modulator, and the SCSU Scholars. Interest in discussions of SMU's affirmative action-related bake sale and Scripture accounted for these links.
Additional Thanks. Last but not least, allow me to thank many more familiar bloggers for their relatively recent links to this site. Beldar Blog, Crescat Sententia, How Appealing, Legal Reader, Marstonalia, Mellow-Drama, Politics & Law, Sixth Circuit Blog, Southern Appeal, SW Virginia Law Blog, Tainted Law, Three Years of Hell to Become the Devil, and the Volokh Conspiracy have all linked to this site in the recent past. All of these are fine blawgs and I am flattered to be associated each of them.
I was initially inclined to criticize Froomkin's idea for being unrealistic in its assessment of online RPGs' potential for serving as similacra of real life. There are, after all, numerous differences between these virtual worlds and everyday life, not the least of which is the fact that no one truly has to live with the consequences of their online actions. It would be difficult to set parameters that realistically constrain the deliberative process. And without such parameters, these simulations would be like playing poker without betting. Anticipating and accounting for all of the relevant variables would also likely be problematic, particularly in an artificial environment.
Froomkin and his co-author (and wife), Caroline Bradley, do acknowledge some limitations of online RPGs. But they also seem to suggest that skepticism (like mine) can be overstated. As they note in their paper, in-game behavior already intersects with real world valuations:
As Edward Castronova has documented, large numbers of people spend very large amounts of time immersed in virtual worlds. As the structure of many MMORPGs makes it difficult, time-consuming—and even boring—to "level up" avatars [i.e., characters] to the point where they have substantial skills and resources, some people reach for shortcuts. Valuing time over money they go outside the game to purchase game-based resources or high-level avatars. The volume of transactions in Everquest coinage and characters allowed Castronova to estimate the exchange rate for Norrath's platinum coins against the US dollar at 1.07 cents per platinum coin. Based on his estimates of the amount of time it takes to create virtual value, and the trading prices of avatars on dollar-denominated outside-of-game markets, Castronova also estimated the gross national product of Norrath to be as high as $135 million. In per capita terms, Everquest's world had a GNP of as much as $2,266 per head. Using a range of estimating techniques gave Norrath a GNP per capita somewhere between Russia and Bulgaria. Using survey data, Castronova estimated an average hourly wage for Norrath avatars at 319 platinum pieces per hour, which at the market rate of exchange worked out to $3.42 per hour.
[Footnotes omitted; hyperlinks added]
Although I remain skeptical, I have to admit that the quoted material and stories like this one from the BBC indicate that online players do ascribe very real values to their online possessions and act accordingly. The BBC reports that:
Wizards, warriors and witches are nothing new in the online gaming world, but have they been joined by real life criminals stealing virtual goods worth hard cash? South Korea's police are already on the case.
* * *
Players in some online games have had their virtual homes invaded by gangs who kick them out of the house and steal all their virtual goods.
Others have been conned out of powerful magic items that, in some cases, took months of work to obtain.
The police in South Korea - a country as mad about gaming as the UK is about football - report that of the 40,000 or so cybercrimes reported in the first six months of 2003, more than half (22,000) had something to do with online gaming.
The problems of online crime are made more serious by the growing numbers of people making a living from trading items from the games.
A game account that gives someone control of a powerful character can change hands for thousands of pounds. Even single powerful magic items can command a hefty price.
So given that virtual items, mere bits in a datastream, can be shown to have real world value is it about time that the police started to be called in to investigate some of these crimes?
* * *
Jennifer Granick, an expert on technology law from the Center for Internet and Society at the Stanford Law School, says courts had no problem treating intangibles, such as intellectual property, as things that can be stolen.
"I'm not sure that governments would care to prosecute thefts of online goods at this point in time, but I have no doubt that the argument that such items are valuable is strong."
It may be, however, that the potential blurring of this distinction between virtual and real life imperil's Froomkin's thesis in a way that my prior skepticism failed to do so. It seems to me that the notion that virtual worlds constitute potential theoretical laboratories hinges upon the assumption that such simulations sufficiently mimic the real world, but do not intersect with reality in ways that prescribe inalterable legal rules. If virtual environments are, in certain respects, constrained by actual real world laws regarding intangible property, then they may not be the tabula rasa that Froomkin envisions. Could it be that virtual reality is not sufficiently virtual to serve as a venue for legal experimentation?
At age 3, Timberland is too young to be embarrassed about being named after a bestselling brand of footwear, but his mother cringes.
"His daddy insisted on it because Timberlands were the pride of his wardrobe. The alternative was Reebok," said the 32-year-old nurse, who is now divorced.
"I wanted Kevin."
The boy is not alone: five other Americans were named Timberland in 2000, according to social security records.
A trend for naming children after favourite possessions is accelerating in brand-driven America.
* * *
At least one couple has apparently attempted to sell the naming rights of their child to corporations over the Internet. However, according to the article excerpted above, the motivation is usually non-commercial:
Edward Callary, a past president of the American Names Society, said a determination to be different was the hallmark of the current generation of young parents: "The more we feel defined by numbers, in our postal codes and bank statements, the more we need to shout out a unique name into the world.
Being a traditionalist, I find this trend appalling. But let's set aside my disgust. Assuming that uniqueness is the motivating factor, this trend does not speak well of these parents' intellect. One can hardly assert uniqueness by naming one's child after ubiquitous products. The story, by the way, goes on to note that Social Security records document that 24 children were named "Unique" in 2000.
Syria has said it would consider sending peacekeeping forces to Iraq if a deadline is set for a U.S. troop withdrawal and if the United Nations assumes control of its war-ravaged neighbor.
Arab League Secretary-General Amr Moussa told Al-Hayat while in New York for the U.N. General Assembly that Arab states will not send forces to Iraq to "defend occupation troops."
"If any Arab country is considering sending troops, this will be after they get a request from those concerned, the Iraqis," Moussa was quoted as saying.
"We care about Iraq, not the occupation."
I am pleased that the Saudis will have no hand in Iraq, for reasons that should be obvious. But what possible good could come of having the likes of Syria involved in Iraq? Did we really go to the trouble of deposing one Baathist regime only to have it occupied by another Baath Party-controlled state? If this story is an accurate indicator of what a U.N.-led occupation would look like, we would be better off going it alone and footing the entire bill ourselves.
Nota Bene: Incidentally, who at AP decided that Iraq qualified as "war-ravaged"? Afghanistan is "war-ravaged." If Iraq, which was subject to a short, minimalist military campaign also qualifies as "war-ravaged," then the term has no meaning.
Update: I stand corrected. Iraq, for reasons all too familiar but overlooked by myself, is indeed "war-ravaged." See the comments for the details.
For some reason or another, many people cannot seem to grasp the concept of personal responsibility. Suicide is another event that triggers such lawsuits. Rock music is a frequent target of opportunity for those who inevitably think that someone else must be responsible for such self-inflicted tragedies. See, e.g., Waller v. Osbourne, 763 F. Supp. 1144 (M.D. Ga. 1991), aff'd, 958 F.2d 1084 (11th Cir. 1992), cert. denied, 506 U.S. 916 (1992); Vance v. Judas Priest, No. 86-5844, 1990 WL 130920 (Nev. Dist. Ct. Aug. 24, 1990) (unpublished opinion). Music lyrics are also blamed for violent conduct carried out against others with some regularity. See, e.g., Cox v. Rap-A-Lot Records, No. 95-2236, 1996 WL 227233 (10th Cir. May 6, 1996) (unpublished opinion).
No doubt, the content that we choose to upload into our cerebrum has the potential to affect our character and conduct in some fashion. Anyone who accepts the notion that a classical liberal education can improve a person has to concede the accuracy this proposition. (Or else why bother?) But this acknowledgment of potential affect is not a concession of cause and effect.
I think the failure to appreciate this critical distinction is what leads people like Thompson to attempt to hold third parties liable for the wrongdoing of others. We have recently seen similar failures of logic regarding causation and volition at play in a variety of contexts in our legal system (e.g., suits against gun manufacturers, suits against fast food restaurants). But if a person attacks another with a kitchen knife, it seems to me that the attack says more about the attacker than the cutlery or its manufacturer. Likewise, if someone is inspired to engage in a crime spree that is reminiscent of a particular video game, doesn't it just signal that something is terribly wrong with the that particular individual, especially given that the vast majority of such players do not become criminals? Logically speaking, how are suits directed against video game-makers and distributors any different from a hypothetical suit against the authors, publishers, and distributors of a book like A Clockwork Orange in the event that someone imitates that novel's miscreants?
It's not that publishers, for example, cannot under any circumstance be liable for illegal activities connected with their publications. See, e.g. Rice v. Paladin Enters., Inc., 128 F.3d 233 (4th Cir. 1997), cert. denied, 523 U.S. 1074 (1998); see also Jacob Sullum, Murderous Prose, Reason Online, May 27, 1998 (discussing the Rice case). However, Grand Theft Auto is no more a vocational primer for carjacking and other felonious mayhem than Lolita is a how-to manual for child molestors. I have played the former and have read the latter, yet I have managed to restrain myself from stealing any cars or abducting any children. To borrow a phrase from Timothy Sandefur: Behold my marvelous self-control!
. . . [A]re we forgetting about the state action doctrine here? SMU is a private school, to which the First Amendment has not been incorporated. I haven't read Title VI, so I don't know if it conditions acceptance of federal dollars (which SMU certainly does accept) on complying with the First Amendment as if a public school, or if it even could. And there might be state or federal public accomodation laws (like those at issue in Boy Scouts v. Dale?) SMU has to comply with. But that would make this a statutory issue, not a constitutional one. I think the SMU administration was dumb, but I don't think it violates the First Amendment.
In a literal sense, it is my understanding that Bryant is almost certainly right regarding the difference between public and private universities. However, in discussing constutional law, it was not my intent to suggest that this incident was a violation of the Constitution that might be litigated in court.
The reason that I addressed the issue in terms of constitutional law is because SMU itself purports to cherish both academic freedom and the other rights asociated with the First Amendment. Consider, for example, Vice President for Student Affairs Jim Caswell's statement quoted in the Dallas Morning News:
"We value free speech, and I think our record here shows freedom of expression is important to the academic community and especially this one."
Consider also the following statement made in SMU's official press release:
SMU has a long tradition of encouraging open debate and considers such dialogue central to its academic mission.
These statements are simply incompatible with SMU's decision to halt the mock bake sale. There is a Janus-like quality to SMU's actions. It purports to value the First Amendment while simultaneously trampling it. So, no, SMU, as a private institution, is not bound by the same standards of academic freedom and other First Amendment doctrines that bind a public university. However, SMU professes to cherish both academic freedom and its students' First Amendment rights. Accordingly, it ought to voluntarily comply with the dictates of the First Amendment. Otherwise, its purported valuation of First Amendment freedoms is just so many empty words. Given SMU's stated beliefs, the fact that SMU's conduct does not pass constitutional muster ought to matter very much to the university's administrators.
The Young Conservatives of Texas chapter ran its so-called affirmative action bake sale to protest the use of race or gender as a factor in college admissions. Conservative groups have held similar sales at colleges around the country since February.
Group leaders say they were only making a point while exercising their freedom of speech, but a black student who filed a discrimination complaint with SMU said the bake sale was offensive. SMU officials said they halted the event because it created a potentially unsafe situation for students.
"This was not an issue about free speech," said Tim Moore, director of the Hughes-Trigg Student Center. "It was really an issue where we had a hostile environment being created that was potentially volatile."
During the bake sale, students were crowding around the table outside the student center, and several began to get into a shouting match, Mr. Moore said.
David C. Rushing, a second-year SMU law student and leader of the conservatives' group, said the event didn't get out of hand and that at the most, a dozen students gathered around the table of sugar and chocolate chip cookies and Rice Krispie treats.
* * *
Mr. Rushing, 23, said the events strive to give students a sense of the inequality he says is created by unequal college admissions policies for whites and minority groups.
Matt Houston, a sophomore, said the group's sign, which listed prices for the treats by the race and sex of buyers, was not a learning tool. It was offensive, he said.
"My reaction was disgust because of the ignorance of some SMU students," said Mr. Houston, who is black. "They were arguing that affirmative action was solely based on race. It's not based on race. It's based on bringing a diverse community to a certain organization."
* * *
"We value free speech, and I think our record here shows freedom of expression is important to the academic community and especially this one," said James Caswell, SMU's vice president of student affairs.
Although the director of the student center emphasized a threat to public safety, the students hosting the bake sale claim that the school's motives were quite different. According to a press release issued by the Young Conservatives of Texas:
YCT at SMU was originally asked by university officials to shut down the bake sale because several students had complained that the premise was offensive, and not conducive to the community environment that SMU strives to create. However, YCT had completed all the necessary paperwork to hold this event.
* * *
YCT initially refused to discontinue their bake sale, insisting that the event was designed to prove a point about affirmative action and to educate the student body. After this, the group was ordered to do so and presented with a non-discrimination clause in the student handbook saying that SMU will not discriminate based on race or gender.
For it's part, the university has also issued a press release. The release reads, in its entirety:
Following is a clarification of an incident leading to media reports portraying the matter as an issue of free speech at SMU.
On September 23, University officials received complaints from several students, concerned that a bake sale had been set up outside the Student Center with different prices for baked goods based on race and gender. At the request of the concerned students, a University official visited the site and determined that a volatile situation had been created and that the event should end in the interest of student safety. The sponsoring group, the Young Conservatives of Texas, had received permission to set up a bake sale, but failed to inform University officials of the true purpose of the event.
SMU has a designated debate area on campus for students to set up tables with information on various political issues, available to all student organizations. It is a violation of the University's nondiscrimination policy to sell goods at different prices based on race, ethnicity, or gender; however, signage expressing political points of view is a matter of free speech consistent with University policy.
SMU has a long tradition of encouraging open debate and considers such dialogue central to its academic mission. An open forum on affirmative action had already been planned for October 8 at SMU, and the Young Conservatives of Texas will have an opportunity to express their point of view, along with other students. They will also have the opportunity to set up a table with signage in the designated campus debate area, but may not engage in discriminatory practices through the sale of goods priced according to race, ethnicity or gender.
What is amazing to me about the university's response is that it apparently cannot identify its own reasoning with any clarity. Several rationales seem to be put forward all at once. The purported rationales appear to be as follows:
Unfortunately for the university, none of these reasons pass constitutional muster. Given that SMU's officials purport to respect free speech rights, this ought to matter a great deal to them. Let's take the potential justifications one at a time in the order listed above.
First, the notion that the conduct involved here does not constitute protected First Amendment activity on account of the fact that it does not literally consist of speech is a specious argument. The Supreme Court has rejected such a principle, holding that First Amendment rights "are not confined to verbal expression" and "embrace appropriate types of action." Brown v. Louisiana, 383 U.S. 131, 142 (1966). Expressive conduct or symbolic speech is constutionally safeguarded from prohibition when the conduct is prohibited "precisely because of its communicative attributes." Barnes v. Glen Theatre, Inc., 501 U.S. 560, 577 (1991) (Scalia, J., concurring) (emphasis in original). Finally, it is not clear that speech in the most literal sense was not involved here. After all, the differential price scheme was memorialized in writing on a sign. Likewise, a good deal of speech, apparently of a somewhat heated nature, was taking place in the immediate vicinity.
Second, the university argues that the conduct was discriminatory and therefore in violation of SMU's policies. There are really two potential claims here. The university contends in its press release that sale of goods to students at prices that vary according to the purchaser's ethnicity is itself discriminatory. The students who filed the complaint against the bake sale also indicated that it was offensive, and potentially constituted racial harassment. For example, student Kambira Jones is quoted in the Dallas Morning News as stating that:
"When I saw this, I was like, 'I can't believe they let you guys post this,' " she said. "I felt they were attempting to make Hispanics and blacks feel inferior.
The student center's director's remarks indicated that the event may have been shut down on the basis of the latter, inasmuch as he uses the phrase "hostile environment" in his explanation of the decision to halt the bake sale.
As a matter of fact, the first of these two discrimination-based arguments appears to be mistaken. As the leader of the Young Conservatives of Texas commented:
"This event was obviously symbolic speech, not an attempt to set up a bakery. We sold only a few dollars worth of baked goods and, if anyone really wanted the items, we would have gladly given them away regardless of race. Our purpose was to speak out against racial and gender discrimination by illustrating what affirmative action does."
According to the Dallas Morning News story, the group made less than "a few dollars." In approximately forty-five minutes of time, the "sale" netted a whopping $1.50. So the facts on the ground certainly do not corroborate the notion that a bona fide discriminatory commercial enterprise was underway.
Moreover, the prospect of being confronted by university administrators aghast at discriminatory conduct is patently laughable. If it were not for racially-tinged admissions policies, the very protest that the university shut down would not have taken place. As detailed by Rushing, SMU is certainly no stranger to policies constructed upon race and ethnicity:
"SMU's Department of Multicultural Student Affairs promotes dozens of student organizations that exclusively admit members of only certain races and ethnicities. Moreover SMU itself sponsors numerous racially exclusive programs such as its Orientation of Minority Students, Minority Student/Parent Reception, and Minority Academic Awards Ceremony. To avoid being hypocritical and comply with its own stated policy, SMU must now shut down these myriad organizations and programs that are even more offensive than charging races different prices for goods, as they totally exclude entire racial groups."
The second harassment-based discrimination claim is a complete non-starter. As a general proposition, prohibitions of "speech that is deemed likely to cause a certain response in the audience based on its content are typically viewed as skeptically as direct content restrictions." Gerald Gunther & Kathleen Sullivan, Constitutional Law 1208 (13th ed. 1997). The sort of direct content restriction that SMU's halting of the bake sale most closely approximates is viewpoint discrimination. "The [Supreme] Court generally treats restriction of a particular point of view as the paradigm violation of the First Amendment." Id. at 1204. A harassment-based discrimination claim is actually somewhat reminiscent of the sort of Fourteenth Amendment arguments advanced in favor of speech codes and anti-pornography ordinances. Neither the codes nor the ordinances have met constitutional muster. See, e.g., Am. Booksellers Ass'n v. Hudnut, 771 F.2d 323 (7th Cir. 1985) (anti-porn ordinance), aff'd mem. 475 U.S. 1001 (1986); Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) (campus speech code).
Third, the university's argument that the Young Conservatives of Texas effectively misled administrators by failing to appraise them of the political nature of their mock bake sale, notwithstanding literal compliance with the student center's paperwork requirements, is tantamount to a prior restraint. In effect, the university is arguing either that: (a) had it known of the nature of the event, it would have prohibited it from taking place from the very start; or (b) duly registered student organizations must clear all political speech with university authorities prior to exercising any First Amendment rights. As the Supreme Court has noted, "[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963).
Fourth, nothing in the factual recitations rendered by the Dallas Morning News, the Young Conservatives of Texas, or SMU tend to support the notion that public safety was at issue. For example, none of the accounts relate that the university police were dispatched. Indeed, notwithstanding some alleged "shouting," students who objected to the event actually went to and filed a complaint with university administrators rather than becoming aggressive or violent. No one maintains that there were any threats issued. No one has even suggested that colorful language was employed. In its press release, SMU represents that the situation was "volatile" and that the event was halted in the interest of "student safety," but literally not one corroborative factual allegation has been set forth. SMU's account, of course, is flatly at variance with the facts as alleged by the Young Conservatives of Texas. Indeed, the SMU press release is contradicted by the university officials who were there on the scene. As reported in the SMU Daily Campus:
According to Hughes-Trigg building manager Tim Moore, two students came to the Mane Desk upset about signage on the West bridge booth sponsored by the YCT. Moore and Director of Student Affairs Arlene Manthey went to the West bridge to see what was happening.
“We saw a diverse group gathered in front of the booth. We also saw another piece of signage that read ‘Affirmative Action is Racist,’ along with the sign stating the prices for the sale,” Moore said.
Seeing that the situation could have become volatile, Moore and Manthey confronted the students running the booth and made them stop the bake sale.
The emphasis is mine. Notwithstanding this rather unalarming account of the state of affairs when the event was shut down, Caswell states in the Daily Campus article that, "[t]he situation was escalating to the point of danger." The factual grounds for this conclusion remain unelaborated, however. Moreover, SMU's account does not bother to inform readers of the source of this purportedly "volatile" situation. Surely SMU cannot be suggesting that if the exercise of one's First Amendment rights makes others threaten violence or become violent that the cure will be to halt the exercise of those rights. Criticism of affirmative action does not constitute fighting words (i.e., personally abusive epithets). See Cohen v. California, 403 U.S. 15, 20 (1971) (discussing fighting words); see also John Hart Ely, Democracy and Distrust 114 (1980) (noting that the fighting words doctrine requires "a quite unambiguous invitation to a brawl"). Excepting the employment of fighting words, suspending the First Amendment in the face of agitation would effectively consign the amendment to oblivion. All one would have to do to suppress disagreeable speech is threaten lawlessness. In short, under SMU's apparent theory of the First Amendment, the extent of one's free speech rights would be inversely proportional to the offense accrued by their exercise. The more offended or excited to opposition one's opponents became, the less right to free expression one would retain. Such a rule turns the First Amendment on its head.
This fourth justification for the suppression of speech dovetails somewhat with SMU's third rationale (i.e., speech as harassment) and translates into a supposed right of listeners to curtail speech that they find vexing. The Supreme Court has explicitly rejected such a prophylactic rule:
Finally, in arguments before this Court much has been made of the claim that Cohen's distasteful mode of expression was thrust upon unwilling or unsuspecting viewers, and that the State might therefore legitimately act as it did in order to protect the sensitive from otherwise unavoidable exposure to appellant's crude form of protest. Of course, the mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense. See, e.g., Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971). While this Court has recognized that government may properly act in many situations to prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from the public dialogue, e.g., Rowan v. United States Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970), we have at the same time consistently stressed that 'we are often 'captives' outside the sanctuary of the home and subject to objectionable speech.' Id. at 738, 90 S.Ct., at 1491. The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner. Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections.
In addition, SMU's public safety argument, as a general matter, is very telling in regard to the constitutionality of its decision to halt the mock bake sale. Consider this passage penned by Law Professor John Hart Ely:
Restrictions on free expression are rarely defended on the ground that the state simply didn't like what the defendant was saying; reference will generally be made to some danger beyond the message, such as a danger of riot, unlawful action or violent overthrow of the government. Thus in Brandenburg the state's defense was not that the speech in question was distasteful, though it surely was, but rather that speeches of that sort were likely to induce people to take the law into their own hands. The reference of O'Brien's second criterion is therefore not to the ultimate interest to which the state is able to point, for that will always be unrelated to expression, but rather to the causal connection the state asserts. If, for example, the state asserts an interest in discouraging riots, the Court will ask why that interest is implicated in the case at bar. If the answer is (as in such cases it will likely have to be) that the danger was created by what the defendant was saying, the state's interest is not unrelated to the suppression of free expression within the meaning of O'Brien's criterion . The categorization approach of cases like Brandenburg and Cohen, rather than (either variant of) O'Brien's criterion  is therefore in order, and the regulation will very likely be invalidated.
John Hart Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 Harv. L. Rev. 1482, 1496-97 (1975).
Fifth, the university's press release seems to indicate that it has express times and places set aside for political events and that the mock bake sale failed to comply with these restrictions. In this fashion, the university may hope to get around the aforementioned prior restraint problem. However, even SMU's time, place, and manner restriction argument fails to insulate from unconstutionality its decision to shut down the mock bake sale.
As an initial matter, designated free speech zones on (state) college campus's are of dubious constitutionality in general. The Supreme Court has yet to address the issue. However, a federal district court in Texas has already struck down one such free speech zone at the University of Houston. As reported by the Houston Chronicle on November 11, 2002:
UH . . . declared after the March 2001 [anti-abortion] exhibit that most of the university would be closed to "student expression," except in five designated free speech zones. Students would need prior approval to use any of those free speech zones.
Since Butler Plaza was not one of these designated areas, university officials denied a request by the Pro-Life Cougars student group to erect the same anti-abortion display in the plaza last fall. The student group, represented by the conservative Christian Alliance Defense Fund of Scottsdale in Arizona, sued.
In June, U.S. District Judge Ewing Werlein Jr. ruled that UH's policy was unconstitutional because it gave dean of students William F. Munson "unfettered discretion" in determining what events could be considered potentially disruptive and thus relegated to free speech zones.
Although not addressing "free speech zones" per se, the Supreme Court has likewise expressly invalidated time, place, and manner restrictions that empowered decison-makers with "such broad discretion" that it effectively permits them "to act as a censor." Cox v. Louisiana, 379 U.S. 536, 558 (1965). Such unfettered discretion is precisely what is at issue here. As an alumnus of SMU, I can personally testify that the Hughes-Trigg Student Center is employed by all manner of student organizations, including political and ethnic student organizations. Local campus political events (e.g., student government candidate debates) have been held there in the past. Debates and speeches related to contentious national political topics have been held there in the past as well. I was actively involved in student government and possessed a general awareness of campus happenings during my tenure there as a student. I practically resided in the student center. To my knowledge, no organization-sponsored event in the student center was ever forbidden from taking place there or suspended in mid-event.
In short, the Hughes-Trigg Student Center is, by university custom and practice, the quintessential public forum for students. And the unconstitutionality of SMU's decision flows, in part, from this status. As the Supreme Court has observed, the reasonableness of time, place, and manner restrictions depends on "[t]he nature of a place, 'the pattern of its normal activities.'" Grayned v. City of Rockford, 408 U.S. 104, 116 (1972) (quoting Wright, The Constitution on the Campus, 22 Vand. L. Rev. 1027, 1042 (1969)). "The crucial question," the Court wrote, "is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time." Id. Given the student center's historical and contemporary usage, no one can legitimately maintain that the mock bake sale was inappropriate to its time and location.
In short, none of SMU's purported rationales pass constitutional muster. If the university truly cares about free speech rights, as Vice President for Student Affairs Jim Caswell insists that it does, then it must apologize for its egregious conduct and cease from trampling students' First Amendment freedoms in the future. Interested parties should encourage Vice President Caswell to do so before the national media exposure and condemnation from prominent First Amendment scholars affects the university's reputation.
The actual numbers are available for the rate at which the Supreme Court "slapped down" the lower courts in the last Term. The average reversal rate was 74%. The rate for the Ninth Circuit was 75% (same as the Sixth); four circuits had 100% reversal rates (Second, Fourth, Fifth & Tenth); and state supreme courts were reversed 81% of the time. In Desert Palace, Inc. v. Costa, 123 S. Ct. 2148 (2003), the Ninth Circuit was affirmed unanimously on an employment law issue where four other circuits had gone the other way.
Judge Hawkins's defense echoes similar remarks made by Professor Erwin Chermerinsky in the Washington Post.
One can only assume that Judge Hawkins's statistics reference the reversal rate for each circuit as a function of the cases that went to the Supreme Court solely from the Circuit in question. In other words, these reversal rates do not account for the raw numbers. Why is this important? Well, because if the Supreme Court takes ten cases from Circuit "A" and reverses seven of them and only one case from Circuit "B" and reverses it, the respective reversal rates would be 70% and 100% respectively. But the comparison of these reversal rates really does not tell us much, does it?
No doubt, such simplistic comparisons also fail to account for numerous other variables that an observer might want to take stock of in comparing the circuits (e.g., summary reversals, whether the reversed court's holding was at variance with the caselaw of the other circuits, how divided the High Court was, if it all, in reversing, etc.). Accordingly, I am not certain that flat statistical comparisons are likely to tell us what we want to know when we compare the circuits. At the very least, one has to concede that comparative rates of reversal do not tell the whole story.
But to the extent that one might rely on such statistics, I do not believe that Judge Hawkin's numbers reflect the reality of the situation. They certainly do not address the nature of the criticism that is being leveled at the Ninth Circuit. Consider, for example, this editorial in the San Francisco Chronicle co-authored by the public policy director of and an attorney employed by the Criminal Justice Legal Foundation. In it, the authors write:
Of 72 cases decided by the U.S. Supreme Court in the 2002-03 term, 28 of them were criminal cases or directly related to issues of criminal law. Ten of these 28 were from the Ninth Circuit and all 10 were reversed. That means the Supreme Court reversed the Ninth Circuit 100 percent of the time when considering criminal cases. The Supreme Court had to expend more than one third of its attention in criminal law just curing judicial defects from the Ninth. Two of these cases were reversed summarily, meaning the decisions were so obviously wrong that the high court did not even need to hear oral argument.
By comparison, the Supreme Court took 10 criminal cases from the remaining 10 U.S. circuit courts of appeal and reversed nine of them. From state courts, the Supreme Court took eight criminal cases, reversing five. While these reversal rates are nearly as high, bear in mind that the cases came from the rest of the nation. The Ninth Circuit contributes as much trouble as all the other circuits—and more than all the states combined.
* * *
While other circuits have had cases reversed, none have even come close to the magnitude of 10 for 10. The Supreme Court took no criminal cases from the First, Third, Tenth or Eleventh circuits. The court took only one criminal case from each of the Fourth, Seventh and Eighth circuits and two criminal cases each from the Second, Fifth and Sixth circuits. Evidently, all the other circuit courts of appeals are deciding criminal cases with legal consistency. It is the Ninth that is so frequently rewriting criminal law that the Supreme Court must step in and correct the problems.
Even in defending the Ninth Circuit from the reversal rap, Professor Vikram Amar had to concede that the numbers look bad:
More important, the 9th Circuit also tends to be reversed unanimously. In one year alone (1996-97), the Supreme Court disagreed with the 9th Circuit 9 to 0 in at least 16 cases. (The Supreme Court's entire yearly docket is under 100 cases.) In the fall of 2002, it repudiated the 9th Circuit unanimously in three summary reversals in a single day—an unprecedented slap.
All these 9-0 reversals mean that 9th Circuit opinions are failing to attract support from either conservative Antonin Scalia-types on the Supreme Court or its more liberal John Paul Stevens-types. How can such a high and decisive reversal rate be explained? . . .
Amar has been quoted to the same effect elsewhere. Likewise, in 2001, Professor John Eastman also noted the frequency with which the Ninth Circuit was being unanimously or nearly unanimously reversed by the Supreme Court.
Again, as I indicated above, I am not certain how much statistics can tell us in this matter. And even if we could agree on the numbers, I am not certain that we would necessarily explain them in the same fashion. That is, knowing the relevant numbers is not the same thing as knowing why the numbers are what they are. But I do know that Judge Hawkins's argument doesn't support the desired conclusion. Nor is it likely to placate the Ninth Circuit's detractors. Indeed, the ease with which Judge Hawkins's argument may be overcome will only encourage the critics.
Howard Bashman continues to post reader feedback on this topic. Among the more interesting ones is an e-mail from someone at the University of Oregon Law School, who helpfully provides a link to statistics that confirm the importance of looking at the raw numbers in order to understand the complaints lodged against the Ninth Circuit.
There are already two very nice comments to this post that help demonstrate the limits of the sort of statistics that are bandied about regarding the Ninth Circuit. Lest I be misunderstood, allow me to clarify the nature of my original post. I'm not maintaining that the critics of the Ninth Circuit's record are correct. What I am contending is that (a) Judge Hawkins's defense of the Ninth Circuit does not hold water, and (b) the statistical criticism of the circuit is more sophisticated than the judge's defense implies. Although I do not intend disrespect toward Judge Hawkins, his argument is not respectable inasmuch as it fails to understand or address the critics' contentions.
That having been said, my post and the two existing comments also provide ample reason for questioning the validity of the statistics cited by the Ninth Circuit's critics. Although their statistics are intriguing, it is obvious that they provide an incomplete picture. The real question is, "How incomplete?"
Some time ago, I got into fisticuffs with Stuart Buck over the meaning (or meaninglessness, as I saw it) of certain sentencing-related statistics. The lesson that I took away from that exchange is that it is very difficult to marshal a statistical case for a proposition, because the statistics involved are seldom as complex as the issues that they attempt to address. People cite numbers as a way of asserting that their arguments are mathematically provable and beyond dispute. Unfortunately, all too often these people mistake matters of differential calculus for simple arithmetic.
He is so known for his lawsuits that his critics point out that Klayman has even sued his mother. Klayman said the suit was to settle a family monetary dispute. He said his mother suffers from Alzheimer's disease and is a "innocent victim'' in the family fight.
"I love my mother,'' he added.
* * *
Klayman said he supports President George Bush and Cheney and voted for them, although he has since sued Cheney twice.
Klayman's explanation of his lawsuit against his mother does not quite gel with a contemporaneous account penned by Slate's Jacob Weisberg. Discussing a fax circulated by Klayman, Weisberg writes:
The unhinged prose that followed responded to an item filed by Newsweek reporter Daniel Klaidman. Klayman did not dispute the fact that he is suing his mother, Shirley Feinberg. He claims his mom won't pay him back $50,000 he spent on private nurses for her mother, his grandmother, Yetta Goldberg, who died last August at 89. He did not want this suit to become public, but the Clintonites, he asserted, learned about it and leaked word to Newsweek. . . .
It turned out that Klayman's own brother had gone to the press with the story rather than Clintonites. Weisberg reported that Klayman had brought the suit in the name of a collection agency that he owned rather than filing in his own name.
The AP and others should be careful what they report, however. Klayman has sued more than one journalist whose reporting was perceived (by Klayman) to be defamatory or as portraying Klayman in a false light. The Judicial Watch website provides the text of complaints against David Segal of The Washington Post and Harvey Berkman of The National Law Journal. Klayman also complained of FOX News Channel's coverage of the suits, stating that "it is clear that Fox News is now on the run and is heading 'establishment mainstream left.'"
The Court of Appeals for the District of Columbia affirmed the dismissal of the suit against Segal for failure to state a claim upon which relief may be granted. Klayman v. Segal, 783 A.2d 607, 614-19 (D.C. 2001). Interestingly, the Judicial Watch site does not appear to inform readers of this result; nor does it appear to inform readers of the outcome of the suit against Berkman. The Berkman suit does not appear to be available on Westlaw.
. . . According to the Washington Post, Klayman was cited in a 1989 case for filing a "frivolous" motion and ordered to pay his opponent's legal fees. The sanctions were later dropped after a settlement was reached.
In a 1992 case, the Washington Post reported, a federal judge in California ordered Klayman to pay some of his opponent's legal fees and took the unusual step of permanently banning Klayman from his courtroom. The Post quoted Klayman, who is Jewish, as saying the judge was anti-Semitic. But the paper also noted that an appeals court struck down Klayman's appeal, ruling he had "taken considerable liberties with the record and mischaracterized statements therein."
The Post also reported that in 1996, a federal judge in New York fined Klayman $25,000 "for making unsubstantiated claims." The sanction was overturned on appeal, but according to the Post, the court severely criticized Klayman for "inaccurate characterizations for the record and comments that we consider entirely inappropriate."
Broder also relays the fact that Klayman suggested that former Commerce Secretary Ron Brown's untimely death may have been less than accidental:
Klayman, a regular guest on television news and talk shows like CNN's "Crossfire" and MSNBC's "Internight," also propounds the theory that Brown, who died in a plane crash in Bosnia in April 1996, may have been murdered because of his alleged knowledge of Clinton campaign finance scandals.
This claim is borne out by Judicial Watch's website. Weisberg's aforementioned article quotes Klayman as once suggesting that "the killer was 'perhaps the president himself.'" Klayman has likewise evinced doubts that Vince Foster's death was a suicide.
Some stories really do not need any commentary, do they?
Killed were Julia Quezada, 3; John Esthefan Rubio, 1; and 2-month-old Mary Jane Rubio.
Both [father John] Rubio and [Angela] Camacho, the mother of the children, have pleaded innocent to capital murder charges. Prosecutors said they plan to seek the death penalty.
All three children were stabbed and suffocated; one also had more than 20 stab wounds, and another had broken ribs and vertebrae, autopsy reports showed.
Police said the couple told them they killed the children because they were destitute and because Camacho thought the children were possessed.
* * *
Rubio's lawyer, Nat Perez, has said his client is insane.
You don't say.
I'm not sure that Mr. Perez's argument will make much headway. Obtaining a verdict of not guilty by reason of insanity is a very difficult task in Texas. Not long ago, a Texas jury rejected a claim of insanity in another child-murder case that garnered far more national attention.
The difficulty in mounting such a defense may stem as much from social mores as from the law itself. We Texans have a reputation for stern justice. Besides, everyone in the American Southwest knows that concerned parents do not kill their children; they cage them.
As a lawyer, I can, of course, intellectually distinguish between insanity as a legal standard and our everyday assessments of sanity outside of the courtroom. But it is nonetheless difficult to understand the crimes referenced above without recourse to insanity. I am a firm believer in good and evil, and I think that many criminals may be accurately defined as the latter. But in these particular cases, "evil," as a concept, seems to be lacking in explanatory power. Reprehensible as evil motives might be, I can grasp them. But these cases seem unfathomable.
Am I the only one who is struck by what little coverage Afghanistan receives in the American media? Or have I just been missing stories that were there all along? It seems to me that Afghanistan has largely been eclipsed by Iraq. The administration does appear to have earmarked funds for continuing military operations and reconstruction efforts in Afghanistan; however, it also seems clear that these funds are (a) dwarfed by those that will be spent in Iraq and (b) regarded as insufficient in both cases. Although I have generally looked upon both military campaigns favorably, it is beginning to look as if we have bitten off more than we are willing to chew.
In 1995, Congress passed the Solomon amendment, named for its sponsor, Representative Gerald B. H. Solomon of New York, barring disbursement of money from the Departments of Defense, Transportation, Health and Human Services, Education and some other federal agencies to any college or university that obstructed campus recruiting by the military.
The suit filed yesterday argues that the Solomon amendment violates law schools' First Amendment rights to academic freedom.
Interestingly, the schools have avoided being name plaintiffs in their own right. Instead, the suit has been filed by organizational plaintiffs, like the Society of American Law Teachers. Boston College Law School Professor Kent Greenfield is reported as claiming that none of the schools in question would join the suit in their own name for fear of retaliation.
I am chagrined by this development. Reasonable people may disagree about the merits of the military's position on homosexuals. As a policy, "Don't Ask, Don't Tell, Don't Harass" pleases no one, not the proponents of the former ban on service by gays and not those who desire that there be no such policy regarding gays. However, it is not clear to me why law schools would seek to forbid a potential governmental employer from campus. Indeed, from an employment perspective, this action seems to be an outright disservice to the students involved. Presumably, these grown adults are capable of making their own political and moral judgments about the military's policy on gays and will interview or not accordingly.
The notion that this lawsuit is just so much political activism is reinforced by the involvment of plaintiffs like the Society of American Law Teachers. Notwithstanding its innocuous moniker, a quick perusal of SALT's website readily reveals that it has an ideological axe to grind. It proclaims itself, for example, "committed to ensuring that legal education and the legal profession engage the task of promoting social justice." Social justice, of course, generally encompasses any number of leftist socio-political causes. Not surprisingly then, SALT opposes everything from Proposition 209 to conservative welfare reform, all in the name of civil rights:
While we commit ourselves to the long-term, formidable task of combating racism, we also acknowledge the connections among all forms of oppression that exclude us from equal citizenship. Moreover, attacks on affirmative action, immigration, welfare, and gay and lesbian equality must be understood as interrelated, mean-spirited policies of exclusion. Therefore, each struggle against Prop 209, Prop 187, the “Welfare-to-Work” law, or the Defense of Marriage Act must be seen as part of a larger movement for social transformation and justice.
SALT also marched in the Washington, D.C. peace rally organized by ANSWER in opposition to the war in Iraq. ANSWER is, of course, a front for the Workers World Party, which, among other things, is an apologist for the Tienanmen Square Massacre and Kim Jong Il's regime. No doubt, members of SALT would think it terribly unfair to be tarred in this manner with guilt by association. Ironically, however, it is guilt by association that serves as the organization's rationale for opposing military recruiting on campus:
. . .[W]e believe . . . that law schools should not themselves be complicit in the discriminatory actions of the military or any other employers.
Presumably then, SALT would oppose the presence of any potential employer who disagreed with its policy positions, as it feels that all of its policies are interrelated and targeted toward combatting racism and discrimination. What I think SALT fails to appreciate is that it is addressing contentious, divisive issues that reasonable folks may disagree about. Indeed, it would seem to me that SALT is generally arguing a minority position, given that Propositions 187 and 209, DOMA, and "Don't Ask, Don't Tell, Don't Harass" were all enacted within the framework of democratically elected governments.
The democratic nature of these acts does not ipso facto render them constitutionally valid or wise as a matter of policy by any means. And SALT is well within its rights to oppose each and every one of them. What I fail to grasp is why SALT thinks that it effectively should be making such decisions for law students.
"The acceptance of evolution is responsible for the degeneration of morals in society," said gospel preacher Mac Deaver. "People are shooting at each other on the highway. Kids are being taught that they came from dirt. There is no accountability; they say, 'I'm just a product of evolutionary theory. Evolution made me what I am, can't help it.'"
The emphasis is mine. I have been unable to locate the exact source of these comments, but this Houston Chronicle story reports Deaver making similar statements.
As an earnest Christian, I almost fell out of my chair laughing when I saw Mac Deaver's statement. Do you suppose Deaver has ever read the Bible that he is thumping?
And the Lord God formed Adam out of the soil of the earth, and breathed into his nostrils the breath of life; and man became a living being.
So what changed my mind anyway? Well, my mind has not changed. I am inclined to think that the flaws and costs of comments, particularly on high-traffic blogs, greatly outweigh the benefits. Even proponents of the virtues of comments have to admit that the value of comments is debatable. Arnold Kling has acknowledged as much, writing that:
I like receiving feedback on my TCS essays, and I like making comments and giving feedback on other web logs and essays. To me, this is one of the best features of the Internet—it provides a much more open forum than broadcast media.
I must admit, however, that the noise to signal ratio can be quite high in the "comments" or "feedback" sections of web sites.
Kling then goes on to note the predilection for ad hominem attacks in comments sections and suggests a solution. The problem with Kling's solution—self restraint on the part of commentors—is that it depends on a quality (i.e., good will) that the parties in question clearly lack.
For this reason, I think that Baude's request deserves consideration. There are also some unstated premises that are worth exploring in this debate. For example, Baude conceives of blogging as journalism by other means, and thinks that the blogosphere would be better served by discretionary publication of letters-to-the-editor a la Andrew Sullivan's feedback section.
At any rate, the fate of comments on this blog remains uncertain. Thus far, I am not displeased with their presence. The comments here have been rather benign to date. Perhaps, this is a function of the limited traffic and readership that a boutique blawg like mine enjoys. Or maybe I am just enjoying a brief honeymoon period.
Perhaps, the real distinction is between blawgs and blogs in general? Although I stray from the blawgosphere and into the blogosphere on occasion, most of my interaction is with the former. Could it be that lawyers by training are more readily given to argumentation designed to persuade rather than excoriation? Has anyone engaged in any sort of comparison between blawgs and, say, their political-oriented counterparts, for example?This is all very much "inside baseball," of course. But any interested parties are welcome to, ahem, comment.
I am utterly unconcerned with having any sort of personal life outside of the office. I would work 100 hours a week, 52 weeks a year if required. I do not feel that collecting fees for 3000 hours of work (not merely "billing" but "collecting") my first year would be unrealistic, so long as the work is available. . . . I will work nights, weekends, holidays, vacations, whatever. If my mother's funeral was the day of a key deposition, I would do the eulogy via teleconference after the deposition. If my wedding was on the date of a key trial, the wedding would be postponed. If the wife to be did not like it, I would inform her that work comes before EVERYTHING ELSE and that if she does not like this, she is free to find a competing husband. Please understand that if I do not see the light of day (arrive at work before the sun comes out, go home after it is pitch dark) for the next 30 years, if I have to eat all meals in the office or even sleep in the office, I would accept that opportunity eagerly, with open arms and with a big smile on my face.
And said applicant is willing to do all this for a starting base salary of $75,000 no less.
I would provide a link to the resume but since its pdf I can't erase his name and I think it's bad enough that all these big firms are so lax as to breach the confidentiality of the resumes they receive as to allow it to be circulated in the first place.
In fact, the cover letter is addressed to Wolff & Samson, PC so I think we can start allaying blame for such a breach there.
Is this a breach of confidentiality? Are resumes delivered in pursuit of employment otherwise confidential? If so, are potential employers' duties legal or ethical in nature? Or is this a matter of etiquette?
. . . How would she [an image consultant] describe interview clothes? "Like being out on a date . . . going to church." But Catholic priests should avoid wearing the beanies and sailor suits that this might imply. If the pockets are sewn up so it seems like you can't open them, don't open them. "Suits without pockets are more formal; but if you already have a suit that has pockets, don't worry, you don't need to remove them." That was the first time I couldn't stop laughing. "Your jacket should definitely have armholes." That was the second. "Single-breasted versus double-breasted is especially an issue for some women." That, childishly enough, was the third. "Don't wear clothes that make you look like an alien." "Women have more choices than men as far as zippers." They can be open, or closed, depending on the message you want to send.
The quoted language is represented to be the literal advice given. At $29,500 in tuition per year, Harvard Law School students are really getting their money's worth.
(Link via JD2B.)
In legal writing (but seemingly nowhere else), one often finds the curious assertion that somebody was "hoist by his own petard."
If you're not sure what that means, read this.
It will be amusing now to watch some elements of the right try desparately to extricate themselves from the equal protection web the Supreme Court spun for them in Bush v. Gore.
I'm finding it hard not to snicker.
The problem with this train of thought is that, stoked with too much coal, it runs right off the rails. It assumes without argument that the situation in California in 2003 is reminiscent of Florida in 2000. I think not for reasons that Professor Vikram Amar ably elaborates in a Findlaw column today.
Amar makes two critical points. First, no one truly knows what Bush v. Gore means at present:
For starters, it's important to realize that Bush v. Gore is itself a hard decision to understand. Even defenders of the Supreme Court's 2000 action would have to admit that the Court's opinion, due to the tremendous time pressure under which it was written or for other reasons entirely, was no model of judicial clarity or craftsmanship.
Arguments are there to be made regarding the case's meaning and its proper application. Bush v. Gore has certainly been the subject of lively debate in legal academia. But there is little that is straightforward about the decision. One cannot simply invoke the case's style, proclaim Q.E.D., and then snicker.
Secondly, Amar accurately points out that the factual scenario presented by the California recall is starkly different in multiple respects.
One is that the errors in counting votes in Florida were being made by people, not machines. Why might that matter? Because people who count votes by hand may make mistakes in counting the votes not just because they may be defective counters, but also because they may be politically motivated.
It is hard to completely understand Bush v. Gore without appreciating the concern shared by many people in the country that Democratic and Republican county elections officials might try to take advantage of the unfettered discretion state law gave them to hand count votes to get to a particular result. Machine mistakes, even ones that are predictably skewed in favor of or against particular groups or parties, may be different than mistakes made by individual persons who are motivated to make those mistakes on purpose.
* * *
Nor is it just that the votes in Florida were being hand-counted (as opposed to machine-counted in California). They were being recounted in Florida. That is crucial, because by the time of a recount—when the Supreme Court stepped in allegedly to promote fairness—we all knew that every miscounted vote (whether miscounted by design or by negligence) was a big deal, because we all knew the margin of victory was going to be a few hundred votes one way or another.
So the problem was not just manipulable standards that various counties were using; it was that manipulators knew exactly how many votes they needed to steal to tip the balance.
Amar also tellingly notes that the Ninth Circuit's decision in Southwestern Voter Registration Educ. Project v. Shelley turns Bush v. Gore on its head in one key respect: the legal remedy granted.
According to the Ninth Circuit, extending that 180-day outer limit to 225 or so days (the time from the July certification until the March election, the earliest time punch card machines could be replaced) is no big deal, because the choice between 180 and 225 days is "arbitrary."
* * *
But what is not arbitrary is the value of sticking to a pre-agreed upon schedule, around which everyone has arranged their financial and emotional commitments. . . .
Indeed, both the Court and Chief Justice Rehnquist in his concurrence joined by Justices Scalia and Thomas stressed compliance with predetermined electoral timelines in Bush v. Gore. 531 U.S. 98, 111 (2000); id. at 116-22 (Rehnquist, C.J., concurring). In contrast, the Ninth Circuit's decision discards a prearranged electoral schedule.
In short, there is nothing self-evidently right about the Ninth Circuit's application of Bush v. Gore in the California recall case. Others, like Professor Brett Marston, for example, have conceded as much, noting that:
[The Ninth Circuit] is only extending the equal protection arguments that the per curiam decision pushed in Bush v. Gore . . . (emphasis added).
Yet Professor Marston offers no explanation as to why Bush v. Gore ought to be extended on these facts and instead condemns conservatives who disagree for being results-oriented:
The lesson, I think, is that conservatives try to claim the moral high ground with respect to constitutional principle, but when it comes to defending a decision whose results they like (Bush v. Gore), or attacking a decision the results of which they don't like (Southwest Voter), principle goes out the window. The main thrust of conservative commentary is nothing more exalted than decrying judicial tyranny when courts hand down decisions that they don't like.
The difficulty with this legal realist response to these decisions is that it is self-defeating. Marston's analysis evinces skepticism regarding the Court's decision in Bush v. Gore as an original matter. But legal realism is a two-way street. Assuming the truth of Martson's conclusion for the sake of argument, why should I not just assume that his and Professor Muller's views of Bush v. Gore and Southwestern Voter are not likewise political positions rather than legal ones? Legal realism is corrosive in this manner.
Here’s an idea, suggested to me by a government lawyer, for how Congress can help reign in activist judges: The next time the judicial appropriations bill come around, don’t include any money for law clerks. The activist approach to judging is much more reliant on and influenced by twentysomething students fresh out of the academy than the interpretivist approach, for which the judge’s main job is simply to read the Constitution or statute and see if something is in there or not.
(Link via Howard Bashman.)
As a graduate of Yale Law School and a former law clerk (in 1981-82 for Judge Malcolm R. Wilkey of the D.C. Circuit), Clegg ought to know better than to circulate such pablum. Yet in Clegg's fevered imagination, law clerks are apparently the equivalent of Grima Wormtongue.
Clegg is not the only one to suggest as much. As detailed by Professor David M. O'Brien, Professor Edward Lazarus has made similar assertions regarding the baleful influence of judicial clerks:
Lazarus’s most stinging charges center on the Court’s conduct of its business. Portraying the Court as "clerk driven" and composed of "editor Justices," Lazarus asserts that the justices read virtually none of the petitions arriving at the Court and that "most of the text of most Court opinions—the key words and phrases that make up the crux of a ruling—has been chosen and crafted by clerks." Pause here and elsewhere should be given, though, for the clerks do not write on entirely clean slates and their drafts must pass muster with the justices. So too, Lazarus blasts the justices for opinions that are "fundamentally dishonest, either by design or through gross negligence." That’s rather ironic, since a main contention throughout is that clerks carry the burden of opinion writing.
Interestingly, Lazarus is also a Yale Law School graduate and a former Supreme Court law clerk (in 1988-89 for Justice Blackmun). Other notable former Supreme Court clerks have made similar allegations in the past. See, e.g., Kenneth W. Starr, Supreme Court Needs a Management Revolt, Wall Street Journal, Oct. 13, 1993, at A23; Kenneth W. Starr, Trivial Pusuits at the Supreme Court, Wall Street Journal, Oct. 16, 1993, at A17; William H. Rehnquist, Who Writes Decisions of the Supreme Court?, U.S. News & World Report, Dec. 13, 1957, at 74-75. More recently, attorney William Dyer, himself a former clerk (in 1980-81 for Judge Carolyn Dineen King of the Fifth Circuit), attributed the Ninth Circuit's recall-related decision to "a very smart, very liberal, very out-of-touch-with-reality law clerk who's just joined the staff of one of these judges after a law school education that included law review service (and possibly editorship)."
The problem with such assertions is that they run counter to common sense. Ask yourself, is it really likely that newly-minted lawyers exert tremendous influence over federal judges who generally have two decades of legal experience prior to ascending to the bench? Or is the influence more likely to run the in the opposite direction?
A judicial clerk often fulfills any number of roles in chambers: advisor, drafter, and editor, among others. So a clerk's position is not without influence. But clerks are not courtroom kingmakers. Judicial chambers are not reminiscent of the Palace of Oz: peering behind the robes of federal judges will not reveal that the judiciary is run by humble clerks. Such a notion is equivalent to arguing that partners in firms are controlled by their associates.
The increasingly bitter tone of the Ontario campaign took a surreal turn Friday when a press release from the Tory election machine labelled Liberal Leader Dalton McGuinty a pet-eating alien.
The bizarre insult, contained in a statement e-mailed to media representatives shortly before lunchtime, immediately deflected attention from the health-care agenda that the Conservatives had hoped to pitch Friday.
"Dalton McGuinty," the statement said. "He's an evil reptilian kitten-eater from another planet."
* * *
Mr. McGuinty smiled broadly when asked to confirm or deny that he eats small pets and comes from outer space.
"I love kittens, and I like puppies too," he said.
This crazy accusation almost makes the Bush=Hitler theme seem sober and circumspect.
Last year, Connecticut—through a law passed by the Legislature—became the 17th state to allow such court orders, according to family law specialist Laura Morgan of Charlottesville, Virginia.
* * *
"States are all over the place on this issue," said Sandra Morris, president of the American Academy of Matrimonial Lawyers. "In many situations, it's very tragic—the divorced parents don't do what they would have done if they had stayed together, and the children are pretty much cut off (from any support)."
* * *
"Children of divorced parents are less likely to go to college, less likely to go to prestigious schools, and generally are less economically successful than their parents," she said. "As a matter of public policy, we have to decide if that's what we want."
Married parents could generally never be ordered to finance their childrens' college education, at least not under the prevailing legal order. And so it should be for divorced parents as well. Whatever one's moral obligations to his or her children might be, the notion that one has a legal duty to finance the voluntary conduct of another adult (i.e., the decision to attend a university) is simply astounding. From what little the CNN story conveys, it would appear that divorced children have no duty to mitigate such costs either, notwithstanding the fact that parents quite literally may not legally constrain their adult childrens' decision-making. For example, an adult child apparently has no obligation to work part-time to finance his or her own education or to attend the least costly institution available.One state high court has bucked this trend. In Curtis v. Kline, 666 A.2d 265 (Pa. 1995), the Pennsylvania Supreme Court declared an act requiring such college financing to be unconstitutional under the Fourteenth Amendment's Equal Protection Clause. It did expressly leave as an open question the constitutionality of a statute that required all parents, married and divorced alike, to finance the college educations of their adult children. Id. at 270 n.5.
[r]ejected proposed RPC 1.8(j), which would have explicitly prohibited sexual relations between a lawyer and client in the absence of a pre-existing consensual relationship. As noted under that RPC, the Court agreed with the State Bar Association that the proposal was too broad and that inappropriate sexual contact can be dealt with through existing rules, such as RPC 8.4[.]
Giacalone concurs with this rejection and I am in agreement. There's nothing about attorney-client romantic relationships that cannot be addressed via the existing rules pertaining to conflicts of interest, misconduct, and fiduciary duty.
How does Islam guarantee human rights?
Freedom of conscience is laid down by the Quran itself: 'There is no compulsion in religion.'
The verse is taken from Al-Baqarah (Qur'an 2:256).
Of course, the Saudi pamphlet makes no mention of Wahibbism. Nor does it mention the al-Mutawa'een, the kingdom's morality police. Saudi Arabia omits these topics for good reason. Whatever Islam, rightly understood, might contribute to human rights, it is of little use in the kingdom itself.
Of course, there is little reason for Saudi Arabia to acknowledge its failings when our own government doesn't either:
The State Department failed to designate Saudi Arabia a Country of Particular Concern despite concluding in its most recent International Religious Freedom Report that "religious freedom does not exist" there. The government forbids all demonstration of religious faith that is not consistent with the state-sanctioned interpretation of the Sunni branch of Islam. Shi'a Muslims face severe discrimination. All public non-Muslim religious activities are prohibited. The distribution of Bibles is banned. Many Christians have been imprisoned or deported for practicing their faith.
Most recently, the al-Mutawa'een has come to the blogosphere's attention due to its laughable anti-Barbie antics. This is a shame, because the Saudi religious police are no laughing matter. See for yourself: a regional branch of the police force has established a website, which The Middle East Media Research Institute examined. Among other things:
The Authority's website posted the text of a book written by Dr. Fadhel Alha of the Department of Islamic Preaching and Communications at the University of Riyadh, which discusses the Authority's activities. Dr. Alha wrote: "There are those who say that we must leave people alone and not interfere in personal matters of virtue from which they refrain, because this conflicts with their individual freedom which is set out in Islam. Those preaching this approach quote the words of Allah in the Koran: 'There is no coercion in religion…'"
"First of all, there is no such thing as 'personal freedom.' It is a lie. We would like to ask those who argue in this matter: Have you found personal freedom in the east of the land or in its west? In Eastern or Western regimes? None whatsoever, neither here nor there. Man is required to obey rules and regulations against his will everywhere. Is a man permitted, in the East or the West, to cross the street at a red light? In the West, is a man permitted to build a house with his own money . . . without observing the municipality's regulations? In the East, the situation is even more clear, and he has no right to own a house at all."
"Second, the personal freedom granted by Islam to the Muslims lies in [Allah's] liberating them from enslavement to men. This does not mean that man is liberated from enslavement to the God of these men . . ."
"Third, the verse 'There is no coercion in religion' does not mean that everyone can do what they want and refrain from doing what they don't want, or that no one is entitled to require them to do the good that they have abandoned or to refrain from the evil that they do. The meaning of the verse . . . is that a person must not be forced to convert to Islam—and this too does not concern all non-Muslims, but only the People of the Book [i.e. Jews and Christians], [regarding] the Bedouin polytheist idol worshippers, you must either force them to convert to Islam, or fight them."
The emphasis is mine. Contemplate the enormity of the bolded language for a moment. Dr. Alha's statement purports not just to be descriptive but normative as well. A Saudi governmental entity endorsed this language.
Two observations come to mind. The first concerns the meaning of the words freedom and coercion. Upon reading Alha's interpretation, I can only paraphrase Inigo Montoya from The Princess Bride: Alha keeps using these words. I do not think they mean what he thinks they mean.
Secondly and more importantly, even assuming arguendo that Alha has a theological leg to stand on, Saudi Arabia cannot have it both ways. In a document printed in English for non-Muslims, the Saudi government maintains that Qur'an 2:256 is a guarantor of human rights. On a governmental website written in Arabic, a state agency approvingly excerpts an argument that effectively maintains that there is no such thing as human rights.
The government of Saudi Arabia dissembles because it must. For it to be honest about what it is would be an act of self-condemnation. It is less clear to me why our government finds it difficult to be honest about Saudi Arabia.
One thing that students at many of the surveyed Texas law schools had in common was the low regard in which they hold their respective Career Services Offices (CSOs). For example, a Baylor Law School student stated that:
"Career Services does a great job of placing the top 15 percent of our class," says one 3L. "[The] only problem is that those are the students who can place themselves. Everyone else gets help when time permits. If you are in the top of the class and want to work at one of the big firms, Career Services will gladly take credit for helping you out. If not, the general attitude is 'keep trying and good luck.' "
Multiple SMU School of Law students apparently had similar complaints. A student at South Texas College of Law opined that even good students at his school were getting little assistance from their CSO:
"The only complaint I have about this school is the career services," says a 1L. "I know that I will have to find my own job without any help from them. That is quite scary, and I am in the top 33 percent of the class."
I can understand the frustration of these students. When I was a student I felt much the same way, and I had a relatively impressive academic record. But, on reflection, I have come to believe that most criticism leveled at CSOs is unjustified.
Students have a tendency to let the on-campus interviews hosted by CSOs serve as a substitute for actual job-hunting. Few of my student peers were terribly proactive about finding a job, at least as an initial matter. Too many students aimlessly gravitate toward the on-campus interviews because they are easy, not because they have a preexisting interest in the employers who are interviewing.
The truth is that CSOs, at best, provide you with additional resources to research employment opportunities. But you have to do the legwork. I went to a law school with a large student body, but the CSO's library was one of the lonelier campus locales.
I also understand the frustrations of those students who have not been beatified by membership on their school's flagship law review, for example. There are a lot of very bright people in law school, so being outside of, say, the top ten percent is hardly a mark of ineptitude or inaptitude. But students whose grades are unimpressive need to be clear-eyed about the task they face: in the interview process, they are essentially attempting to market a comparatively inferior product. Prestigious employers are going to focus on grades to a very large extent in making their initial cut as to who interviews and who does not. This is the reality of the situation.
Most students, by definition, are not near the top of their class. So many, if not most, are going to have to work harder at getting hired than their more academically successful peers. Yet the vast majority of law school graduates find gainful employment. Some people just have to work a little harder to find a position. In a meritocracy, this is normal; it is to be expected. Those who find themselves in this position simply need to pound the pavement harder than others.
No doubt, this assessment will raise hackles. But my advice is borne of my own CSO experience. I had an absolutely disastrous time in on-campus interviews my second year, which I relied on to the exclusion of all else. I did not independently search for jobs even half-heartedly, let alone with zeal. The result was that I spent the summer between my second and third years underemployed.
So if you think that your CSO will not get you a job, you are right. CSOs do not get anyone a job in reality. The top students would find their way to the prestigious employers without any career services. The sole person responsible for ensuring that you are gainfully employed is you.
Thanks. Several others made the process possible and I am grateful for their assistance. Dean Esmay initiated the process with his avowed jihad on Blog*Spot, which planted the seed in my head, and he also suggested an alternative hosting arrangement. A Stop on the Railroad, Neologasm, and the MT Support Forum proved to be invaluable resources as well. This site would not exist without them.
Blogger & Blog*Spot. Unlike many who have made the switch from Blogger/Blog*Spot to other softwares and hosts, I really do not have unkind words for the former. The Saturday before last, Blog*Spot was inaccessible for a portion of the day and this not altogether atypical circumstance finally overcame my inertia. But flaws and all, I think that Blogger/Blog*Spot are pretty decent. They allowed me to enter the blogosphere at no cost, and one can hardly complain about free access. While both services retain substantial shortcomings, they progressively got better during my tenure at my former site.
I left Blogger/Blog*Spot for something better, but I would never have begun blogging without them. They were an inviting wading pool that allowed me to get comfortable enough in the water to head over to the deep end.
A New Look. The new look is basically a slightly modified version of the Georgia Blue Template. Little has changed other than the color scheme. For those looking to tweak their site's colors, you may find this helpful. No doubt, further modifications will be made in the days to come.
Mon Dieu! Comments?!? Notwithstanding my lengthy commentaries contra weblog comment features, see Part I and Part II, I have left the comment function active on this site. This struck me as an excellent opportunity to test out the merits of comments first-hand. I have also begun to notice that the longer I am on the web, the more spam my hotmail account receives, making it less useful as a substitute for comments. (I find that I am just getting more mail period these days.) If my surmise about the merits of comments is validated, I will discontinue them. If not, then they will remain.
Substantive Posting. Now that I have transitioned over, I expect substantive posting to resume as before. In the last week, I have noticed that my old site has received sustained traffic, notwithstanding the absence of new content. Thanks to my patient readers, and thanks to those who have linked to my old site in the last week as well. I hope that you'll all join me over here on a regular basis as well.
Professor Rasmusen is back at his university web address. He explains the situation here.
Professor Rasmusen has a lengthier post up on the controversy today. Interestingly, he defends Indiana University's conduct and maintains that the whole story was blown way out of proportion from the very beginning. He writes:
Soon the Dean's Office at my business school was getting lots of complaints about my web-log. The Dean asked me to meet him late on a Thursday afternoon to talk about it. We talked, and I offered to move my web-log off the IU computers, and to keep fairly tight-lipped, until the Dean had time to reflect and to check with the University about whether my web-log was in violation of IU policy. He checked, learned that my web-log did not violate IU policy, and called me back the next day to say that I could move my web-log back, which I did.
The student newspaper got hold of the story, and that (I imagine) alerted the local newspaper, the Associated Press, and a local radio talk show. The blogworld also learned about it. The University didn't actually shut me down, so the story isn't as big as it might have been. I haven't heard of any IU faculty members saying publicly I should be shut down (the student newspaper story "Faculty react to Web log decision" doesn't actually quote any faculty, just staff). If I remember correctly (it's hard because of the volume) I haven't gotten any emails from faculty members saying so (except perhaps one person whose signature said "PhD" but not "Professor"). There are many people calling for me to be shut down, but they are students or staff members. The IU Vice President for Student Development and Diversity wrote a student newspaper op-ed, "A teachable moment for us all," that made the good point that controversies like these are important to teach students the value of free discussion and so forth.
The emphasis is mine. It seems to me that the entire incident was, more or less, a non-story that was created by some apparently inaccurate (and irresponsible) student reporting that maintained that Rasmusen's weblog had been removed at the university's request:
Professor Eric Rasmusen, who teaches multiple courses in the Kelley School of Business, was asked to take his opinions off a University Web page by Kelley School of Business Dean Dan Dalton, Thursday.
There are, of course, people on campus who do very much desire to shut Rasmusen down. However, Dalton is apparently not among them, nor is anyone else within the administration of Indiana University. The university's reputation for academic freedom has been unnecessarily and inaccurately tarred and feathered, and I regret having unwittingly assisted in the process by relaying the bogus charges.
In the most recent issue, Judge Sparks decided to associate each award with a song and headed to the Internet for inspiration. He reports:
. . . [M]y investigation into sources of songs on the internet provided some interesting moments. One of my first searches yielded a list entitled "Worst Country Song Titles." If I had used any of these titles for an award, I would have lost my credibility—that is, you would not have believed such a song existed. I must share some examples with you . . . .
Judge Sparks then produces this list of memorable ditties:
- "How Can I Miss You If You Won't Go Away?"
- "How Can You Believe Me When I Say I Love You, When You Know I've Been A Liar All My Life?"
- "How Come Your Dog Don't Bite Nobody But Me?"
- "I Bought The Shoes That Just Walked Out On Me."
- "I Want A Beer as Cold as My Ex-Wife's Heart."
- "If You Don't Leave Me, I'll Find Someone Who Will."
- "Get Your Tongue Out Of My Mouth, Because I'm Kissing You Goodbye."
Rock n' Roll ain't got nothing on that, I suppose.
Glory be to Him who made His servant go by night from the Sacred Temple to the Farther Temple whose surroundings We have blessed, that We might show him some of Our signs. He alone hears all and observes all.
—Al-Isra' (Qur'an 17:1)
In modern times, this passage of the Qur'an is freighted with political import. The Sacred Temple is in Mecca. According to orthodox Islamic teaching the Farther Temple was located in Jerusalem. Muhammad's night journey to that destination figures in Muslim claims regarding the Judeo-Christian holyland, territory presently within Israel.
Tim Cavanaugh at Reason's Hit & Run points to this very interesting article translated by The Middle East Media Research Institute. In it, a member of the Egyptian Ministry of Culture maintains that the Farther Temple was in Medina rather than Jerusalem. The author, Ahmad Muhammad 'Arafa offers both textual and historical arguments in support of this conclusion. Interestingly, 'Arafa equates the Night Journey with the Hijra, or Flight from Mecca to Medina.
The historical record certainly supports the claim that the Farther Temple was not in Jerusalem. Indeed, it highlights the fact that the Farther Temple, or Al-Aqsa Mosque, was from the very beginning a quasi-political enterprise. Erected approximately sixty years after the death of the Prophet (circa 691-92 A.D.),
The Dome of the Rock, along with its adjoining Aqsa Mosque, constituted the first great religious building complex in the history of Islam. It marked the beginning of a new era. The time for borrowing, for adaptation, for improvisation had passed. The Umayyad caliphate was no longer a successor state of Rome and Persia, but a new universal polity. Islam was no mere successor religion of Christianity, but a new universal dispensation. The place, style, and above all the ornamentation of the Dome of the Rock reveal its purpose. The style and scale were surely intended to rival and outshine the Church of the Holy Sepulchre, with the subtle changes needed for Muslim, not Christian, piety. The place was Jerusalem, the most sacred city on earth to both the predecessor religions, Judaism and Christianity.
The choice is significant. Jerusalem is never mentioned in the Qur'an. Even the name 'Jerusalem' does not figure in early Muslim writings. When the city is mentioned at all—as for example on [Umayyad Caliph] 'Abd al-Malik's milestones—it is called Aelia, the name imposed by the Romans to desacralize the city and to obliterate its Jewish and also Christian associations. The choice of a site in Jerusalem for the first great Islamic shrine is the more remarkable. The site was the Temple Mount, the scene of major events in both Jewish and Christian sacred history. The actual spot was the rock on which, according to rabbinic tradition, Abraham had prepared to sacrifice his son, and on which in later times the Ark of the Temple had rested. This 'Abd al-Malik seemed to be saying, was the shrine of the final dispensation—the new Temple, dedicated to the religion of Abraham, replacing the Temple of Solomon, continuing the revelations vouchsafed to the Jews and Christians and correcting the errors into which they had fallen.
The polemical purpose of the shrine is reinforced by the choice of Qur'anic verses and other inscriptions that decorate the interior. One verse occurs again and again: 'God is one, without partner, without companion.' The rejection of the Christian doctrine of the Trinity is clear, and is made explicit in other inscriptions:Praise be to God, who begets no son, and has no partner in [his] dominion: nor [needs] he any to protect him from humiliation: yes, magnify him for his greatness and glory!
Another repeated inscription is the famous Sura 112 in its entirety: 'He is God, one, eternal. He does not beget, nor is he begotten, and he has no peer.' Another quotation addresses an explicit warning to the recipients of the previous revelations (Qur'an 4:171):O people of the book! Commit no excesses in your religion: and say nothing of God but the truth. Jesus Christ, the son of Mary, was indeed an apostle of God . . . Therefore believe in God and his apostles, and do not say 'Three.' Desist, and it will be better for you, for indeed God is one God, exalted above having a son . . .
Yet another inscription emphasizes the warning to the Jews and Christians of the error of their ways (Qur'an 3:18-19):God bears witness that there is no God but he, and so too the angels, those who possess knowledge, and stand firm in justice. There is no God but he, the omnipotent, the omniscient. God's religion is Islam . . . Let whoever disbelieves in the signs of God beware, for God is swift in reckoning.
The meaning of all this is at once political and religious. Only religion can justify empire. Only empire can sustain religion. Through his apostle Muhammad and his vicegerent the caliph, God has given a new dispensation and a new order to the world. In this first great religious structure dedicated to the new faith, its worldly head, the caliph 'Abd al-Malik asserted Islam's connection with the precursor religions, and at the same time made clear that the new dispensation had come to correct their errors and to supersede them.
* * *
. . . A Qur'anic verse (17:1) tells how God took the Prophet on a journey by night from the sacred mosque (in Mecca) to the farthest mosque (in Arabic, al-Masjid al-Aqsa). One early exegetical tradition places 'the farthest mosque' in heaven; another places it in Jerusalem. The latter of these interpretations came to be universally accepted by Muslims. This verse is not included among the inscriptions in the Dome fo the Rock. A conrtasting tradition, equally early, denied the sanctity of Jerusalem in Islam. According to this tradition, only Mecca and Medina are holy cities, and the veneration of the Temple Mount is a Judaizing error. The argument continued for centuries, and was only settled in comparatively modern times.
Bernard Lewis, The Middle East: A Brief History of the Last 2,000 Years 68-71 (1995).
[Jan] Frandsen, 46, her daughter [who is 14] and eight friends, one in her 70s, are suing Brevard County to overturn its antinudity ordinance, as well as two state statutes that ban displaying the female breast in public.
They're not strippers or nudists or thrill seekers. They're just convinced the laws violate their FourteenthAmendment guarantees of due process and equal protection.
"Because of having to cover their breasts in places and at times when men do not cover their breasts," the suit states, "plaintiffs and all other women and girls are afflicted with a badge of second-class citizenship."
Well, they may not be "strippers or nudists or thrill seekers," but they are odd to say the least. The Sentinel also reports that:
The county ordinance was passed, in part, in response to nude sunbathing at Playalinda Beach in the Canaveral National Seashore. That's where Frandsen's husband, Marvin Frandsen, was arrested during a 1995 nude protest of the ordinance.
* * *
Asked whether she expects to win the suit, she said, "If I didn't believe that, I wouldn't be trying. A change has to start somewhere, and this is a very good place to start. Most of us will never give up until the day we die."
People get worked up about the strangest things. Or, rather, strange people get worked up about the strangest things.
Nonetheless, Tainted Law concludes that "they are probably right." I think that he's all wet. And so do the federal courts of appeals. See Ways v. City of Lincoln, 331 F.3d 596, 600 (8th Cir. 2003); Buzzetti v. City of New York, 140 F.3d 134, 141-44 (2d Cir. 1998); Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1256-57 (5th Cir. 1995); United States v. Biocic, 928 F.2d 112, 114-16 (4th Cir. 1991).
In discussing the apparent transition to active and open consideration of a nominee's political ideology, Solum makes this notable observation:
But here is the thing about ideological selection of judges. If judicial selection is all about political ideology, there is a cost to be paid. Ideological judges are legal realists. They vote on the basis of their political preferences and not on the basis of the law. Ideological judges can be highly skilled in the craft of judging, but this is unlikely. If you see the law as a mere instrument of power, you are unlikely to care enough about the law to spend the long hours required to achieve true mastery of intricate and interconnected web of legal doctrine. Moreover, ideological judges are not likely to possess what I call the judicial virtues. And in particular, ideological judges lack the virtue of justice—the dispositon to decide according to law and to avoid the temptation of using judicial power to remake the law as one wishes it to be.
* * *
Both sides now seem committed to a judicial selection process that concieves of the federal judiciary as the third political branch. Not the least dangersous branch, but the most dangerous branch. The branch that carries out a political agenda with the security of life tenure and the power of final decision about Constitutional questions.
The difficulty, of course, is that in practice the parties fervently believe that the excerpted quotation describes only their opponents and not themselves. Democrats argue that Bill Pryor's nomination, for example, is ideologically motivated and therefore must be blocked; Republicans argue that the Democratic refusal to confirm Pryor is ideologically motivated. In Solum's view, both sides are apparently right.
Having diagnosed the problem thusly, Solum proposes a solution: legal formalism. He argues that:
There is an alternative to the selection of ideological judges whose political orientation reflects the balance of power in and between the Presidency and the Senate. That alternative is to select judges who are legal formalists, who decide the cases before them on the basis of the rules laid down. If political conditions are right, then both parties have good reasons to support the selection of formalist judges. Of course formalist decisions have political implications, but the political tilt of formalist judges is simply a reflection of the political history that leaves its traces on the Constitution, statutes, and precedents that a formalist judge respects and attempts to follow in good faith. And formalist judging produces a very great benefit—the rule of law.
I am not unsympathetic to Solum's case. But I must confess that I wonder about formalism's limits. What happens in those cases in which Solum's neoformalist principles fail to acheive a determinate outcome? It is hard to imagine that they alone might muster anything more than persuasive arguments about the meaning of the phrase "other rights" in Ninth Amendment, for example. Might the content of this provision be inherently political to one degree or another? What then?
It appears that we are not the only ones to think that FOXNews's conduct warranted sanctions. Tainted Law points to these posts by Roger Ailes, Sterling Silver, and Surreality Check, among others. Silver points out the fact that FOXNews's abandonment of the suit nixes any chance of sanctions under Rule 11. See Fed. R. Civ. P. 11(c). One wonders why Franken's lawyers did not beat FOX to the punch.
I have drawn my information from two particular MEChA chapters: MEChA de Brown and MEChA de Yale. I have relied on these sites because, unlike many other MEChA-related locations on the web, these two appear to be fairly up-to-date. I have viewed numerous such websites, however, and I have found the content on the two aforementioned sites to be representative of those MEChA chapters affiliated with the national organization.
MEChA is an acronym for “Movimiento Estudiantil Chicano de Aztlan,” which the MEChA de Brown website translates as “Chicano Student Movement of Aztlan.” “Aztlan,” according to a document entitled “Purpose of MEChA” on the same site, corresponds to “the legendary birthplace of the Aztecs, which reputedly is today’s [American] Southwest.” The preamble of MEChA’s National Constitution succinctly sets forth the organization’s mission:
Chicano and Chicana students of Aztlán must take upon themselves the responsibilities to promote Chicanismo within the community, politicizing our Raza with an emphasis on indigenous consciousness to continue the struggle for the self-determination of the Chicano people for the purpose of liberating Aztlán.
II. MEChA’s Documented Ideology
There are at least three documents that are critical to an understanding of how MEChA views itself as an organization: (1) the National Constitution; (2) El Plan de Santa Barbara; and (3) El Plan Espiritual de Aztlan. The National Constitution is central to an understanding of MEChA for obvious reasons: as with our national and state equivalents, it establishes the framework within which its various regional and local political units function; it is the governing organizational document.
We know that the two “Plans” referenced are also primary documents because the National Constitution tells us as much. See Nat’l Const. art. III, § 24A (requiring all MEChA chapters to “[o]rient all members by discussing and reading historical documents of our Movimiento including: El Plan de Santa Barbara, El Plan Espiritual de Aztlan, and the MEChA Position Papers of Philosophy, Constitutions, Relationship to Outside Organizations, and Goals & Objectives” in order to be recognized by the governing regional MEChA entity).
El Plan de Santa Barbara dates from the founding of MEChA sometime around 1969. It is clear, however, that its tenets remain bedrock principles of the modern MEChA, as the National Constitution that provides for its study was first adopted in 1995 (and amended in 1996 and 1997). I have not found a date certain for the promulgation of El Plan Espiritual de Aztlan.
A. El Plan de Santa Barbara
The Plan de Santa Barbara is a fairly long document. It is highly rhetorical and does not lend itself to critical analysis due to a lack of substantial content. Taken as a whole, it advocates a noxious strain of identity politics.
It is clear enough that race and/or ethnicity is the basis of MEChA’s politics, but membership is not a genetic birthright. Being Hispanic or Latino would appear to be a necessary but not a sufficient condition of membership. Consider the following:
Commitment to the struggle for Chicano liberation is the operative definition of the ideology used here. Chicanismo involves a crucial distinction in political consciousness between a Mexican American (or Hispanic) and a Chicano mentality. The Mexican American or Hispanic is a person who lacks self-respect and pride in one's ethnic and cultural background. Thus, the Chicano acts with confidence and with a range of alternatives in the political world. He is capable of developing and effective ideology through action. Mexican Americans (or Hispanics) must be viewed as potential Chicanos. Chicanismo is flexible enough to relate to the varying levels of consciousness within La Raza. Regional variations must always be kept in mind as well as the different levels of development, composition, maturity, achievement, and experience in political action.
The now-familiar brand of racialism evidenced in the foregoing passage is also apparent in a passage discussing potentially sympathetic university administrators of Hispanic or Latino ancestry:
This a delicate area since administrators are most interested in not jeopardizing their positions and often will try to act as buffers or liaison between the administration and the student group. In the case of Chicano administrators, it should not [a] priori be assumed, he/she must be given the chance to prove his/her allegiance to La Causa. As such, he/she should be the Chicano's person in the power structure instead of the administration's Mexican-American.
A passage devoted to minority hiring echoes this notion of racial authenticity:
The jobs created by these projects must be filled by competent Chicanos, not only the Chicano who has the traditional credentials required for the position, but one who has the credentials of the Raza. To often in the past the dedicated pushed for a program only to have a vendido sharp-talker come in and take over and start working for his Anglo administrator.
The word vendido appears to be related to the Spanish verb vendedor, which may mean “to sell” or “to betray.” When used reflexively, the verb vendedor connotes “selling out to the enemy.” In other words, the foregoing passage effectively identifies Hispanics and Latinos who fail to adopt the proper politics as “race traitors.”
MEChA does allow for temporary “political coalitions and alliances with non-Chicano groups” when advantageous. However, there can be no association with the aforementioned vendidos. Given MEChA’s underlying “struggle for liberation in [a] society where justice is but a word”:
. . . [I]t becomes essential that each member pull his load and that no one be allowed to be dead weight. Carga floja is dangerous, and if not brought up to par, it must be cut loose.
But even its allowance for alliances of convenience notwithstanding, MEChA is essentially separatist in nature, decrying:
. . . this melting pot society, which seeks to dilute varied cultures into a gray upon gray pseudo-culture of technology and materialism.
The reference to “materialism” is not accidental either. El Plan de Santa Barbara is also explicitly communist in orientation and links capitalism with Anglos. It states:
The ethic of profit and competition, of greed and intolerance, which the Anglo society offers must be replaced by our ancestral communalism and love for beauty and justice.
B. El Plan Espiritual de Aztlan
The Plan Espiritual appears to translate the foregoing principles into a militant plan of action. The Plan offers an ahistorical counterrevolutionary version of Manifest Destiny for Chicanos:
In the spirit of a new people that is conscious not only of its proud historical heritage but also of the brutal "gringo" invasion of our territories, we, the Chicano, Mexican, Latino, Indigenous inhabitants and civilizers of the northern land of Aztlan from whence came our forefathers reclaiming the land of their birth and consecrating the determination of our people of the sun, declare that the call of our sangre [blood] is our power, our responsibility, and our inevitable destiny.
It explicitly states that Aztlan does not belong “to the foreign Europeans” and declares MEChA’s refusal to “recognize capricious frontiers on the Bronze continent.” And then, following these remarks, the Plan goes further still, uttering those infamous words:
. . . . [W]e declare the independence of our mestizo nation. We are a bronze people with a bronze culture. Before the world, before all of North America, before all our brothers in the bronze continent, we are a nation, we are a union of free pueblos, we are Aztlan. Por La Raza todo. Fuera de La Raza nada.
Given this context, it is rather difficult to accept the translations of “Por La Raza todo. Fuera de La Raza nada” proffered by Joanne Jacobs or Mark Kleiman (who, in turn, relies on Mickey Kaus). In Jacobs’s case, if “people” were intended the writers would have likely used gente rather than raza in just about any context. But in this context it is unmistakably clear that the “people” the writers had in mind were members of the Chicano "raza" (i.e., generally right-thinking Hispanics or Latinos in the MEChA worldview). The would-be Kaus-Kleiman translations (“By means of the Race, everything. Outside the Race, nothing.” or “On behalf of the Race, everything. Outside the Race, nothing.”) are equally misplaced when the words are viewed in context. Frankly, these weirdly non-textual variants of the obvious contextual translation (“For the Race: everything. Outside of the Race: nothing.”) leads one to wonder if any of the three aforementioned persons bothered to research or read the text before opining on its meaning.
The Plan follows this rhetoric up with an ambiguous call for political independence:
Once we are committed to the idea and philosophy of El Plan de Aztlan, we can only conclude that social, economic, cultural, and political independence is the only road to total liberation from oppression, exploitation, and racism. Our struggle then must be for the control of our barrios, campos, pueblos, lands, our economy, our culture, and our political life.
Although this language need not be read as irredentist in nature, even this concession is hardly reassuring given the racially identified and racially exclusive nature of the MEChA’s politics. Moreover, it is not clear that El Plan Espiritual is not overtly separatist. As previously noted, the document states that the land does not belong to the “foreign Europeans.” Similarly, in a portion devoted to the “economy,” which also echoes El Plan de Santa Barbara’s communism, the Plan states that:
[E]conomic control of our lives and our communities can only come about by driving the exploiter out of our communities, our pueblos, and our lands and by controlling and developing our own talents, sweat, and resources. Cultural background and values which ignore materialism and embrace humanism will contribute to the act of cooperative buying and the distribution of resources and production to sustain an economic base for healthy growth and development. Lands rightfully ours will be fought for and defended. Land and realty ownership will be acquired by the community for the people's welfare. Economic ties of responsibility must be secured by nationalism and the Chicano defense units.
The plan of action announced in the Plan Espiritual also expressly purports to be revolutionary in character. For example, if admonishes Chicanos to:
“. . . insure that our writers, poets, musicians, and artists produce literature and art that is appealing to our people and relates to our revolutionary culture. Our cultural values of life, family, and home will serve as a powerful weapon to defeat the gringo dollar value system and encourage the process of love and brotherhood.
It also includes this revolutionary gem:
For the very young there will no longer be acts of juvenile delinquency, but revolutionary acts.
C. Philosophy of MEChA
MEChA de Brown’s website also contains a less common (but not uncommon) document entitled “Philosophy of MEChA.” This document is of unstated origin and vintage, but may be the MEChA position paper on philosophy that is referenced in Article III, § 24A of the National Constitution. It is ostensibly less threatening than either El Plan Espiritual de Aztlan or El Plan de Santa Barbara, however it appears to reflect the core tenets announced in the two plans.
Interestingly, it purports that MEChA is an inclusive movement:
We recognize that no one is born politically Chicana or Chicano. Chicanismo results from a decision based on a political consciousness for our Raza, to dedicate oneself to building a Chicana/Chicano Nation. Chicanismo is a concept that integrates self-awareness with cultural identity, a necessary step in developing political consciousness. Therefore the term Chicano is grounded in a philosophy, not a nationality. Chicanismo does not exclude anyone, rather it includes those who acknowledge and work toward the betterment of La Raza. Chicanismo involves a personal decision to reject assimilation and work towards the preservation of our cultural heritage.
Recognizing that all people are potential Chicanas and Chicanos, we encourage those interested in developing a total commitment to our movement for self-determination for the people of Aztlán to join Movimiento Estudiantil Chicano de Aztlán. . . .
It is difficult, however, to reconcile this purported inclusiveness with the tenets announced in MEChA’s other documents. One wonders how MEChAistas would reconcile the apparent conflicts. One also wonders whether anyone outside of a distinct subset of the Hispanic or Latino population would be inclined to take advantage of the advertised inclusiveness. (As an aside, the group photos from various university chapters that I have viewed online are uniformly “Hispanic” or “Latino,” as those terms are commonly understood.)
The foregoing is a mere thumbnail sketch of the organization MEChA. Its ideology seems relatively clear in outline. Whatever failure of clarity there is in the details is attributable to the organizational documents’ propensity for rhetoric over substance. No doubt the actual conduct of the various chapters is relevant as well. In some sense, actions do speak louder than words, as the cliché goes. But it seems strange to excuse grown adults from the moral burdens that attend associations voluntarily undertaken. It seems stranger still that a aspirant for the highest office in one of the states cannot bring himself to unequivocally dissociate himself from both this organization and its ideology.
Ted Barlow's bizarrely reasoned post is a prime example, for all of the reasons set forth by Juan Non-Volokh and Pejman Yousefzadeh. But even stranger is Barlow's apparent endorsement of this argument culled from the comments to one of Kevin Drum's posts:
Why won’t Bustamante make a statement against separatism or fascism or racism? First of all, it hasn’t been exactly established that this is a MEChA stance. I read the Juan Non-Volokh piece, and in his fisking of Barlow, he also made one mistake that I noticed immediately. He linked to the Berkeley MEChA website, which links to that Aztlan plan that everyone is quoting. However, and there probably is no way Non-Volokh could have known this, Berkeley MEChA is actually not the official MEChA of Berkeley—they split off from the regular MEChA. The regular MEChA branch, however, doesn’t have a website. The Berkeley MEChA is decidedly more radical. You can check out the Office of Student Life listing of student groups and see that there are two MEChA’s listed (this website is for last semester, neither MEChA has registered for the Fall yet). What this says to me is that each MEChA branch is likely to have its own statement of purpose, so someone needs to investigate the branch that Bustamante actually belonged to before they demand that he renounce anything.
The problem with this argument is that, whatever the case may be at Berkeley, some minimal Internet research establishes that El Plan Espiritual de Aztlan and other fairly radical documents can be found on the webpages of many MEChA chapters across the United States: for example: Brown, Georgetown, Stanford, University of Chicago, University of Texas at Austin, and the University of Wisconsin at Madison. All of these pages appear to be somewhat dated, however, four of them (Brown, Chicago, Georgetown, and Wisconsin) include the text of the MEChA national constitution and therefore constituted the "mainstream" chapter of their organization on campus at one point in time.
In short, El Plan Espiritual de Aztlan is not merely associated with radical splinter cells or groups that are on the fringe of the MEChA. It is prominently advertised by chapters of the national organization. Given this fact, aren't honest people required to read this (and other) document(s) and let them speak for themselves rather than denying their relevance?
On closer inspection, Brown's MEChA website actually appears to be fairly up-to-date.
I have followed up the observation above with a far more detailed examination of MEChA's beliefs here.
A man convicted of raping his 8-year-old stepdaughter received the death penalty Tuesday in what could be the state's first death sentence for a crime other than murder.
The man, whose identity was being withheld to protect the victim, was convicted of aggravated rape Monday and jurors sentenced him to death after nearly two hours of deliberations.
Under a 1995 Louisiana law, the death penalty can be sought for aggravated rape if the victim is under the age of 12. The other penalty is a mandatory sentence of life in prison without parole.
In 1977, the U.S. Supreme Court ruled it was unconstitutional to sentence someone to death who had not committed a murder. Since then, no one in the state has been sentenced to death for a crime other than murder, said Nick Trenticosta, a New Orleans attorney who has handled numerous death row appeals.
The 1977 Supreme Court case referenced is Coker v. Georgia, 433 U.S. 584 (1977), in which the Court ruled in a 7-2 decision that imposition of the death penalty for the crime of rape constitutes a violation of the Eighth Amendment.
Lammers offers no view of the merits of the Louisiana law. I consider it to be an overly modest step in the right direction. The Supreme Court should revisit Coker and overrule it.
One might reasonably conclude that we ought not to have a death penalty whatsoever. But I am hard-pressed to comprehend the position that (a) we ought to have a death penalty, but (b) rape is not a sufficiently terrible crime to merit its imposition. Statistically, rape outside of the prison environment is doubtless predominately a male-on-female crime. And the decision in Coker reflects little more than insufficient sensitivity to the plight of this terrible crime's female victims.
Consider the Coker Court's recitation of the facts, for example:
While serving various sentences for murder, rape, kidnaping, and aggravated assault, petitioner escaped from the Ware Correctional Institution near Waycross, Ga., on September 2, 1974. At approximately 11 o'clock that night, petitioner entered the house of Allen and Elnita Carver through an unlocked kitchen door. Threatening the couple with a 'board,' he tied up Mr. Carver in the bathroom, obtained a knife from the kitchen, and took Mr. Carver's money and the keys to the family car. Brandishing the knife and saying 'you know what's going to happen to you if you try anything, don't you,' Coker then raped Mrs. Carver. Soon thereafter, petitioner drove away in the Carver car, taking Mrs. Carver with him. Mr. Carver, freeing himself, notified the police; and not long thereafter petitioner was apprehended. Mrs. Carver was unharmed.
Coker, 433 U.S. at 587 (emphasis added).
Having summarily concluded that Mrs. Carver was little or no worse for the wear, the Court then proceeded to hold that:
We have concluded that a sentence of death is grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment.
Id. at 592.
Regarding the severity of the offense, the Court does offer this bland acknowledgment:
We do not discount the seriousness of rape as a crime. It is highly reprehensible, both in a moral sense and in its almost total contempt for the personal integrity and autonomy of the female victim and for the latter's privilege of choosing those with whom intimate relationships are to be established. Short of homicide, it is the 'ultimate violation of self.' It is also a violent crime because it normally involves force, or the threat of force or intimidation, to overcome the will and the capacity of the victim to resist. Rape is very often accompanied by physical injury to the female and can also inflict mental and psychological damage. Because it undermines the community's sense of security, there is public injury as well.
Id. at 537-38.
But then the Court discards these observations and concludes in the very next paragraph that:
Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life. Although it may be accompanied by another crime, rape by definition does not include the death of or even the serious injury to another person. The murderer kills; the rapist, if no more than that, does not. Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair. We have the abiding conviction that the death penalty, which 'is unique in its severity and irrevocability,' Gregg v. Georgia, 428 U.S. at 187, 96 S.Ct. at 2931, is an excessive penalty for the rapist who, as such, does not take human life.
Id. at 598 (emphasis added).
What the Court gives with one hand, it takes away with the other. And it did not give much to begin with. The Court's clinical ode to the "personal integrity and autonomy" of victims and their "privilege of choosing with whom intimate relationships are to be established" is, in a word, ridiculous. As if one's right to be free from forcible sexual contact is a mere privilege. See Black's Law Dictionary 1215 (7th ed. 1999) (defining "privilege" as "[a] special legal right, exemption, or immunity granted to a person or class of persons; an exception to a duty").
The opinion's actual text is contemptible. But its apparent implications are even worse. A critical, but not entirely unfair, paraphrase might consist of: "C'mon honey, absent a real beating, you're not even hurt. So quit pouting, wipe that semen off your leg, and get on with your slightly less happy existence." The only way the Court's opinion could be more demeaning is if it contained a lengthy description of Elnita Carver's "alluring attire."
Then Chief Justice Burger (joined by then Associate Justice Rehnquist) was quick to point out these shortcomings in dissent. Burger begins by setting out a more satisfactory recitation of the facts:
On December 5, 1971, the petitioner, Ehrlich Anthony Coker, raped and then stabbed to death a young woman. Less than eight months later Coker kidnaped and raped a second young woman. After twice raping this 16-year-old victim, he stripped her, severely beat her with a club, and dragged her into a wooded area where he left her for dead. He was apprehended and pleaded guilty to offenses stemming from these incidents. He was sentenced by three separate courts to three life terms, two 20-year terms, and one 8-year term of imprisonment. Each judgment specified that the sentences it imposed were to run consecutively rather than concurrently. Approximately 1 1/2 years later, on September 2, 1974, petitioner escaped from the state prison where he was serving these sentences. He promptly raped another 16-year-old woman in the presence of her husband, abducted her from her home, and threatened her with death and serious bodily harm. It is this crime for which the sentence now under review was imposed.
Id. at 605 (Burger, C.J., dissenting).
Accordingly, the dissenters would have addressed a far narrower question than the Court chose to reach, namely:
Does the Eighth Amendment's ban against cruel and unusual punishment prohibit the State of Georgia from executing a person who has, within the space of three years, raped three separate women, killing one and attempting to kill another, who is serving prison terms exceeding his probable lifetime and who has not hesitated to escape confinement at the first available opportunity?
Id. at 607 (Burger, C.J., dissenting); cf. id. at 601 ("The plurality, however, does not limit its holding to the case before us or to similar cases. Rather, in an opinion that ranges well beyond what is necessary, it holds that capital punishment always regardless of the circumstances is a disproportionate penalty for the crime of rape.") (Powell, J., concurring in the judgment in part and dissenting in part).
The dissenters also made plain that their factual recitation was not rendered so as to prejudice the reader or as a clarion call to retribution:
Surely recidivism, especially the repeated commission of heinous crimes, is a factor which may properly be weighed as an aggravating circumstance, permitting the imposition of a punishment more severe than for one isolated offense. For example, as a matter of national policy, Congress has expressed its will that a person who has committed two felonies will suffer enhanced punishment for a third one . . . . As a factual matter, the plurality opinion is correct in stating that Coker's 'prior convictions do not change the fact that the instant crime being punished is a rape not involving the taking of life'; however, it cannot be disputed that the existence of these prior convictions makes Coker a substantially more serious menace to society than a first-time offender:'There is a widely held view that those who present the strongest case for severe measures of incapacitation are not murderers as a group (their offenses often are situational) but rather those who have repeatedly engaged in violent, combative behavior. A well-demonstrated propensity for life-endangering behavior is thought to provide a more solid basis for infliction of the most severe measures of incapacitation than does the fortuity of a single homicidal incident.' Packer, Making the Punishment Fit the Crime, 77 Harv. L. Rev. 1071, 1080 (1964).
In my view, the Eighth Amendment does not prevent the State from taking an individual's 'well-demonstrated propensity for life-endangering behavior' into account in devising punitive measures which will prevent inflicting further harm upon innocent victims.
Id. at 608-10 (Burger, C.J., dissenting) (some internal citation omitted).
However, faced with the Court's very broad holding, the dissent proceeds to address its chief premise head-on, albeit in a kinder fashion than the Court's holding deserves:
The plurality acknowledges the gross nature of the crime of rape. A rapist not only violates a victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. The longrange effect upon the victim's life and health is likely to be irreparable; it is impossible to measure the harm which results. Volumes have been written by victims, physicians, and psychiatric specialists on the lasting injury suffered by rape victims. Rape is not a mere physical attack it is destructive of the human personality. The remainder of the victim's life may be gravely affected, and this in turn may have a serious detrimental effect upon her husband and any children she may have. I therefore wholly agree with Mr. Justice WHITE's conclusion as far as it goes that '(s)hort of homicide, (rape) is the 'ultimate violation of self." Victims may recover from the physical damage of knife or bullet wounds, or a beating with fists or a club, but recovery from such a gross assault on the human personality is not healed by medicine or surgery. To speak blandly, as the plurality does, of rape victims who are 'unharmed,' or to classify the human outrage of rape, as does Mr. Justice POWELL, in terms of 'excessively brutal,' versus 'moderately brutal,' takes too little account of the profound suffering the crime imposes upon the victims and their loved ones. Despite its strong condemnation of rape, the Court reaches the inexplicable conclusion that 'the death penalty . . . is an excessive penalty' for the perpetrator of this heinous offense. This, the Court holds, is true even though in Georgia the death penalty may be imposed only where the rape is coupled with one or more aggravating circumstances.
Id. at 612-13 (Burger, C.J., dissenting) (internal citations omitted).
The Chief Justice also accurately notes that the Court's distinction between rape and murder rests upon a sort of twisted neo-Hammurabian logic that conceptualizes capital punishment solely in terms of societal vengeance:
The subjective judgment that the death penalty is simply disproportionate to the crime of rape is even more disturbing than the 'objective' analysis discussed supra. The plurality's conclusion on this point is based upon the bare fact that murder necessarily results in the physical death of the victim, while rape does not. However, no Member of the Court explains why this distinction has relevance, much less constitutional significance. It is, after all, not irrational nor constitutionally impermissible for a legislature to make the penalty more severe than the criminal act it punishes in the hope it would deter wrongdoing: 'We may not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved.' It begs the question to state, as does the plurality opinion: 'Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair.' Until now, the issue under the Eighth Amendment has not been the state of any particular victim after the crime, but rather whether the punishment imposed is grossly disproportionate to the evil committed by the perpetrator. As a matter of constitutional principle, that test cannot have the primitive simplicity of 'life for life, eye for eye, tooth for tooth.'
Id. at 619-20 (Burger, C.J., dissenting) (internal citations omitted).
Although I would take a very broad approach and consider rape a capital crime even, perhaps, in the absence of aggravating circumstances, the Louisiana case that began this discourse would hardly require so broad a rule. In light of the fractured line-up in Coker, reconsideration may be promising. The Court's full opinion was supported by a mere plurality. Two additional Justices (Brennan and Marshall) adhered to the now moribund position that the death penalty is unconstitutional under any circumstances. A third Justice (Powell) concurred in the result, but thought that rapes accompanied by more egregious circumstances might qualify for the death penalty. And two Justices (Burger and Rehnquist) dissented. As with so many things, the passage of nearly thirty years might reveal that Rehnquist's views have prevailed.
Will Baude has pointed out that he and Amanda Butler have tackled the Louisiana case before. Baude supports the Louisiana law, but goes on to disagree with my admittedly aggressive claim that Louisiana's law is "an overly modest step in the right direction" for some very good reasons:
The first is the nature of proof. Murder trials nearly always require one to produce an actual body, so that the only question at issue is "who did it?" and certain amounts of evidence are gathered of a largely physical nature, and so on. Eyewitness testimony can be very unreliable but can often get across the basic details. The trouble with many rape cases is that the determining facts are mistier. Since it's always illegal to kill people (barring a few exception circumstances) it's usually enough to establish that A killed B and there weren't any major countervailing circumstances. But since many, even most, sex is extremely legal it's not enough to establish that A had sex with B, one also has to establish that B did not consent, that A reasonably should have known B did not consent, and so on. Since people who have sex so rarely ask for clear consent, the issue can get messy. Dahlia Lithwick pointed out in Slate how steep penalties in rape can be troubling given the small quantities of proof that make a difference, in those cases, between life and death.
The second issue is the issue of selective prosecution. My understanding (those who know should correct me if I'm wrong) is that rapes are generally underprosecuted. If this is so, the idea of having prosecutors decide who basically gets off and who gets a death penalty pursued against them might bother a lot of citizens. I'm not saying these issues aren't present in capital trials, I'm sure they are, but I think it wouldn't be completely misguided to think that these issues would be more problematic in the case of certain kinds of rape, especially date-rape.
These are not silly objections and might rightly temper one's enthusiasm for the broader approach that I advocated. However, one wonders . . . . Let us say that we have a case of "date-rape"—a term that trivializes the crime of rape by implying that those who manage to arrange a social outing and then force sexual contact upon their companion are somehow less culpable than a stranger might be—that is not, in Powell's callous terminology, "excessively brutal." And let's further suppose that a hidden camera captured the crime and leaves no doubt that the sex involved was non-consensual.
Does Baude envision such a case as being eligible for the death penalty? And, if not, isn't he really saying that rape per se is not egregious enough to merit the death penalty absent other circumstances? In other words, isn't Baude, more or less, arguing Justice Powell's position? That is, although he writes of rape's heinous toll with more sympathy than the Coker Court or Powell did, I think that Baude effectively reaches Powell's conclusion: rape alone is insufficient. This position strikes me as being incompatible with the position that rape can be "a fate worse than death," to borrow Baude's wording, unless one believes that rape is only "a fate worse than death" when it is accompanied by aggaravating circumstances.
I simply do not believe that a person need be beaten mercilessly in addition to being raped in order for it to result in irreparable harm. And, although rape may be especially devastating for children whose personalities are in formation and are therefore particularly fragile, the psychological harms associated with rape are probably not that much reduced for adults.
This morning's CNN Headline News featured an email comment from someone commenting on Judge Moore's stand that asked the question whether the act of swearing on the bible before you give testimony will be yanked out of court, too. (By the way, it's already gone—and you don't swear "so help me God" anymore.) Courts have consistently required the separation of religous symbols from government-related activities. There are legions of cases where nativity scenes have been removed from city parks, as required by Courts interpreting the First Amendment.
Although it does not surprise me that California state courts and federal courts within the Ninth Circuit might have abandoned the acknowledgment of God in the taking of in-court oaths, see Newdow v. U.S. Congress, 328 F.3d 466 (9th Cir. 2003), this practice is far from universal. In my particular division of the Southern District of Texas, God continues to be invoked in the administration of oaths. Witnesses, sworn en masse prior to trial, are administered the following oath:
You, and each of you, do solemnly swear that the testimony you will give in the case now before the court shall be the truth, the whole truth, and nothing but the truth, so help you God?
Similarly, the oaths required of grand jurors, court reporters, veniremen, jurors, and translators/interpreters in the Southern District of Texas also contain the clause "so help you God."
Interestingly, the oath for newly admitted attorneys laid out in Local Rule 83.1 of the Southern District omits any mention of God in its text. However, the version of the oath for newly admitted attorneys provided to me by one of the deputy clerks of court contains the phrase "So help me God." Cf. Fed. R. App. P. 46 (omitting mention of God); U.S. Sup. Ct. R. 5 (same).
Federal law clerks are also sworn in upon assuming their duties. The oath to be administed is laid out in an official form of the United States government, AO 78A (1/00), which states:
I [insert name], do solemnly swear (or affirm) that—I will support and defend the constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.
The law clerk's oath bears a striking resemblance to the oath sworn by members of the armed forces, see 10 U.S.C. § 502, which also explictly references God. The clerk's oath may be amended by the clerk so as to strike out the reference to God and the word "swear," if the party wishes to affirm the oath rather than swear to it. But such an election must expressly be made and the "So help me God" language must literally be stricken out. This oath is apparently mandated by 5 U.S.C. § 3331. Cf. 28 U.S.C. § 951 (oath for federal clerks of court, which also contains "[s]o help me God").
Justices of the United States and the judges of the lower federal courts swear an otherwise dissimilar oath upon confirmation to the bench, but their oath likewise invokes God:
I, [insert name], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [insert position] under the Constitution and laws of the United States. So help me God.
28 U.S.C. § 453.
In contrast, the presidential oath, which is fixed in the Constitution, see U.S. Const. art. II, § 1, cl. 7, omits any reference to the Almighty.
Although I am less familiar with Texas state courts, I suspect that they explicitly reference God in court-related oaths as well. After all, the oath sworn by all lawyers admitted to the State Bar of Texas reads:
I [insert name] do solemnly swear that I will support the constitution of the United States, and of this State; that I will honestly demean myself in the practice of the law, and will discharge my duties to my client to the best of my ability. So help me God."
However, I cannot be certain about this without conducting further research. Although the above language is the exact text that was mailed to me by the Clerk of the Supreme Court of Texas upon passage of the State Bar Exam, the statute that governs the lawyer's oath by no means requires any religious content. See Tex. Gov't Code § 82.037 (omitting any mention of God). The mention of God, however, does not seem to be out of keeping with Texas custom. For example, the state constitution requires all elected and appointed officials to take an oath that includes the phrase "[s]o help me God." Tex. Const. art. 16, § 1(a).
Of course, none of this bears upon the constitutional propriety (or lack thereof) of statutes and customs that include references to God—except, perhaps, to the extent that longstanding practice might reflect constitutionality. But whatever the case, it is wrong as a descriptive matter to contend that God has been banished altogether from the judiciary or judicial proceedings.
The Almighty Update:
J. Craig Williams over at May It Please The Court has posted an update, noting that even in California the "so help me God" oath may appear in court:
It turns out that California Code of Civil Procedure section 2094 has two optional oaths, subsections (1) and (2). The first contains the "So help you God" language, the second does not.
In addition, Timothy Sandefur has written that the federal oaths enumerated above that include language like "so help me God" are illegal, citing the third clause of U.S. Const. art. VI. This provision reads:
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
It is not clear to me that all such federal oaths that reference God would run afoul of this provision. For example, the law clerk's oath allows one to opt out of such language. If one can do likewise for the other federal oaths, then they might not run afoul of Article VI either.
However, even without such limitations, it is not altogether clear that the prohibition of religious tests, whatever might be encompassed therein, covers references to divine beings in oaths, which may be little more than a blandishment. Some certainly take a more limited view of the governmental conduct proscribed by Article VI. See, e.g., Stephen B. Pressler, Some Realism About Atheism: Responses to the Godless Constitution, 1 Tex. Rev. L. & Politics 87, 98-99 (1997) (reviewing Isaac Kramnick & R. Laurence Moore, The Godless Constitution: The Case Against Religious Correctness (1996)). Even by Sandefur's recitation, the Supreme Court has yet to address this issue. See Torcaso v. Watkins, 367 U.S. 488, 489 n.1 (1961).
Having evinced these preliminary skeptical leanings, I concede that I have concentrated little thought on the matter (let alone research) and could be entirely wrong. My initial post was really focused on actual practice more than the constitutional propriety of these practices. But based on the admittedly little that I know, I am not inclined to place this issue beyond the bounds of reasonable debate just yet.
Of course, none of this gainsays cases like Torcaso that invalidate enforcement of certain oaths on Establishment Clause grounds. However, the oath at issue in Torcaso was not even arguably a blandishment; it expressly required one to affirm one's belief in God and there was no exemption. Id. at 489. The Court's holding reflects this fact:
We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person "to profess a belief or disbelief in any religion." Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.
Id. at 495.
Accordingly, I am not so sure that Torcaso is dispositive regarding the foregoing federal oaths. But, again, I am hardly an expert in this area and would welcome further information.