Consider this half-baked passage:
One might have expected that—having just witnessed the results of intemperate remarks to a group of Roman Catholics at a Religious Freedom Day rally in Fredericksburg, Va.—Scalia would be inclined toward circumspection. But circumspection is not a word in the otherwise limitless Scalia vocabulary. Which is why, last Friday, in a speech to another conservative group—the Intercollegiate Studies Institute—Scalia unloaded with another scathing criticism, this time of his brethren's logic in Lawrence v. Texas, last term's decision striking down Texas' gay sodomy law. According to the Associated Press account of the speech, Scalia "adopted a mocking tone to read from the court's June ruling." Another account, in the National Review Online, takes issue with this AP characterization, but only to contend that yes, Scalia was mocking Justice Kennedy's opinion in Lawrence, but only because Kennedy's opinion was so dumb as to warrant it. There seems to be no dispute, then, that days after having to boot himself off a case for overheated remarks to an adoring crowd, Scalia was at the podium again, offering overheated remarks to an adoring crowd.
The difficulty with this comparison is that the situations at issue do not run parallel to one another in the fashion suggested by Lithwick's argument. In commenting on the Ninth Circuit's decision in Newdow, Scalia was announcing a position on the merits of a case that was likely to come before the Supreme Court on a writ of certiorari. In fact, it did so and the Supreme Court accepted review. Under such circumstances, Scalia's recusal was necessary and proper. But in this later speech before the ISI, Scalia was commenting on the merits of a case that had already been decided. Indeed, however mocking Scalia's tone may (or may not) have been, surely his speech did not reveal anything not already articulated in his lengthy dissent in Lawrence. Lithwick certainly does not appraise us of any such revelations. In fact, she concedes that "his intemperate comments were mild compared to his scorching written dissent."
Lithwick would be hardpressed to demonstrate how Scalia's remarks run afoul of 28 U.S.C. §§ 144, 455. Although by its own terms the Code of Conduct for United States Judges does not apply to justices of the Supreme Court, to the extent that it is relevant as guidance, Canon 3(a)(6) is the pertinent one with reference to Scalia's Newdow-related speech. Obviously it is irrelevant to the ISI speech that Lithwick is criticizing, as Canon 3(a)(6) applies solely to "pending or impending" lawsuits. Amazingly, Lithwick subsequently acknowledges § 455 and the obvious factual distinction, but somehow manages to find Scalia worthy of criticism nonetheless, writing that "the body of his speeches and addresses makes it clear that he appears anything but 'impartial' as is seemingly required by the law." Lithwick does not provide any explication of the supposed "law" in question. Legal details are not her forte, which may explain why she writes about the law rather than practices it.
A short while later, Lithwick follows up the foregoing comparison with another that is equally laughable. She writes:
. . . What possesses Justice Scalia to eschew the reclusive public life of many justices, or at least the blandly apolitical public lives of most, to play the role of benighted public intellectual and knight gallant in the culture wars?
Ah yes, those other justices are veritable hermits. They never publicly speak on controversial issues, right? Wrong. Justice Kennedy has recently opined on the state of the nation's criminal justice system (e.g., "Our resources are misspent, our punishments too severe, our sentences too long."). In the same speech, Kennedy stated that the federal Sentencing Guidelines should be "revised downward" and that, "[i]n too many cases, mandatory minimum sentences are unwise and unjust." It's hard to understand these comments as being apolitical. Moreover, Kennedy will likely face cases in the future that implicate these concerns in one fashion or another. In his speech, Kennedy explicitly acknowledged that his comments crossed over into the realm of politics.
Justice Kennedy is not alone. Justice Breyer has publicly spoken this year of the importance of international law to our own legal system and the use of foreign precedents for their persuasive value, a proposition that has begun to occasion some real controversy in the Supreme Court's actual decisions. See, e.g., Lawrence, 123 S. Ct. 2472, 2495 (Scalia, J., dissenting) ("The Court's discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, however, since 'this Court . . . should not impose foreign moods, fads, or fashions on Americans.'"). Indeed, Breyer's speech was a public justification for his preferred judicial approach. On this point, Breyer was unequivocal: "And I have tried to explain, both in opinions and public remarks, why I believe foreign experience is often important to our work. This afternoon I should like to continue to explain why so many of us have taken this position."
Notwithstanding such similarly controversial public utterances, Lithwick's entire article is devoted to demonstrating that Scalia's purported transgressions are somehow unique and uniquely dangerous. But the facts always get in the way. For example, chiding Scalia's lack of impartiality, Lithwick bemoans the fact that "[o]ne can predict his vote on most cases with great confidence." However, her very next sentence begins, "This is true of most justices . . . ." It's almost as if she is Fisking herself.
In actuality, what seems to have have Lithwick so exercised is not the mere happening of Scalia's speech, but rather it's content. Rather than elaborate an argument as to why Scalia's views are dangerous, she has instead chosen to pen generalities and cast aspersions upon his fitness for the bench. Thus, readers are treated to boilerplate objections to his religious beliefs:
But one cannot ignore—and Scalia would not have us ignore—the fact that he is also a deeply religious man. Scalia worships at a conservative Virginia church that erected a monument to unborn children several years back. . . .
. . . Merely by virtue of his public role he is actually tearing down the wall between church and state every time he opens his mouth. Which is precisely what he wants.
Of course, Scalia is not the only sitting justice whose views are influenced by religion. Justice Ginsburg has publicly declared how her own religious tradition informs her conduct on the bench:
On walls of my chambers, I have posted in two places the command from Deuteronomy—"Zedek, Zedek," "Justice, Justice shalt thou pursue." Those words are an ever present reminder of what judges must do "that they may thrive." There is an age old connection between social justice and Jewish tradition. Supreme Court Justice Arthur Goldberg, whose tenure on the Court, 1962-1965, was far too brief, once said: "My concern for justice, for peace, for enlightenment, . . . stems from my heritage." Justice Breyer and I are fortunate to be linked to that heritage.
Of course, Ginsburg votes "the right way," so doubtless Dahlia is less troubled by her professed devotion to a principle articulated in the Old Testament. Indeed, Lithwick is seemingly untroubled by public speeches by the justices in general when the views announced therein are consonant with her own. Earlier this year, she applauded some public remarks made by Justice Kennedy and encouraged the other justices to follow suit:
The members of the high court should be a little more willing to weigh in on the crisis facing their colleagues on the bench; more public shaming from The Brethren might just make a difference in the Senate.
Lithwick also isn't above distorting Scalia's positions when a caricature would be more damning than reality. Linking to one of her own prior articles, she writes:
And in a 2002 speech, he urged any Catholic judge who agrees with the pope on capital punishment to resign from the bench.
In the referenced article, she devotes a whole sentence to conveying Scalia's actual remarks:
Addressing students at Georgetown University last week, Scalia argued that Catholic judges who believe the church's teaching that capital punishment is wrong should not be on the bench, stating that "any Catholic jurists (with such concerns) . . . would have to resign."
That's the sole quotation of his Georgetown remarks in her entire piece. As one might suspect, Scalia's views are considerably more nuanced than Lithwick represents. Regarding capital punishment, Scalia has written:
I pause here to emphasize the point that in my view the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own. Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty—and if that fails, lead a revolution. But rewrite the laws he cannot do. This dilemma, of course, need not be confronted by a proponent of the "living Constitution," who believes that it means what it ought to mean. If the death penalty is (in his view) immoral, then it is (hey, presto!) automatically unconstitutional, and he can continue to sit while nullifying a sanction that has been imposed, with no suggestion of its unconstitutionality, since the beginning of the Republic. (You can see why the "living Constitution" has such attraction for us judges.)
In other words, Scalia does not at all believe that sincere Catholics must resign from the bench. The obvious import of Scalia's views is that Catholics cannot let their private moral views serve as a substitute for the Constitution. Judges may not abrogate laws on the basis of their religious beliefs; they must subordinate their beliefs to the law. Only those who cannot bring themselves to abide by this principle must resign. The nub of Scalia’s argument appears to consist of the observations that this is a nation of laws and not of men and that there should be a separation of church and state.
Astoundingly, Lithwick links to the very article just quoted. Yet she somehow fails to notice both that Scalia's argument is markedly different from her own representation of it and that his position flatly undercuts her thesis that Scalia is determined to tear down the metaphorical wall between church and state. There are three possible explanations for Lithwick's obtuseness in this regard: (1) she did not bother reading the article to which she linked; (2) she did not understand the article to which she linked; or (3) she knew precisely what Scalia meant but thought that readers would be too lazy to actually read Scalia's article for themselves.
I have no way of divining which is the case, of course, but I presume (as an unwarranted kindness) that the first possibility is not, in fact, descriptive of Lithwick's research methodology. Given the jurisprudential simplicity of Scalia's point, however, it is equally difficult to envision the second option as being accurate. Nevertheless, sometimes one's preexisting biases get in the way of a clear reading of texts. This is ultimately the ironic thing about Lithwick's latest piece—the kindest possible reading of it so reveals her own lack of impartiality where Scalia is concerned. Whether the second or the third option happens to be the case, the only thing that really accounts for Lithwick's bizarre reading of Scalia and her overall reaction to the justice are her own biases. Perhaps, she should recuse herself from covering Scalia for Slate.
Update I: I see that Justice O'Connor has also recently been publicly speaking about the propriety of looking to foreign legal authorities. No doubt, Dahlia Lithwick is feverishly typing up a condemnation of this sort of public jurisprudential advocacy at this very moment.
Update II: A recent Washington Post article provides yet more evidence regarding the supposed reticence on the part of a sitting Supreme Court justices. Justice Stevens left his hermitage just long enough to publicly discuss the largely confidential inner workings of the Court with reference to the affirmative action decisions in particular. According to the Post:
The regular meeting at which the justices discuss and vote on cases, known simply as "the conference," is so confidential that no one but the nine members of the court is permitted to attend. Public discussion by the justices of the goings-on at conference is basically unheard of.
"As best we historians know, it is absolutely unprecedented for a sitting Supreme Court justice to detail publicly his private conference comments to his colleagues about a case just a few months or even a few years after that case was decided," said David Garrow, a law professor and court historian at Emory University.
The article states that Stevens disclosed solely his own comments and refrained from discussing those of his colleagues, but Stevens own remarks belie such a claim:
In Chicago, Stevens explained that he considered recusing because a former law clerk, Jeffrey Lehman, was the former dean of the Michigan law school. Stevens worried this might create the appearance that he was biased in favor of the school.
He said that, following what he said was the usual practice among justices contemplating recusal, he raised the issue at a closed-door conference sometime before the April 1 oral argument. The other eight justices "unanimously and very firmly" urged him to stay in the case, Stevens said, because justices could not sit out each time one of their many former clerks was involved in a case.
Although involving entirely different issues than Scalia's remarks (both in substance and with regard to the concerns about impartiality), this is one more instance of a justice not named Scalia publicly speaking on a recently decided case in a manner that might excite controversy but somehow failed to do so.
Update III: I see that Justice Stevens is once again publicly speaking on a controversial legal issue: advocating that the U.S. would be better off without the death penalty. The Chicago Sun-Times reports that:
Stevens' statement at the 7th Circuit Bar Association dinner in Chicago on Monday appears to be the most pronounced statement against capital punishment made by a Supreme Court justice since the late Harry Blackmun wrote in 1994: "From this day forward, I no longer shall tinker with the machinery of death."
Richard Dieter, executive director of the Death Penalty Information Center, welcomed Stevens' statement, saying, "I don't necessarily read that he's going to vote against the death penalty in every case that comes before him, but it is significant nevertheless: It's unusual for justices to let their personal views be known on any issue that comes before the court. But it's coming to a head in the court. The juvenile cases are coming up in October. It's on their minds."
Notably, Justice Breyer who was also speaking, declined to offer his opinion on the death penalty.
For example, one judge "once tried unsuccessfully to find a monastery, instead of a prison, to house a 59-year-old man charged with kidnapping his ex-girlfriend." As a punishment, this hardly seems commensurate with a charge like "kidnapping." The religious nature of such a proposed sentence probably renders it unconstitutional as well.
This is not the only sentence documented in the story that appears to be entirely derivative of the judge's personal moral compass rather than the law. Consider the sentence imposed by Judge Clyde Gober:
. . . [H]e ordered Darrell Meadows to marry his live-in girlfriend, Angela Whaley, and "legitimize" their daughter. Meadows had been accused of threatening to kill Whaley. The court-ordered marriage, volunteered by Meadows' lawyer, drew protests and national media attention.
This sentence is reminiscent of the ancient Hebrew law regarding rape. See Deuteronomy 22:28-29 (NIV).
(AJC link via Howard Bashman.)
Driscoll's article is nonetheless interesting. Although he sets out to explain Muir's newfound popularity, he also identifies the precise reason that I loathe Day By Day:
It combines the political feel of Doonesbury (although from the other side of the political aisle) with the office atmosphere of Dilbert. In contrast to Dilbert's stifling bureaucracy however, Day By Day's office seems to run much more efficiently, befitting the button-down entrepreneurial nature of its young boss and the strip's star, Damon.
Translation: Day By Day has nothing in common with Dilbert—least of all the humor—other than the fact that both are principally located in tech-sector offices, but shares all of the overly self-assured snarkiness of Doonesbury, albeit from a right-of-center perspective. Muir is just Trudeau 2.0 for people who prefer their pretentious political sniggering to come from a Republican point of view.
Political humor is an art for which most possess no talent. It requires a certain evenhandedness that partisans generally do not possess. Consider the October 23, 2003 strip for Day By Day. This is precisely the sort of humorlessness for which South Park rightly castigated Whoopi Goldberg's anti-GOP "jokes."
Update: I see that Radley Balko and I are on the same page.
Update I: Via The Yin Blog, I note that Luskin has managed the near-impossible: he has gotten a liberal (Jack Balkin), a libertarian (Timothy Sandefur), and a conservative (me) to all agree on something. Unfortunately for Luskin, what we agree on is the fact that his conduct is shameful. This whole episode reflects a remarkable lack of judgment on Luskin's part. No one would have taken the "stalker" representation literally or seriously, but nearly everyone is likely to consider this sort of bullying-by-threat-of-lawsuit to be a serious matter.
Update II: Unlearned Hand offers what would surely be Defense Exhibit A in any potential lawsuit: Luskin's own characterization of his Krugman-related journalism as stalking.
Update III: Walter Olson has a great post on this subject that provides some useful background, identifies several other relevant posts on the topic, and references some prior relevant legal cases.
Update IV: Pejman Yousefzadah has also added a nice post on this topic, in which he dissects Luskin's legal claim.
Update: What do you know: it turns out that at least one recently alleged instance of rightwing litigiousness was inaccurate.
At last week's Senate hearing, Joe Biden of Delaware didn't have to say that "the tide of criticism" being directed against the Patriot Act "is both misinformed and overblown," that "I stand by my support" of that law, and that the Ashcroft Justice Department has "done a pretty good job in terms of implementing" the law's provisions. But Biden did say all these things, anyway. And California's Dianne Feinstein went further still, in a stern and lengthy lecture about the concrete reality of U.S. anti-terrorism law—as opposed to the paranoiac fantasy version now being circulated throughout the land by the likes of Bob Barr and Howard Dean. How's about we concentrate on some facts, Feinstein suggested.
"I've tried to see what has happened in the complaints that have come in," she said, "and I've received to date 21,434 complaints about the Patriot Act." Except these turned out to be unrelated civil liberties gripes, or complaints about a "Patriot Act II" that doesn't yet exist. "I have never had a single [verified] abuse of the Patriot Act reported to me. My staff emailed the ACLU and asked them for instances of actual abuses. They emailed back and said they had none."
The widespread hullabaloo over the Patriot Act, Senator Feinstein concluded, proceeds from "substantial uncertainty . . . about what this bill actually does do." And "perhaps some ignorance," she added.
Over twenty thousand complaints and yet not a single one of substance? Surely, honest critics of the Act have to concede that this fact has some relevance.
Of course, the ACLU, for example, appears to maintain that the PATRIOT Act is worrisome even if properly employed. That is, the ACLU apparently objects to some of the Act's provisions as written, not to their abuse. So Feinstein's contentions are not unanswerable. Moreover, Feinstein herself was apparently ignorant regarding at least one detail. According to PatriotWatch:
. . . Senator Feinstein erroneously stated in her opening statement that the government has never used the sneak and peek power of the PATRIOT Act. She was wrong. The government has used this power. In fact, Ashcroft talked about the DOJ's use of sneak and peek in a June 5th hearing before the House Judiciary Committee . . . .
(No Permalink Available; see Oct. 22, 2003 post entitled "A Word on the PATRIOT Act Hearings.")
However, PatriotWatch makes an error of omission as well. The site's proprietor writes:
. . . [T]he one witness that should have appeared did not. General Ashcroft was no where to be found. Many Senators on the committee expressed dismay that Ashcroft was not present. . . .
In the Standard, David Tell demolishes this particular cannard. He explains:
It's gotten to the point where Ashcroft is automatically blamed for things he can't possibly have done. At a Senate Judiciary Committee hearing on the Patriot Act last week, the attorney general came under a shower of abuse for ducking an appearance even though, as committee chairman Orrin Hatch eventually pointed out, Ashcroft hadn't actually been invited.
In fairness, PatriotWatch does acknowledge that only three persons were scheduled to testify at the hearing. So, perhaps, his criticism might be read as a contention that the AG should have been invited. But that is not the actual impression conveyed by his language. "Ashcroft was no where to be found" gives the impression that the AG was supposed to be there. The fact that Hatch had to point out that he was not invited also suggests the senators who were complaining about Ashcroft's absence were just engaged in a little demagoguery.
PatriotWatch also fails to comment on Biden's and Feinstein's supportive remarks altogether in its post about the hearing. That's an odd omission for a site devoted to documenting noteworthy items pertaining to the PATRIOT Act, don't you think? And that's the essential problem I have with criticism of the Act—its wholly unbalanced character. Advocates who cannot acknowledge inconvenient facts and opposing arguments are not terribly likely to convince. Indeed, they aren't likely to convince many people to even hear them out.
Materials related to the hearing are available via the Senate Judiciary Committee's webpage.
A tax preparer was sentenced Thursday to 13 years in prison and his daughter received just over three years for defrauding the IRS by claiming $500,000 in slavery reparations.
* * *
. . . According to federal prosecutors, Foster prepared returns for several people claiming more than $3.6 million in reparations, most for about $500,000 each.
In an interview at the Northern Neck Regional Jail before his sentencing, Robert Foster maintained he did the right thing.
"Black people are not treated as humans, but as things by the U.S. government,'' he said. "We were used as resources to enrich this country and we get no inheritance from the wealth we brought.''
* * *
"I just want to be at home with my two children,'' Crystal Foster told U.S. District Judge Richard L. Williams, breaking down as she recounted how her second son had been born in the back of a police van following her arrest. "It's not fair, the government sent me this check,'' she said.
So much for Acceptance of Responsibility under U.S.S.G. § 3E1.1(a).
What's really interesting is that this tax practice is apparently not altogether uncommon. According to the Times:
The IRS says more than 80,000 tax returns were filed in 2001 seeking nonexistent slavery tax credits totaling $2.7 billion. More than $30 million was mistakenly paid out in slave reparations in 2000 and part of 2001.
That number dropped significantly last year after stepped-up scrutiny of tax returns and an aggressive media campaign targeting scam artists promising to secure tax credits for blacks.
IRS spokeswoman Michelle Lamishaw said the idea of filing reparations claims may stem from a 1993 Essence magazine editorial urging blacks to seek refunds of $43,206 per household.
The magazine said the figure was the modern-day equivalent of 40 acres and a mule, which Congress voted to give former slaves following the Civil War. The deal was vetoed by President Andrew Johnson.
An article at Essence.com notes that the IRS has begun cracking down on this tax scam, but conveniently omits any mention of its own role in fostering this fraud. Interestingly, the Times article apparently originally alleged that the government had previously turned a blind eye to this form of tax fraud, but the language excerpted by Fritz Schranck (i.e., "But the government has also begun quietly cracking down on filers of false claims after years of looking the other way.") no longer appears in the Times story. There is also no notation noting that the article has been altered since its original publication.
Based on the details provided in the story, my guess is that these defendants are not tax protestors so much as tax cheats. This would not be the first time that this turned out to be the case.
In Alaska, defendants in such cases are allowed to argue that they were legitimately mistaken as to the age of the female minor involved. The relevant state statute provides that:
In a prosecution under AS 11.41.410 - 11.41.440, whenever a provision of law defining an offense depends upon a victim's being under a certain age, it is an affirmative defense that, at the time of the alleged offense, the defendant(1) reasonably believed the victim to be that age or older; and
(2) undertook reasonable measures to verify that the victim was that age or older.
Alaska Stat. § 11.41.455(b).
Although Alaska's mistake-of-age defense is not as uncommon as it once was, it remains a minority position in the United States. See 2 Wayne R. LaFave, Substantive Criminal Law § 17.4(c), at 650 (2d ed. 2003) ("Over a third of the states have adopted statutory provisions recognizing mistake-as-to-age as a defense, at least as to some ages."). Varying mens rea requirements are specified in the various state statutes (e.g., negligence, recklessness). Id. at 651. The majority position remains strict liability, however. Although even some majority states create exceptions. See, e.g., Tex. Pen. Code § 22.001(e) (generally providing an affirmative defense if the defendant can show that he was not more than three years older than the minor at the time of the sexual contact and the minor was at least 14). Accordingly, any characterization of "majority" and "minority" positions must be tempered somewhat.
So what compels me to revisit this issue? Well, Tainted Law, brings to my attention the fact that the Alaska trial is not proceeding smoothly. The News-Miner reports that there is apparently conflict among the jurors. Motions for mistrial have apparently been lodged and denied. And, among other things, juror misconduct is alleged. The jury has been deliberating since October 17th.
However, the most noteworthy paragraph dwells on different details:
Vijay and Prasad Lakireddy had sought to have the charges against them dropped, saying that a translator encouraged victims to embellish their stories and that a second interpreter overstepped his bounds in a letter to a judge urging a harsh sentence for their father. The flap over the interpreters resulted in the dropping of a sexual misconduct charge against Vijay Lakireddy.
This bit about the court interpreters is remarkable and worthy of a story in its own right. Courts with heavy criminal dockets in the American Southwest, for example, rely on the integrity of translators. Because the most frequent language at issue in that region is Spanish and the AUSAs and Federal Public Defenders frequently speak Spanish as well, there is less danger of such hijinks. But in a more cosmopolitan district (e.g., S.D.N.Y.), interpreter wrongdoing could lead to a real miscarriage of justice.
If the allegations are true—and it's hard not to give them some credence given that the government actually dropped some charges as a result—the instant translators ought to lose their jobs. Soliciting embellishment of testimony ought to lead to criminal indictment. Without having done any research, indictment under 18 U.S.C. §§ 242, 1001, 1503(a), 1623 (criminal provisions regarding deprivation of civil rights, false statements, corruptly influencing jurors or officers, and false declarations before a court respectively) might be prosecutorial possibilities depending on the circumstances involved.
NEW DELHI, India—Hundreds of fans of India's top rock star Daler Mehndi have turned to foes, jeering and heckling the Punjabi singer after he gave himself up to police to face charges of human trafficking.
Carrying banners and placards, a mob of 1,500 greeted Mehndi, 36, late Monday as he entered the police station in India's northern Punjab state, throwing paint on his Mercedes car and blocking his way, the Press Trust of India reported.
"Daler Mehndi die die," screamed some fans. Others tried to assault the turbaned star as he braved the crowd before entering into the police station, PTI reported.
Readers, no doubt, recall his smash hit Tunak Tunak Tun.
(CNN link via Ken Lammers.)
Don't move, sir. There's a tarantula on you.I understood her words, their import just did not quite register at first.
My day began normally enough. I went through my usual routine: shave, shower, vitamins, coffee, et cetera. It was colder than normal this morning. In fact, it was downright chilly for this area. A front had moved in over night. It had brought rain with it as well.
So I grabbed my raincoat on the way to the door. It was where I had left it weeks before: crumpled up in a corner of the bedroom. (Despite plenty of closet-space, this is my usual custom regarding coats.)
It's on the collar of your jacket—on the inside.
Now, I have actually held a tarantula before. Friends of mine once owned one as a pet. They are fairly harmless and docile. Indeed, they seem completely unperturbed by human contact. They are common in the area in which I currently live. One sees them with some regularity.
Notwithstanding this familiarity, it is difficult to remain level-headed when taken by complete surprise. I was at the drive-through window of the local cleaners when the clerk informed me of my unexpected passenger. Her abject fear did not help matters. As our very brief conversation progressed, I could see the horror welling up in her eyes. Under further interrogation she stated that it was small one, but no one gets that look on her face over a small spider. Besides, size is a matter of perspective. When a tarantula is nestled against your neck, it is never small.
So I put the car in park, opened the door, and stepped out. I slowly took the jacket halfway off. Having removed it from the vicinity of my neck, I ripped it off the remainder of the way. The arachnid either flew off as a result of my rapid disrobing, or jumped off of its own accord. Unfortunately for the clerk, it jumped in her general direction—into the doorway near the drive-through. This was even more unfortunate for the spider, as his destination required me to step on him as a matter of chivalry. (Apologies to the excessively kindhearted: I only handle tarantulas that have been vouched for by friends and with advance notice.)
Small, incidentally, turned out to be about two-inches in diameter. How did I not feel that on my own? I'm not sure where it came from. Was it on my coat when I picked it up? Did it drop on me from the archway outside my door Raiders of the Lost Ark style? Or was it in my car? It could have been in any of these locales or elsewhere. Given the chill in the air and the rain, it was probably looking for a dry, warm shelter. Although the crook of my neck matches this description, it is not the most welcome location.
It would be a shame to lose Tainted Law. Although I do not necessarily share his views, Taint's acerbic wit and talent for exaggeration and caricature are often priceless. Properly goaded, one can even get him to offer some straightforward (and insightful) legal analysis. Nonetheless, I can appreciate his situation: work comes first. In this vein, the practice of law can effectively kill your blog in more than one way.
For my part, I have managed to avoid the dilemma that faces Taint by (a) maintaining a strict separation between the workplace and my blog topic-wise, (b) doing my best to maintain my pseudo-anonymity, and (c) being even more antisocial than Taint apparently has been. Just remember Taint, you cannot accidentally blog about those with whom you daily come into contact if you refuse to have any contact with the outside world! I suppose that's easier for a curmudgeonly clerk to manage than a practitioner.
For hundreds of years, he was left shattered after falling off a wall but Humpty Dumpty has been put back together in a politically correct version of the nursery rhyme.
Tapes sold at Mothercare have added an extra verse to the children's favourite after the original was deemed too upsetting.
After hearing the tale about how Humpty could not be put back together again, children are now told: Humpty Dumpty opened his eyes Falling down was such a surprise Humpty Dumpty counted to 10 Then Humpty Dumpty got up again.
The article linked above notes that many Mother Goose rhymes would require such tampering if this logic were embraced. Of course, some rhymes would have to be excised altogether. Three Blind Mice exhibits cruelty to animals. Simple Simon is insensitive to the mentally handicapped. A Little Man is absolutely horrid: it is potentially offensive to diminuitive folk and features the use of firearms and inappropriate gender stereotypes. Speaking of inappropriate gender stereotypes, there is Miss Muffet. Oh dear, that will never do. Perhaps, it is retainable though if changed to Ms. Muffet. Goosey, Goosey, Gander depicts a hatecrime (i.e., violence fueled by religious intolerance). Old Mother Hubbard features alcohol and smoking. Jack Jelf slights the learning disabled. Georgy Porgy involves sexual harassment.
And this is just the beginning. Grimms' Tales and the fairy tales of Hans Christian Andersen will require some real work. I'm sure that the folks at Mothercare are equal to the task, however. Some people are especially gifted at finding offense in things where others have somehow missed it.
(Sunday Mail link via Tongue Tied.)
During oral argument in Grutter, Justice Antonin Scalia said, "[I]f Michigan really cares enough about that racial imbalance, why doesn't it do as many other state law schools do, lower the standards, not have a flagship elite law school? It solves the problem." Such disquieting logic fails to appreciate that high standards and diversity are compatible and, indeed, complementary.
I think that this writer's reasoning sums up, in large part, why I oppose educational diversity initiatives. The only "disquieting" aspect of the foregoing passage is this student's detachment from reality. No one disputes that certain ethnic groups routinely score poorly on the LSAT on a whole. Proponents of diversity instead tender unsustainable claims of bias regarding any objective criteria that gets in the way of the desired outcome.
The simple truth is that, at present, high academic standards and "diversity" (read: university admissions racially proportionate to each group's population outside of institutions of higher education) are not compatible in the context of the nation's elite law schools (e.g., UVA). If they were, then there would be no need for diversity initiatives in the first place. Papering over this fact will only prolong the underperformance in question. Those who wish to cure the disease must first accurately diagnose the ailment.
(WP link via SW Virginia Law Blog.)
After one recent Saudi-related hearing in a wood-paneled courtroom inside London’s gothic Law Courts complex, one of the British barristers (trial lawyers) in the case told journalists "Say what you like about Osama bin Laden. He's done wonders for the defamation [libel] bar."
Shouldn't a quote this mindnumbingly insipid be attributed by name? Imagine, for example, the fate of a corporate executive who publicly commented, "Say what you want about Saddam Hussein. He's done wonders for Lockheed Martin." Or, returning to bin Laden, imagine a general contractor tasked with rebuilding the area once occupied by the Twin Towers making a similar statement.
What sticks in my craw about this comment is its glib callousness. Whether the barrister in question is a plaintiff's lawyer delighted at the prospect of new business or a defense attorney subtly tarring the opposition, his remarks make light of terrorism and its victims in a fashion that is bound to offend. Trial lawyers, who earn their living with their tongues, ought to be better spoken. Say what you want about this barrister, but he is not doing wonders for the reputation of the British bar.
(Link via Virginia Postrel.)
(Link compliments of Electric Venom.)
For the most part, I disapprove of blogging anonymously in any blog written for public consumption, particularly if you want to talk about your social setting.
Rickey acknowledges, however, that some may have compelling reasons for doing so, adverting to yours truly. As I have previously written, I blog on an anonymous basis due to my employment as a federal law clerk. Nothing in the Code of Conduct For Judicial Employees compels this result; anonymity merely seems a prudent corollary to the Code's relevant provisions.
However, what we are really talking about is pseudo-anonymity. Although there is at least one service that purport to provide genuinely anonymous blogging, the identities of pseudo-anonymous bloggers like myself are not a state secret. One of my readers who is a fellow blogger once wrote in to tell me that he knows exactly who I am. Others have had similar experiences. Scheherazade Fowler was quickly found out despite her initial inclination to anonymously publish. At least two bloggers have written about being confronted about their blogging during interviews, apparently without unhappy results.
My anonymity is really just a convention. I agree not to disclose my identity to spare my judge any association with my online musings and readers essentially agree to honor that decision as a courtesy. But if readers or fellow bloggers were disinclined to do so, I am confident that they could discover my identity with relative ease and disclose it as they saw fit. I would rather that they not do so, but I can only control my conduct.
Regarding self-control, both Fowler and Rickey discuss what the latter terms "self-censorship" with approval. I generally agree with these sentiments, though I have always thought of this restraint as "editing" rather than "censorship." One of the things I most enjoy about blogging is its unmediated nature; I am the author and editor. I appreciate the unfettered discretion that self-publication provides, but, as is always the case, freedom is accompanied by risk. As recent events demonstrate, when bloggers are judged to have abused their discretion, the consequences can be severe. It is difficult to imagine that the faux anonymity provided by the Internet would forestall such a reckoning in the event of such indiscretions, particularly if the offended parties are sufficiently incensed and/or motivated. At least one very high profile blogger has had his online "anonymity" compromised in a very personal fashion.
The Socratic method is not as ominpresent as it once was in law schools, but it is still widely used, more or less, in most law schools, by most professors, at least some of the time.
And that's a scandal. For there is no evidence—as in "none"—that the Socratic method is an effective teaching tool. And there is much evidence that it's a recipe for total confusion.
What is even more scandalous is that this is an open secret. That is, everyone who has sat through a first year law school class knows that the Socratic Method is an actual impediment to learning. Any law student can regale you with tales of the inefficacy and inefficiency of this pedagogical (mal)practice.
On occasion, students do manage to exact their revenge, however. One day in my first year Criminal Law class, the professor was mercilessly grilling a rather reticent female student. He asked her to recite the facts of a case. When she began a meandering recital replete with irrelevancies, he began to mock her. He proceeded to interrogate her; each question was dripping with sarcasm and condescension. The purport of his inquiries could not have been more clear: he wanted her to focus solely on the material facts. She, however, was too befuddled and flustered to grasp his point. So the professor proceeded to the student seated next to her and asked, "Why am I mocking her?" Unfortunately for the professor, this student was honest to a fault. Without pause, he responded, "Because you are a jerk."
When it comes down to it, Estrich is a good feminist. She is far more balanced, articulate, and intellectually rigorous then most of the people who fit into that category; she rises above them with a sense of humor and humility.
* * *
Estrich has the grace to be honest about her reversals and the ambiguities they raise. That alone lifts her above myriad pundits, chatterers, and feminists.
Frankly, if intellectual honesty is Estrich's distinguishing hallmark, I have failed to notice it. Indeed, her most recent shenanigans revealed either disingenuousness or ignorance. Given her general background and purported expertise in the area under consideration, it is somewhat difficult to believe that the latter might be the case. Moreover, Estrich herself, more or less, tells people to regard her views as positions of political convenience and expediency. Roiphe writes:
She nakedly states the political motivations behind some of her shifts of position, explaining, "[T]he core of the dispute is not about what's welcome and what's unwelcome in terms of sexual harassment, but whose ox is being gored."
In other words, all that Estrich is apparently "honest" about is being dishonest. Earlier in the article, Roiphe offers examples:
She writes in Sex & Power that Clinton "was being wrongly accused. And the rules I had supported and helped to create . . . were the means of waging that attack." She talks about how her attack of Clarence Thomas "came back to haunt many of us years later, when the issue was not crude jokes but sex between the president and an intern."
But, of course, Clinton was not being wrongly accused. One can maintain that the accusations didn't amount to much even if true, but Clinton was guilty as charged and the charges were practically a paradigm instance of the sort of untoward workplace conduct betwixt male authority figures and disempowered female subordinates decried by feminists. Roiphe quotes from Estrich's Real Rape to devastating effect on this point:
"Many feminists would argue that so long as women are powerless relative to men, viewing a 'yes' as a sign of true consent is misguided. For myself, I am quite certain that many women who say 'yes' to men they know, whether on dates or on the job, would say 'no' if they could. I have no doubt that women's silence sometimes is not the product of passion and desire but of pressure and fear."
Estrich's admission that her principles "came back to haunt" her is revealing. Her phrasing does not indicate that she had a gradual change of heart or rethought her position over time, so much as her ideas suddenly turned out to be unpalatable when it became apparent that they would have to be applied in a nonpartisan manner. When faced with a choice between her "principles" and politics, Estrich abandoned the former in favor of the latter. That's not feminism, it's opportunism.
Regarding Estrich's recent bizarre and inaccurate defense of Schwarzenegger, Roiphe notes a detail that I also found curious:
It may or may not be relevant to all this that she was one of the Democrats later named to Schwarzenegger's transition team.
It is funny how often two people can look at the same facts, ask the same questions, and yet arrive at diametrically opposed conclusions. I have no reason to think that Roiphe's conclusions are not offered in good faith. Unfortunately, I cannot say the same for Ms. Estrich.
One of the show's executive producers, Cris Abrego, said the casting process took a long time, in part because so many people wanted to join the cast.
"Having a revolving, big celebrity guest star every week—that person becomes our seventh cast member," he said, noting that the guest celebrity will live in the house with the six regulars.
The second "Surreal Life" installment takes place in the same house used earlier this year for the first season, although Abrego said it's been injected with a heavy dose of "bling-bling."
"It's very pimp, very Austin Powers love shack," he said.
Doesn't that little snippet tell you everything you need to know about the show and its quality? I know that there are intelligent, reasonable people who consume this sort of fare, but I am hardpressed to comprehend this phenomenon. Much as I do not understand why people choose to feed their bodies with fast food, I just do not understand why people feed their brains with "reality" television. A steady diet of either just isn't healthy.
Update. Apparently, I am not alone in my assessment of the value of television programming. Glenn Reynolds links to this New York Times story. Among the more juicy morsels is the fact that some serious money is involved due to the nature of advertising contracts. In particular, readers should take note of some of the comments from network executives. It's almost as if they are already planning for litigation . . . .
The network's apparent preemptive defense is delicious. The very people responsible for the abominable state of television deny responsibility and instead maintain that the Nielson service must just be underreporting their audience. Anything is possible, I suppose. But if may, might I suggest that Defense Exhibit A consist of five minutes of Mr. Abrego's The Surreal Life?
Justice Brown is not qualified to serve on the Court of Appeals for the D.C. Circuit. Our nation’s courts of appeals are almost always the courts of last resort for Americans who use our federal courts, and of the appellate courts, the D.C. Circuit is the most powerful. With exclusive jurisdiction over many laws affecting the workplace, the environment, civil rights, and consumer protection, and as the primary court for interpretation of administrative law, the D.C. Circuit has a uniquely important role in our system of law and justice. Accordingly, the men and women appointed to this court should be highly regarded by their colleagues and those who will appear before them. Justice Brown does not inspire such confidence in her peers. The American Bar Association Ratings Committee gave her a majority "qualified"/minority "not qualified" rating. No member of the Committee found her to be "well-qualified." She is only the second sitting judge nominated by President Bush to an appellate court who has received a partial "not qualified” rating from the ABA. Her nomination to the California Supreme Court was also marked by similar concerns.
The CBC's press release and the attached letter makes it clear that it opposes Brown for substantive reasons as well. Indeed, the substantive disagreements are the real ones. This bit about the ABA's assessment of Brown's qualifications is just a bit of opportunistic nonsense.
It is a matter of public record that neither party cares one whit what the ABA thinks. Indeed, it seems fairly obvious that the Congressional Black Caucus does not truly care what the ABA thinks. After all it opposed the nomination of Miguel Estrada, notwithstanding his unanimous endorsement of "well qualified" from the ABA.
In addition, the CBC has crafted its ABA-based argument in a manner that is fairly misleading. In the excerpt above, Congressman Cummings writes that Rogers "is only the second sitting judge nominated by President Bush to an appellate court who has received a partial 'not qualified' rating from the ABA" (emphasis added). But, of course, the ABA has given many of Bush's appellate nominees a partial unqualified rating: Claude A. Allen (4th Circuit), Carlos T. Bea (9th Circuit), Steven M. Colloton (8th Circuit), William Gerry Myers, III (9th Circuit), William H. Pryor, Jr. (11th Circuit), and Timothy M. Tymkovich (10th Circuit). By limiting itself to consideration of "sitting judges," the CBC is simply trying to turn otherwise useless data into a favorable statistic and talking point. Moreover, when it comes to evaluating nominees who are sitting judges, members of the Congressional Black Caucus have not been supportive of Priscilla Owen's nomination despite her unanimous "well qualified" rating by the ABA.
There is some reason to think that the ABA is less than accurate in its assessment of nominees. As Stuart Buck points out, some excellent judges have received a partially "not qualified" rating. Astoundingly, the ABA merely thought Richard Posner to be "qualified/not qualified," for example.
Whatever the merits (or demerits) of the ABA's methods and conclusions, no one really rests their views of a nominee on the ABA's measure. Indeed, the ABA's ratings are more of a distraction than anything else, inasmuch as they are disingenously employed as a proxy for other (more likely political) objections. Judging from the general tenor of the CBC's opposition, what is more likely at issue is Brown's political and judicial philosophies, not her qualifications.
Update I. Howard Bashman previously noted that New York Times reporter Neil Lewis made a similar mistake regarding the ABA's ratings and Janice Brown. See Neil A. Lewis, Battle Lines Already Forming Against a Bush Court Selection, New York Times, Oct. 18, 2003 ("Justice Brown is the only Bush appeals court nominees [sic] to date who has not received a strong endorsement from the American Bar Association."). The ABA's actual ratings confirm Bashman's criticism. Although the Times has corrected another error contained in Lewis's story, it has not yet set the record straight on this matter. (Thanks to Pejman Yousefzadeh who reminded me of this error via one of his posts.)
Update II. Professor Yin makes a nice point that potentially undercuts my assessment of the CBC's regard for the ABA's ratings. I do not happen to have the sort of data that he suggests would support or detract from my position. (I have looked for some such information on the Internet and drawn a blank.) The CBC's own press release (with the accompanying letter) itself gives the impression that the ABA rating is an afterthought rather than a threshold matter where Brown is concerned.
On this issue, one future case that may be worth watching is the nomination of Claude Allen to the Fourth Circuit. Allen is also a black nominee and has received the same ABA rating as Brown. His background (e.g., former member of Jesse Helms's staff) is precisely the sort that should draw the CBC's ire. Yet the CBC has been absolutely silent on his nomination. (Allen was nominated in April of 2003. His hearing is apparently scheduled for next Tuesday.)
Others have addressed the issue in less thoughtful ways. So for those who prefer arguments to be scrawled in marker on bathroom stalls, there is a venue for you too.
The link is to a post written by Atrios, which, in relevant part, reads:
What Dahlia said. And Gregg Easterbook is a dick. A real fuckwit. I really don't get these people who think a serious problem facing this country is an epidemic of men who were accused of rape because they thought 'no' meant 'yes' when it actually meant . . . 'no.' I'm sure men get falsely accused of rape, as they do everything else. I think guys like Easterbrook are just upset that the law constrains them from being sufficiently aggressive in their sexual encounters, and they'd only get laid more if they felt comfortable putting on just a little more pressure . . .
Ultimately, you the reader will have to decide whether, in context, my aside constitutes a "personal attack," but I think that Baude's conclusion is misplaced. My remark is obviously directed at Atrios's rather juvenile argumentation. I realize that there exists a class of Internet "ranters" who think that nearly every argument ought to be made in a Tarantinoesque vernacular. Obviously, there is quite a market for Atrios's particular approach. That's fine. But I hardly think that anyone can complain if I fail to take such writing (or writers) seriously.
The tone adopted by Atrios in the aforementioned post is particularly grating when the people involved are woefully underinformed. Atrios and Lithwick, upon whom Atrios relies, simply have no idea what they are talking about in terms of the law where rape and consent are concerned. Ignorance is a frequent but poor foundation for condescension. Mind you, I also wrote "that Easterbrook's particular suggestion is silly beyond words," but the underlying concerns that served as the impetus for his suggestion are hardly benighted. Easterbrook's post merited more than Lithwick's vacant and legally ill-informed sloganeering. It certainly merited better than name-calling (e.g., "fuckwit") and ridiculous and unanswerable "Type M" argumentation (e.g., ". . . guys like Easterbrook are just upset that the law constrains them from being sufficiently aggressive in their sexual encounters . . ."). Moreover, Atrios committed one of the cardinal sins of blogging: attacking an author without providing a link to the article in question when such a link is clearly available.
Baude appears to be criticizing me for personally attacking Atrios. My admittedly subjective take is that Baude is mistaken. In this particular exchange, the personal attacks are all on Atrios's part, and I merely criticized the content of his post as being akin to what one finds scrawled on bathroom stalls. I think that criticism is fair, accurate, and not at all personal.
HOUSTON, Texas (AP) — A grand jury lambasted the Houston Police Department's DNA lab as incompetent and mismanaged but closed out its six-month investigation Thursday without indicting anyone.
"There seemed to be a total lack of concern about profound errors committed by certain members of the lab's staff," grand jury member Joe King said as he read from a statement on behalf of the panel.
"Although seemingly criminal, these acts do not meet the necessary requirements for indictment."
The HPD DNA lab has apparently been shut down and independent labs are in the process of verifying its results in criminal cases. One man convicted of rape in 1999 has already been released as a result of HPD's botched DNA work. The Houston Chronicle reported earlier this year that retesting revealed that the man in question "could not have been the rapist Harris County prosecutors said he was." Other cases have been called into question as a result of this fiasco as well, including at least one other sexual assault case. Inquiries into the matter also revealed that the lab's staff were unqualified for their positions and that the lab's erstwhile director misrepresented his own qualifications in open court.
Obviously, DNA evidence is not critical in every instance. But it is important enough in every case in which it is involved that the state must absolutely be committed to getting it right. If laboratory misfeasance places innocent defendants behind bars, then laboratory personnel ought to be indicted. If the present law does not allow for such indictments, then, perhaps, the relevant law needs to be revised.
Using the ESPN site's search function for "Easterbrook" returns you to the main page as if the search had never been entered. I confirmed this myself. What's even odder is that if you select "web" rather than "site" and conduct the same search, you still end up back at ESPN's main page, again as if the search had never been conducted. It is as if ESPN is not only denying their former association with Easterbrook but his very existence. ESPN has declared Easterbrook to be an unperson.
This last bit is just strange. ESPN's heavyhanded approach is also hamhanded, as certain search results turn up references to Easterbrook's column, "TMQ." ESPN has deleted the actual columns, however.
If ESPN is going to resort to such Orwellian measures, it should probably become a little more technically proficient at expunging the historical record. ESPN's conduct also strikes me as borderline-dishonest. If a website has a search feature that indicates that one may search the world wide web, then the search feature ought to actually do so. (Obviously, a bona fide web search for "Easterbrook" turns up a multitude of results.)
I have not formed an unshakable opinion on Easterbrook's remarks. I am not a fan of Easterbrook's writing in general. However, my initial impression is that his critics have overreacted. Easterbrook wrote:
Set aside what it says about Hollywood that today even Disney thinks what the public needs is ever-more-graphic depictions of killing the innocent as cool amusement. Disney's CEO, Michael Eisner, is Jewish; the chief of Miramax, Harvey Weinstein, is Jewish. Yes, there are plenty of Christian and other Hollywood executives who worship money above all else, promoting for profit the adulation of violence. Does that make it right for Jewish executives to worship money above all else, by promoting for profit the adulation of violence? Recent European history alone ought to cause Jewish executives to experience second thoughts about glorifying the killing of the helpless as a fun lifestyle choice. But history is hardly the only concern. Films made in Hollywood are now shown all over the world, to audiences that may not understand the dialogue or even look at the subtitles, but can't possibly miss the message—now Disney's message—that hearing the screams of the innocent is a really fun way to express yourself.
It seems to me that a fair reading of what Easterbrook actually wrote of was his apparent surprise that Jewish Hollywood executives would not be more sensitive to the potential effects of depictions of violence on the silver screen, given the sad history of violence directed at Jews. Easterbrook has subsequently written that this was precisely his intent and has conveyed his apologies for expressing his sentiments in a fashion that might be thought to express anti-semitism. He also attributed any such misunderstanding to his own poor drafting.
In short, he accepted responsibility for his own words. It's also quite clear from Easterbrook's own religious faith that charges of anti-semitism are misplaced where he is concerned. Therefore, I am inclined to give Easterbrook the benefit of doubt in this instance. At least one other thoughtful commentator has arrived at a similar conclusion.
Having said that, I think that Easterbrook's overall points are ridiculous and worthy of condemnation on a purely intellectual level. For example, for reasons pithily expressed by Virginia Postrel, Easterbrook's criticism of cinema violence is "morally . . . obtuse." In addition, it's not as if there is a Christian or Jewish prohibition on literary or film violence. If there were, multiple stories from the Old and New Testaments would have to be expurgated.
Update: Greg over at Begging to Differ has also offered some pointed criticism of ESPN:
But to say ESPN can do something isn't the same thing as saying it should. On the contrary[,] ESPN did the wrong thing here. If pressed to respond, ESPN will no doubt point out that Easterbrook's comments (not at ESPN) were "hurtful" or "insensitive." Yeah, those are called opinions. They're like that sometimes. But the answer isn't to bury opinions and pretend they never existed. That is the antithesis of Free Speech. No, I'm not talking about the First Amendment, which doesn't apply in this context at all. (Let's see: "Congress shall make no law . . ." Um, yeah.) But there's more to Free Speech than the First Amendment. Just ask John Stuart Mill. Mill wrote, in On Liberty . . . .
Everyone always professes to believe in a generalized right to "free speech"—unless, of course, that means having to tolerate opinions with which they disagree. Life is filled with these dime store tyrants who view your supposed rights as privileges that are wholly dependent on their good will. But offer even the slightest criticism of their cherished sentiments and cries of "McCarthyism" and "censorship" fill the air.
State Farm Insurance will not have to pay thousands of dollars to a woman who was kidnapped and raped in her car in 1998, the Colorado Supreme Court ruled Tuesday.
The woman filed an auto-insurance claim under the personal-injury and uninsured-motorist provisions of her policy, seeking thousands of dollars to cover her physical and mental injuries.
The seven-member court split 4-3 in overturning appeal and trial-court decisions that insurers argued could have opened them to large claims that car insurance was never meant to cover.
A lower Colorado appellate court had ruled the opposite way.
As a sidenote, the Post declines to print the insured's name, citing a policy of not printing the names of victims of sexual assault without permission. While I do not necessarily have any problem with this practice, it seems quite peculiar in this instance. The insured's name is listed in the caption of the state court decision, an available public record. See State Farm Mut. Automobile Ins. Co. v. Kastner, No. 02SC258, __ P.3d __, 2003 WL 22331874 (Colo. Oct. 14, 2003).
Writing for the majority, Justice Kourlis summarized the court's holding as follows:
. . . We granted certiorari on the question of whether injuries caused by a sexual assault in an automobile arise out of the operation, maintenance, or use of a motor vehicle for purposes of personal injury protection or uninsured/underinsured automobile insurance coverage.
Resolution of this case requires us to determine whether the injuries associated with the sexual assault are causally related to a "use" of the claimant's motor vehicle. We now hold that (1) where the motor vehicle is being used in a manner reasonably foreseeable at the time the parties contracted for the insurance and (2) the "use" of the vehicle is inextricably linked to the plaintiff's injury, the plaintiff is entitled to recover. Both because we conclude that the use was not reasonably foreseeable and because we conclude that the sexual assault had an insufficient causal nexus with use of the vehicle, we now hold that Kastner's State Farm policy did not cover her injuries. Accordingly, we reverse the court of appeals, and return this case to the trial court with directions to enter summary judgment on State Farm's motion.
Id. at *1.
The facts of the case were stipulated by the parties.
. . . Those facts disclose that on December 8, 1998, Christina Kastner was shopping at the Citadel Mall in Colorado Springs. When she left the store sometime after 7:30 p.m., it was dark. Her car was parked about ten cars down from the closest parking spot on the east side of the shopping center. The lot was relatively full and there were cars parked on both sides of Kastner's car. Kastner was standing at her car and had unlocked the car door when she saw a male just to the south of her and directly behind her car. She then opened the door to the car and was standing between the car seat and the open door when the male began asking for directions. Kastner believed that the male had been hiding either behind and to the side of her vehicle or behind the vehicle next to hers because she did not notice him until she reached her car.
Kastner had no reason to believe that the male used her vehicle in some way to identify her as a potential victim. As Kastner was responding to the request for directions, the man quickly moved beside her and ordered her to get into the car. She saw something in his hand that she believed to be a knife or gun. Kastner tried to get away from the man by pushing him in the face, but he moved the object toward her and she noticed that the object was a knife. He ordered her to the passenger side of the car, and he grabbed the keys to the car from her hand. She obeyed the man's instructions to get into the front passenger seat of the car, put the seat back and get down as far as possible. The man then entered the driver's side of the car and drove her car from the lot.
He took Kastner to Palmer Park, a wooded park in Colorado Springs. Along the way, he pointed a knife with a 6" to 8" blade at her, yelled at her to stay in the car and threatened to kill her. At Palmer Park, he pulled off the road in an isolated area. He robbed her of $150, and demanded that she disrobe. She opened the passenger door to attempt escape, but was held in by her automatic seatbelts. The man immediately grabbed her by the hair and placed the knife blade on her throat. He then sexually assaulted her in the car with the knife at her back. After the assault, he drove out of Palmer Park and pulled into a liquor store parking lot. He threatened her and her children with bodily harm if she reported the assault, got out of the car and walked away. Kastner immediately drove to the police station to report the incident.
Id. at *1-2.
The insurance policy had a pesonal injury protection provision in compliance with Colorado's no fault law as well as an uninsured/underinsured motorist provision. Id. at *2. Kastner submitted claims under both provisions. Id.. The respective provisions provided that:
"We will pay in accordance with the No Fault Act for bodily injury to an insured, caused by an accident resulting from the use or operation of a motor vehicle."
"We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be caused by an accident arising out of the operation, maintenance or use of an uninsured motor vehicle."
The case apparently turned on whether there was a sufficient causal connection between the use of the vehicle and the sexual assault. See id. at *2, *4. I know little about insurance law, but it seems odd to me that the term "accident" in each clause did not preclude coverage as a matter of law. What happened here was clearly not an accident in any sense of the word. But the law is frequently not commonsensical, so some nuance of insurance law may account for this peculiarity. The court specifically declined to address this particular issue, but cited prior precedent that indicates that it is entirely possible that the sexual assault qualifies as an "accident" under the terms of the policy. See id. at *4 n.1.
Perhaps, however, the court is indirectly accounting for this fact when it writes of the provisions that:
Since both the UM and PIP policy provisions are express attempts to conform to statutory requirements, our interpretation of their terms should reflect the overall legislative purpose of the UM and No Fault statutes. Consistent with both the legislative declaration and the general purpose of automobile insurance, our previous cases have interpreted the No Fault Act as providing a floor of recovery for the injuries of policy-carriers for the type of risks one would expect an insurance contract to cover. Thus, the legislative intent of the statutes controls our interpretation of the policies.
Id. at *3 (internal citations omitted) (emphasis added); see also id. at *5 ("Whatever the use, it must be one that was contemplated by the parties to the insurance contract, and must be 'inherent in the nature of the automobile [ ] as such.'").
The caselaw is not entirely on the side of the majorty, however. For example, the court writes that:
We have previously observed that using a car merely to help carry out a criminal act is not the kind of "risk that the automobile insurance contract was meant to cover." Instead, where the act causing the injury is intentional, the "use" of the vehicle must bear a direct relation to the assault.
Id. at *8 (internal citation omitted).
Yet just prior to making the above observation, the court acknowledged a prior case in which "the intentional nature of a drive-by shooting did not preclude a finding that injuries were 'caused by an accident' for purposes of UM coverage." Id. So drive-by shootings are covered by car insurance policies, but sexual assaults facilitated via carjacking and kidnapping are not? Why?
The court does offer some distinctions between the two sorts of cases. For example, the former apparently involve "'one ongoing assault'" in which the "injury flows directly from the 'use' of the vehicle." Id. In addition, in one of the shooting cases noted the insured was in his own vehicle while the assailant was likewise in his own vehicle and employing it to position himself to shoot the victim. Id. at *9. These are distinctions, but ones which only lawyers could appreciate, I suspect.
Of course, my criticism of the majority's reasoning is itself question-begging. Should drive-by shootings be covered by car insurance policies in the first place? Is that a risk that the average insurance consumer is seeking to insure himself against? Nonetheless, even if one is as skeptical as I am, the majority's handling of prior precedent is, perhaps, questionable.
There are, however, cases with similar holdings to the result reached by the majority. For example, the Colorado Supreme Court cites Am. Property and Cas. Co. v. Julie R., 90 Cal. Rptr. 2d 119, 123 (Cal. Ct. App. 1999) ("Applying the predominating cause/substantial factor test to the facts of this case, we find that the "use" of Aazami's BMW in the rape of Julie R. was incidental to, and not a substantial factor in, the infliction of injury on Julie R."). Curiously, the insurer in Julie R. also did not raise the non-accidental nature of the conduct at issue as a defense to coverage either. Id. at 121 n.1.
Returning to the issue of whether the non-accidental nature of rape ought to preclude policy coverage, there are cases that have effectively held so in the context of homeowners' insurance. See, e.g., Mutual Fire Ins. Co. v. Hancock, 634 A.2d 1312, 1313 (Me. 1993) ("Mutual carried its burden to prove that Hancock intended or expected the harm to Doe. Therefore, the policy exclusion applies to excuse Mutual from its duty to indemnify Hancock for the damages awarded to Doe."). The policy in Hancock expressly included a clause excluding intentional bodily injury from coverage. See id. (policy included clause "denying coverage for 'bodily injury or property damage . . . which is expected or intended by the insured'"). However, this line of cases is obviously distinguishable on the ground that it concerns coverage under the assailant's policy not the victim's. That is, Hancock does not involve a rape victim attempting to recover under her own homeowners' policy.
In circumstances in which consent is disputed, however, it is possible that an insurance company might have a duty to defend a defendant in a rape-related suit. See Pistolesi v. Nationwide Mut. Fire Ins. Co., 644 N.Y.S.2d 819 (N.Y. App. Div. 1996). In Pistolesi, an insured argued as much:
"According to plaintiffs, the unintended results alleged in the fifth cause of action could have occurred because the insured may have acted in the belief that the victim had consented to the act of sexual intercourse when in fact she had not consented. Thus, plaintiffs argue, if the trier of fact finds that the insured was merely mistaken in his belief that the victim consented, insurance coverage would attach."
Id. at 820.
The Pistolesi court rejected this argument, but appears to have done so primarily because it considered the facts to preclude any dispute as to consent. Id. at 820-21. It is not clear that the court would have otherwise been receptive to the plaintiff's action for policy coverage though.
To complete the circle entirely, there is also caselaw regarding insurance coverage and false accusations of rape. See Jeansonne v. Detillier, 656 So. 2d 689 (La. Ct. App. 1995). In Jeansonne, a man falsely accused of rape filed suit against his erstwhile accuser and her homeowners' insurer. Id. at 690. The court recites the following background:
This action arose as a result of the filing of a false felony complaint of forcible rape by Detillier against Jeansonne. On July 18, 1988, Detillier met Jeansonne at a lounge. When the lounge closed, Detillier invited Jeansonne back to her residence where they engaged in consensual sexual relations. Immediately thereafter, Detillier asked Jeansonne to leave and he complied. Within minutes, Detillier telephoned her estranged boyfriend and reported to him that she had been raped. She messed up her bedroom, called the police and reported the rape. Detillier gave a statement to the police, implicating Jeansonne in the rape. Then, she accompanied the police to the hospital where she underwent a rape kit examination. The following day, July 19, 1988, Detillier went to work around noon. The police went to her work and showed her photographs from which she identified Jeansonne as the rapist. On the morning of July 19, 1988, Jeansonne was arrested on the charge of forcible rape. On July 20, 1988, after learning of Jeansonne's arrest, Detillier went to the sheriff's office and gave a voluntary statement, acknowledging that she had falsely accused Jeansonne of rape. Newspaper articles, chronicling the arrest of Jeansonne for forcible rape, had already been published. The newspaper retracted the story the following day.
Jeansonne sued Detillier and her homeowner's insurer to recover damages that he suffered as a result of her false complaint that caused his arrest. He alleged that he suffered great mental anguish, distress, humiliation and embarrassment.
* * *
In the instant case Detillier consistently stated that she did not intend any harm to come to Jeansonne. Rather, her only interest, albeit misguided, was to get attention and sympathy from her estranged boyfriend. She stated that originally, she did not think the police would ever find Jeansonne because she gave them only a nickname and a very limited description. The evidence and testimony indicated that Detillier was consistent at all times that she intended no harm to Jeansonne. . . .
Id. at 690-91.
Given these facts, the appellate court affirmed a trial court ruling that insurance coverage was precluded by a policy exclusion pertaining to "'willful and malicious acts of the insured.'" Id. at 691-93. The trial court had written that:
"This Court finds that as a matter of fact and law that Ms. Detillier's actions were willful and malicious and that by her actions she damaged and injured Mr. Jeansonne. Her failure to anticipate the extent of his damages is not sufficient as it is immaterial whether the defendant intended the actual resulting injuries."
Id. at 692.
The appellate court also affirmed a remittitur of Jeansonne's damages to $50,000. Id. at 693.
The theme of these cases appears to be that insurance policies will not generally provide for coverage of the intentional acts of the policy holder or others. Or at least this seems to be the case where rape is concerned. Read together, the Kastner and Jeansonne decisions suggest a certain symmetry in the law: insurance policies will not provide coverage for either victims of rape or victims of false accusations of rape. I am reticent to draw any firmer or broader conclusions on the basis of the caselaw, given my unfamiliarity with insurance-related law. As Pistolesi, perhaps, indicates, different facts might lend themselves to coverage.
(Link via How Appealing.)
Last month, a Des Moines Area Community College student was arrested in Ames after police didn't buy her story of being attacked with a knife and nearly raped on the ISU campus. The stab wounds on Cindy Schuster-Villafane's arms and chest didn't match her account of the attack, and the man she accused is in a Texas jail, ISU police said.
* * *
A University of Iowa student in February told police she was kidnapped from campus by an armed man and taken to the Quad Cities, where she said she escaped. University police determined she made up the story. The woman, Tiffany Culp of Iowa City, was not charged because she didn't name her fictitious attacker.
* * *
An ISU freshman last year said someone had smashed a window in her Ames apartment, tried to rape her and then left when she screamed for help. But police found blood on the inside of the broken window "when it should have been on the outside, where the person broke in," said Ames police Detective Jerry Spencer.
The student, Sara Palmersheim, was drunk, Spencer said.
She pleaded guilty of filing a false report and was sentenced to probation. Palmersheim did not return to ISU this fall.
This is not to suggest that all or even most reports of crime committed against females, sex crimes in particular, are false. If anything, it seems more likely that the incidence of sex crimes is underreported, though to what extent remains uncertain. See Craig A. Perkins et al., Criminal Victimization in the United States, 1993 (U.S. D.O.J. May 1996) (characterizing rape as a "difficult-to-measure crime"). However, the foregoing stories do provide ample reason for preserving the procedural and substantive legal protections afforded to defendants accused of such crimes.
(Link via CrimLaw.)
Soft and chewy candy is generally categorized by the industry as either "gummy" if it has a primarily gelatin base, or "juju," if it has primarily a starch base. . . .
Sometimes the strangest details emerge in the course of litigation.
(Link via The Importance Of.)
Applewhite, 20, is facing three felony charges for having intercourse and sexual contact with the 13-year-old girl. Applewhite is relying solely on a mistake-of-age defense, admitting he had sex with the girl but arguing that he cannot be convicted of sexual abuse of a minor because he was misled into believing she was 19.
The story goes on to provide myriad of the sordid details, some of which lend real credence to the defendant's story. For example:
Smith's lawyer called as a witness a 24-year-old Fort Wainwright soldier who said he met the girl through Internet chat about three months ago. The girl arranged to meet him in Fairbanks, he testified, and told an identical story about being 19 and working as a Showboat stripper.
At the beginning of the trial, Judge Olsen barred the defense from addressing details of an earlier case that resulted in a man, another Fort Wainwright soldier, being sent to prison on a conviction of having sex with the girl.
Although I have not yet looked into the state statute involved, what initially strikes me as interesting is that the defendant is being allowed to put on a mistake-of-age defense. In many states, sex crimes related to minors are strict liability offenses, which would preclude a defendant from even raising a mistake defense in front of a jury.
Under Texas law, although mistake-of-fact may form a defense when it negates the requisite culpable mental state, see Bagley v. State, No. 08-00-00411, 2002 WL 244831, at *2 (Tex. App.—El Paso Feb. 21, 2002, pet. ref'd) (unpublished opinion), no mistake-of-fact defense is allowed with respect to the victim's age. Black v. State, 26 S.W.3d 895, 898 (Tex. Crim. App. 2000). For purposes of "statutory rape" (i.e., sexual contact with a person under the legal age of consent) under Texas's sexual assault statute, the age of consent is 17. Tex. Pen. Code § 22.011(c)(1).
However, it is generally an affirmative defense to "statutory rape" if the defendant can show that he was not more than three years older than the minor at the time of the sexual contact and the minor was at least 14. Tex. Pen. Code § 22.011(e). The thinking behind this defense is to exempt teenage romances that become physical from the scope of "statutory rape." Kruger v. State, 623 S.W.2d 386, 388 n.10 (Tex. Crim. App. 1981) (Clinton, J., dissenting). That is, the "statutory rape" offense, under which consent is legally impossible notwithstanding the facts, was originally conceived to prevent older men from preying on younger women. Id. at 390.
Apparently under the original English common law, there was no age of consent (i.e., a child of any age could consent to sexual contact). Id. at 387 n.5. This was later altered by statute. Id. A statute enacted during the reign of Queen Elizabeth I (1558-1603) placed the age of consent at 10. Id. Owing to its vintage, this rule placing the age of consent at 10 is frequently referred to as the common law age of consent.
Circa 1856, Texas retained the common law age of consent. Id. at 389 n.13. It was not altered until 1891, when the legislature raised the age of consent to 12 and then raised it again in 1895 to the age of 15. Id. It is not clear why the age of consent was raised, but in 1918 it was raised again to the age of 18 and for the first time the statute elaborated an affirmative defense for defendants in close proximity to the age of an otherwise consenting female minor. Id. The legislative rationale at this juncture was clear: "'the preservation of the purity of womanhood.'" Id. Accordingly, the "statutory rape" offense did not apply to sex with unchaste female minors (i.e., those who had already lost their virginity). See id.
Perhaps, the obvious lesson is that just as "no" does not always mean "no," "yes" does not always mean "yes." Or, more accurately, the law does not recognize certain sexual acts as being consensual no matter what the facts are. This is, of course, something of a legal fiction. While there may be an age so tender, inexperienced, or lacking in judgment as to preclude genuine consent, surely 17 is not the actual threshold. Locating the age of consent at this particular age (or nearly any particular age) is a somewhat arbitrary exercise in line-drawing. Given changing sexual mores and views of female sexuality, should this particular line be revisited? Ought the law recognize a good faith reasonable mistake-of-age defense?
(Story link via Tainted Law.)
(2) Will Baude and I then went back and forth on the merits of Lithwick's counterargument. Timothy Sandefur chimed in with some sensible advice and one of Baude's accomplices, Amanda Butler, weighed in somewhere in the midst of this discussion as well. But no blog posting goes unpunished. So now Bob McGrew of The Cardinal Collective and she are debating the meaning of "preposterous."
(3) Sometime just prior to this most recent conflagration, Eugene Volokh commented. Oddly, he purports to agree more with Lithwick, but has written a post on the meaning(lessness) of the phrase "'no' means 'no'" that seems to have more in common with Easterbrook's position (or at least one of the concerns underlying Easterbrook's position).
(4) Scott over at Life, Law, Libido certainly read Volokh's remarks in this fashion and says so in a post that is highly critical of Easterbrook.
Having said my piece, I'll leave it to readers to sort out who is right and wrong and to what extent. Further provocative commentary on this issue may be found here: Gene Expression, Grammar Police, Half The Sins of Mankind, and Matt's Angry Little Thoughts. Others have addressed the issue in less thoughtful ways. So for those who prefer arguments to be scrawled in marker on bathroom stalls, there is a venue for you too.
Keep in mind that we are discussing fact patterns that will be evaluated by third parties (i.e., jurors) after the fact, when the sole witnesses to the event likely produce testimony that is hard to reconcile. The very issue in these ambiguous consent cases at trial is going to be either whether there was consent or whether it was reasonable for the defendant to believe that there was consent. We are not talking about the purported paradigm cases of rape in which the lack of consent is self-evident on the facts. So when Scott writes that, "[w]omen shouldn't have to have sex when they don't want to," he is really begging the question. No one is asserting otherwise. It's the desire (or lack thereof) and the communication (or non-communication) of this desire that is at issue as well as what legal rules will best serve an inquiry into these matters after the events in question.
Scott writes that "[w]omen shouldn't have to go through the trial of the person with whom they had it" (i.e., "it" being the alleged involuntary sexual encounter) I can only assume that this statement is not intended as a legal one, because to construe it thusly renders it morbidly kafkaesque. (Imagine trials at which the state's sole complainant (and one of only two key fact witnesses whose stories differ) was neither required to be present nor subject to cross-examination. What's next, spectral evidence?) Instead, Scott's point must be rhetorical, which is really the problem with much of his post. He seems more interested in bludgeoning the opposition by attributing views to his opponents that they do not profess (viz. as if the debate is really about whether women ought to be compelled to have sex against their will).
Moreover, this overheated rhetoric fails even on its own terms. Of course, in some moral sense it is a shame that victims must relive their experiences in court. But this is true of all crime victims. For example, an eyewitness may have to testify to the murder of a loved one in order to ensure that a conviction is obtained. Such will be a terrible ordeal to be sure, but it's less terrible than the unconstitutional alternatives.
In addition, Scott seems unwilling to confront inconvenient facts. He portrays all men in these ambiguous consent cases as savages (e.g., he writes "'c'mon, baby, you know you really want this'" as being indicative of the male mindset). Again, this seems to assume what must be proven at trial, but more importantly, it overlooks womens' own testimony regarding the ambiguous nature of sexual initiation and consent. See Charlene L. Muehlenhard & Lisa C. Hollabaugh, Do Women Sometimes Say No When They Mean Yes? The Prevalence and Correlates of Women's Token Resistance to Sex, 54 J. Personality & Soc. Psychol. 872, 874 (1988) (survey of female undergraduate students in Texas indicating that 39.3 percent reported that they had actually said "no" when they meant "yes" and that of those defined as "sexually experienced" 60.8% stated that they had done so). For those who are inclined to assume without proof that all men are inherently unsympathetic to so-called female perspectives on rape, it should be noted that this was a study of women, conducted by women.
Mind you, none of this means that use of the word "no" will be disregarded during a trial involving a sex-offense statute under which guilt or innocence turns on consent. It merely means that it will not be dispositive. "No" becomes one piece of evidence to be assessed in context. See, e.g., Com. v. Berkowitz, 641 A.2d 1161, 1164 (Pa. 1994) (stating that "the complainant's testimony that she stated 'no' throughout the encounter" was "relevant to the issue of consent"). In this regard, Scott writes: "'No' should always be the starting point, and in fact at least a rebutt[able] presumption of nonconsent." What's most peculiar about this position is that it is written by someone who professes to vehemently disagree with me. Such a position is not irreconcilable with the views that I have espoused. It does not happen to be the law in any jurisdiction—to my limited knowledge—but this is probably how many jurors go about assessing such evidence, notwithstanding the absence of a legal framework that requires them to do so. Given the obvious factual relevance of verbal assent or refusal, a presumption probably is not necessary though.
The plight of rape victims is one with which I am sympathetic. It is among the worst of criminal offenses and I believe that the punishment for those duly convicted should be severe. However, it is equally important to formulate legal rules that require the state to meet its burden of proof under all of the relevant facts of each individual case rather than constructing a scheme that allows it to ignore any other circumstances whenever the word "no" has been uttered. The present legal regime takes cognizance of the complete picture. To do otherwise would be unjust to those who must answer such charges in court.
Update. Scott of Life, Law, Libido has written a rejoinder, which may be accessed here. On the factual front he cites some more recent empirical research. See Charlene Muehlenhard and Carie Rodgers, Token Resistance to Sex: New Perspectives On an Old Stereotype, 22 Psychol. Women Q. 443-63 (1998). Scott represents that Muehlenhard retracts and/or qualifies her former research in a material manner. I have yet to examine the article, so I am not in a position to discuss it at present. I encourage those interested in the issue to look into it, however. (I will be doing so myself in due course.)
I imagine that this area of study features conflicting assessments that will have to be evaluated. Other researchers have certainly made more recent statements that would appear to validate Muehlenhard's original thesis. See Mary Crawford & Danielle Popp, Sexual Double Standards: A Review and Methodological Critique of Two Decades of Research, Sex Roles, Apr. 2003 ("Women often believe that they should conform to societal-based standards of morality by resisting their own sexual urges. . . . Girls learn to look sexy but say no . . . . women are expected to refuse sex, acting as sexual gatekeepers and limit-setters."). Interestingly, the Crawford and Popp article references the Muehlenhard and Rodgers study.
On the legal front, Scott cites some cases with potentially useful language for those who find my view of the caselaw (to the extent that I have examined it thus far) unpalatable. See, e.g., People v. Carapeli, 247 Cal. Rptr. 478, 480 (Cal. Ct. App. 1988) ("[A]lthough some words such as 'malice' differ in their legal meanings from their 'plain old English' meaning, the word 'consent' mean[s] the same thing in either its legal or simple English meaning: 'Consent means consent. Yes means yes. No means no.'").
However, it is important to recognize the limited value of Carapeli in the context of the present debate. Carapeli merely refused to give a consent-related definition to the jury in a case in which the facts did not in any fashion support such an instruction either under the facts as alleged by the complainant or the defendant. See id. at 479 (defendant denied material sexual contact alleged). Moreover, the court refused to give the consent definition not because it rejected the defendant's theory that "no" does not always mean "no" (though it did evince considerable skepticism regarding this proposition in dicta), but because the jury was instructed that "they were required to give Carapeli the benefit of the doubt and acquit him of the charges if from all the evidence they had a reasonable doubt whether he reasonably and in good faith believed H. voluntarily consented to or would consent to the touching." Id. at 480. You'll note that the immediately preceding quoted language articulates the very approach about which I have written and that I have advocated.
Scott also quotes from Fletcher v. State, 698 So. 2d 579 (Fla. Dist. Ct. App. 1997). The relevant passage is as follows:
The " . . . her lips said 'no', but her eyes said 'yes' . . ." position of the defendant cannot be condoned by this Court nor will it be accepted as a legal defense to a charge of sexual battery (more commonly known as rape). To do so would, in effect, virtually eliminate sexual battery prosecutions, since every defendant charged with that crime would merely have to assert that he believed that when the victim said "no", she really meant "yes."
Id. at 580.
Two things have to be noted about the Fletcher opinion. First, it is exceedingly brief. The opinion does not give readers a lot to work with on either the law or the facts. Second, the court limits its rather broad sounding language to the unique facts before it. See id. ("Factually, this case is unique since both the evidence introduced by the State and the evidence introduced by the defendant, specifically including his own trial testimony, conclusively establish that he is legally guilty of the sexual battery."). More specifically, the defendant conceded to the authorities that he had had sex with the complainant despite her having repeatedly said "no." Id. Importantly, although the defendant was alleged by a third party to have espoused the view that women sometimes mean "yes" when they say "no," there were no countervailing facts or allegations before the jury to suggest that in this particular case there was any such ambiguity. Id. The court wrote:
At no time did the defendant testify that the victim said yes or otherwise indicate her agreement to engage in sexual intercourse with the defendant. Rather, it was the defendant's position at trial that he interpreted her clearly verbalized objections and protestations as, in the defendant's opinion, really meaning something other than "no."
Id. at 480-81.
In other words, the Fletcher court is not rejecting the caselaw that I have cited or the position that I have indicated. All the Fletcher court is refusing to do is overturn a guilty verdict on the basis of a consent-based defense when (a) there was no evidence, even including the defendant's own testimony, that such a belief regarding consent was reasonable or in good faith and (b) after the jury had already implicitly rejected any such rationale by convicting the defendant. The court rested its decision on these "undisputed facts." Id. at 481 (emphasis in original). Scott regards Fletcher as standing for the proposition that "some courts do in fact treat 'no' as such a presumption of nonconsent." A more accurate interpretation, in light of the complete absence of contrary evidence, is that "no" is sufficient to sustain a conviction in the absence of any further evidence. Again, there is nothing about Fletcher that contradicts my previous analysis unless one takes some isolated language entirely out of context.
In short, the cases cited by Scott do not stand for the propositions that he attributes to them. Any language supporting his thesis can only be found in dicta. Carapeli and Fletcher do, however, fit nicely within my analytical model when their actual holdings are considered. Perhaps, there are cases out there that support Scott's arguments, but these ones do not. American caselaw is vast and isolated bits of obiter dicta may be found to support nearly any legal proposition (including contradictory ones). I have now spent several hours on this project, and while this is a mere drop in the bucket research-wise, the majority position in state courts does appear to possess the contours that I have delineated thus far.
Finally, I would like to note one last portion of Scott's most recent post that I find positively chilling, particularly coming from the pen of a law student. Scott writes:
I, like the Clerk, strongly condemn rape as a serious offense demanding serious penalties. Our difference seems to be how we get there. He wishes "the state to meet its burden of proof under all of the relevant facts of each individual case rather than constructing a scheme that allows it to ignore any other circumstances whenever the word 'no' has been uttered." (emphasis omitted) I don't want the state to ignore these "other circumstances," I simply think that the burden should fall on the defendant in such situations. Once a woman says "no," let the perpetrator carry the load. After all, it is he who is on trial.
The emphasis is mine. Scott will be delighted to learn that at least one state does, in fact, place the burden on defendants in such instances. See State v. Camara, 781 P.2d 483, 486-88 (Wash. 1989). I am not sure to what extent this position is embraced in other jurisdictions, though Camara does not appear to be widely cited outside of Washington state.
However, the whole of our discussion has assumed that consent is the definitive circumstance that distinguishes an act of mere intercourse from rape. In other words, lack of consent is an element of the crime. As with all criminal prosecutions, the state carries the burden to prove the elements of an offense beyond a reasonable doubt. So when Scott writes that he thinks that defendants ought to have to prove consent in instances in which they insist that it was given, he is arguing that the accused should be legally required to demonstrate his innocence. In other words, Scott is advocating the abolition of the presumption of innocence in an entire class of sex offense cases.
The Camara court relies on some convoluted statutory construction and its decision may yet be constitutionally infirm. I have no doubt that it is so. Scott actually seems to think that its result is both fair, constitutional more broadly, and ought to constitute a rule of general application: "After all, it is [the accused] who is on trial." I am flabbergasted. I cannot conceive of a criminal justice system more monstrous than one in which the state may levy charges and insist that the accused disprove them.
So why do I bring this up? Well, being that we were just on the topic of comments . . . I have begin to notice that I occasionally receive the commentary equivalent of Fermat's Last Theorem. That is, a reader will write in and (a) suggest that I am wrong on the facts or the law, but (b) refrain from offering an argument, a citation, or a link. This has a tendency to make me churlish. I am far from omniscient and welcome rebuttals, rejoinders, and replies. I also appreciate that readers are busy folks and may not have time to pen a treatise devoted to remedying my ignorance. But it would me helpful if people provided some basic pointers along the way.
To do less is to assign me a near-impossible task. Either I must read minds or engage in (sometimes) voluminous research in an effort to justify your criticism. This is often the equivalent of being assigned an indeterminate amount of homework. It's not that I mind being told to do my homework, I'd just like a little clarification on the reading assignments, so to speak. This way I can actually address your points and either reiterate, retract, or revise mine as the case warrants.
(Link via Glenn Reynolds.)
Lithwick cannot even begin to dispute this fact, so instead she writes that:
The law is perfectly clear: When a woman says "no," even—take note, Kobe's lawyers—after 5 minutes of necking, she really means no.
Of course, this is not true either. In Texas, for example, the penal code conditions rape (or "sexual assault" in the terminology of the statute) on the non-consent of the victim. Regarding consent, the penal code states:
A sexual assault under Subsection (a)(1) is without the consent of the other person if:
(1) the actor compels the other person to submit or participate by the use of physical force or violence;
(2) the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the present ability to execute the threat;
(3) the other person has not consented and the actor knows the other person is unconscious or physically unable to resist;
(4) the actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable either of appraising the nature of the act or of resisting it;
(5) the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring;
(6) the actor has intentionally impaired the other person's power to appraise or control the other person's conduct by administering any substance without the other person's knowledge;
(7) the actor compels the other person to submit or participate by threatening to use force or violence against any person, and the other person believes that the actor has the ability to execute the threat;
(8) the actor is a public servant who coerces the other person to submit or participate;
(9) the actor is a mental health services provider or a health care services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person's emotional dependency on the actor;
(10) the actor is a clergyman who causes the other person to submit or participate by exploiting the other person's emotional dependency on the clergyman in the clergyman's professional character as spiritual adviser; or
(11) the actor is an employee of a facility where the other person is a resident, unless the employee and resident are formally or informally married to each other under Chapter 2, Family Code.
Tex. Pen. Code § 22.011(b).
As the initial provisions make clear, physical coercion (i.e., force or the threat thereof) is the defining characteristic of nonconsensual sex in the paradigm instance being debated by Easterbrook and Lithwick. Given the empirical study cited above and jurors' own experiences, in a case in which the purported victim uttered the word "no," the jury will have to decide as a factual matter if "no" really meant "no," if the sexual acts that took place after "no" were forced. In addition, in most states an honest and reasonable mistake as to consent may be a valid defense. See Sanford H. Kadish & Stephen J. Schulhofer, Criminal Law and Its Processes 327 (6th ed. 1995) ("Most of the recent American cases permit a mistake defense, but only when the defendant's error as to consent is honest and reasonable.").
In other words, "no" does not always mean "no" either factually or legally. Lithwick is wrong. Sex that follows a "no" is not necessarily rape.
Update I. Will Baude has written a rejoinder of sorts. He makes some interesting claims. Baude argues:
My claim, (and the reason I originally applauded Lithwick's piece) is that "no" should mean no.
Here's one framework for thinking about this:
Person A tells person B "don't do physical act X to me." Person B does physical act X to person A. That, to me, ought to be considered "the use of physical force" unless some intervening dialogue (like a retraction) have occurred. . . .
Physically resisting a rapist can be dangerous business. If the medical testimony is to be believed, Kobe Bryant's alleged victim suffered genital lacerations and so on, and her injuries are considered relatively minor. Demanding that rape victims put up a physical fight or face an explicit threat of force is putting them at further risk than they already are. . . .
In other words, Baude seems to be arguing that sex that occurs after a "no" ought to be rape absent intervening verbal reconsideration. Baude is arguing for a substantial change in the law.
Some jurisdictions come closer to Baude's conception of consent than Texas. Consider, for example, Washington state, which defines "consent" as follows:
"Consent" means that at the time of the act of sexual intercourse or sexual contact there are actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact.
Wash. Rev. Code § 9A.44.010(7).
Consider also Wisconsin's rape statute. It defines third-degree sexual assault as follows:
Third degree sexual assault. Whoever has sexual intercourse with a person without the consent of that person is guilty of a Class G felony.
Wisc. Stat. § 940.225(3).
"Consent" is then defined as:
words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to have sexual intercourse or sexual contact.
Wisc. Stat. § 940.225(4).
Both of these definitions are far from establishing a presumption or a rule of law based on the use of the word "no," however. (Note: a presumption would be rebuttable; a rule of law would be irrebuttable.) Indeed, by accounting for both "words" and "conduct" ("overt actions" in the phrasing of the Wisconsin statute), these statutes potentially nullify the legal effect of words when those words are at variance with one's actions or are ambiguous when taken in context (e.g., a murmured "no" accompanied by continued foreplay).
I have recently indicated my very firm belief that individuals have an absolute right to be free from unwanted contact. This is where I believe Baude goes astray. In ambiguous rape cases, as opposed from the paradigm instance of forced sex, whether the contact was, in fact, unwanted is the issue to be decided in court. We cannot possibly build a rule of law on the effect of words alone, because words alone do not provide the whole picture. As the women surveyed in the Texas study cited near the beginning of my original post indicates, "no" uttered with certain body language may have a radically different meaning from the dictionary definition of the term. Baude's bright-line language rule would have the advantage of clarity, but it's a clarity gained only by refusing to take cognizance of circumstances that might bear upon the meaning of the words.
Baude seems to fear that any other rule (other than a strict "no" means "no" one) requires women (or male victims) to put themselves at further risk of violence. As it so happens, "force (or a threat of "force") is a prerequisite to conviction in most jurisdictions" at present Kadish & Schulhofer, supra, at 352. But what constitutes force in any given situation is relative. See Com. v. Rhodes, 510 A.2d 1217, 1226 (Pa. 1986) ("[T]he 'force necessary to support convictions for rape . . . need only be such as to establish lack of consent and to induce the woman to submit without additional resistance. . . . The degree of force required to constitute rape . . . is relative and depends upon the facts and particular circumstance of the case.'") (quoting Com. v. Williams, 439 A.2d 765, 768 (Pa. Super. Ct. 1982)). Williams makes clear that "[i]t is not necessary that the victim be beaten, that the victim cry, that the victim become hysterical, or that she be threatened by a weapon for the crime of rape to occur." 439 A.2d at 768. Indeed, "[i]t is not necessary that force be actually applied by the perpetrator to the victim." Id.
So Baude should not be unduly concerned that the present regime imposes undue risks. While actual violence would, no doubt, serve a useful evidentiary function, its absence does not preclude a rape conviction. The hoary common law requirement of utmost resistance is a thing of the past; American courts generally only require such resistance as is reasonable under the circumstances. Kadish & Schulhofer, supra, at 339.
What the law does require is consent to be absent. This must be proven beyond a reasonable doubt. Unfortunately, we human beings do not always mean what we say or say what we mean. Hence, while spoken words undoubtedly have an evidentiary value they are hardly conclusive. It is neither unreasonable nor dangerous to require persons to effectively communicate lack of consent. See People v. Warren, 446 N.E.2d 591, 594 (Ill. App. Ct. 1983) ("We do not mean to suggest, however, that the complainant did in fact consent; however, she must communicate in some objective manner her lack of consent.")
Men who press onward in the face of a "no" proceed at considerable risk. Legally, it behooves them to do otherwise. But it also behooves women (and men) to be unequivocal if consent is wanting. A "no" means "no" legal rule such as Baude suggests insulates women from their own ambiguity given that "no" does not, in fact, always mean "no." Does such a rule of law protect women from assailants or from themselves?
Update II. Professor Volokh weighs in with a discussion of the meaning of "no." In particular, Volokh seems to be suggesting that the slogan "'no' means 'no'" is devoid of meaning absent some specific factual context. Consider this passage:
One way or the other, "no means no" seems to be getting ambiguous enough to be not that helpful. What's more, it doesn't really capture the heart of any particular factual debate. I haven't been closely following the Kobe Bryant trial, but I take it that the prosecution's argument isn't "she said no once, so though she willingly had sex with him afterwards, it's still rape." I take it that the defense's argument isn't "she said no, but Bryant immediately began having to sex with her against her will, because he thought she really meant yes." And I take it that even the other critics or defenders of Bryant, who aren't bound by the needs of litigation to make the most aggressive arguments possible, probably wouldn't suggest these scenarios.
If I properly understand Volokh's general point to be about context, he is certainly right. See, e.g., State in Interest of M.T.S., 609 A.2d 1266, 1277 (N.J. 1992) ("[P]ermission may be inferred either from acts or statements reasonably viewed in light of the surrounding circumstances.") However, given the honest mistake defense mentioned above, I do not think that Professor Volokh is right in suggesting that no one has the "he really thought she really meant yes" scenario in mind. Indeed, such defenses are litigated. See, e.g., id. at 1279 ("If there is evidence to suggest that the defendant reasonably believed that such permission had been given, the State must demonstrate either that defendant did not actually believe that affirmative permission had been freely-given or that such a belief was unreasonable under all of the circumstances."); see also People v. Williams, 841 P.2d 961, 965-66 (Cal. Ct. App. 1992) (articulating California's reasonable good faith mistake defense to rape prosecution).
This is all about protecting Paul Krugman. No one on the Left has any interest in defending the interpretive legitimacy of "Type M" arguments when Ann Coulter makes them. Krugman provides a weekly tongue-lashing of the present administration, which the folks over at Crooked Timber and Leiter both despise. As members of the Left, it is essential to them that Krugman's voice remain valid. Therefore, they have engaged in a hyper-intellectualized defense of Krugman's specious methodology of reasoning.
So what's wrong with the foregoing paragraph? According to Henry Farrell (the Crooked Timber writer in question) and Leiter, there is not necessarily anything invalid about such reasoning. Certainly, a perusal of their respective Internet postings will confirm my appraisal of their individual politics.
The problem, of course, is that the above paragraph does not even begin to address their arguments. Indeed, my "Type M" response avoids them outright; it dismisses their arguments under the pretense that their motivations are so transparent that the arguments themselves need not be respected. We can and do have political arguments like this all the time. Crossfire comes to mind. But how enlightening do you find Crossfire?
The real problem with "Type M" arguments is that they are typically little more than caricature and ad hominem. People have a natural tendency to think that (a) their political policy preferences are right in some moral sense and (b) those who come to diametrically opposed conclusions must therefore be immoral. The result is that they allow "Type M" arguments to step in and serve as a substitute for valid arguments as to why their adversaries are wrong.
And even when these "Type M" arguments are not a total replacement for "Type C" ones, they deprive people of any semblance of objectivity. It's hard to dispassionately assess the axioms advanced by one's opponents when you are convinced that their motives are impure. It is also largely a fruitless method of argumentation, because it generally only allows you to preach to the choir (i.e., those who already share your beliefs and suspicions about the opposition).
I would be less bothered by "Type M" arguments if they were generally more sophisticated, advanced with less certitude, and their proponents were willing to be a trifle more charitable when assessing the motives of opponents. There's really nothing unreasonable about Farrell's or Leiter's posts in the abstract. It's the application that is problematic. Krugman, for example, suspects "that key elements of the coalition that now runs the country believe that some long-established American political and social institutions should not, in principle, exist . . . . possibly—in which elections are only a formality . . . ." It's hard to take such "Type M" arguments seriously.
Update. Steve of Begging to Differ has also written on the problem with "Type M" arguments, with special emphasis on their lack of humility and tendency toward incivility. In the process, he also points out Godwin's Law, which I had not heard of before.
Of equal import and hithertofore undiscussed by either Steve or myself, is the fact that some seem to employ "Type M" arguments as a palliative measure when their own political allies act in an inexcusable fashion. This can take two forms: (a) attacking the motives of the opposition when they bring unwanted facts to the fore; or (b) defending improper conduct on the basis of pure motives. I think that these secondary usages of "Type M" argumentation fairly illustrate that it is, as often than not, a device for avoiding discussion of unwanted facts. Whatever the case, I recall that the Left was not always so fond of motivational inquiries.
Vodka, the famous Russian drink, is celebrating 500 years since it was first distilled by monks.
The clear liquor, these days drunk by people around the world, is thought to have been invented in 1503 by Kremlin monks, who used it as an antiseptic before they started downing it.
* * *
Studies show Russians drink more hard liquor than any other nation in the world, including vodka—which means "little water."
I learned Russian at a military language school in the early to mid-90s, before the government fully appreciated the significance of the fall of the Soviet Union and the end of the Cold War. Apparently, this skill will nonetheless be quite useful in the years ahead.
At this language school, all of our teachers were Russian expatriates. One instructor, a delightful grandmotherly figure, told me of the first American soiree that she was invited to after resettling in this country. She was in her fifties at the time of this get-together. Being that it was a party and all, she brought two bottles of vodka for the evening. Needless to say, her American counterparts were a bit taken aback.
I received an E-mail recently from someone who wrote "NOT FOR PUBLICATION" at the top of the E-mail. I will honor the person's request not to publish the E-mail, even though it suggests I'm becoming a "shrill bastard." In the future, I will not consider myself bound by such statements. I'm not saying that I'm going to publish E-mails that I receive; I have better things to do than to publish emails, and the few readers I have aren't interested in my hate mail anyway.
However, I'm not going to feel bound by a unilateral inscription on the top of an Email. So don't think that writing "NOT FOR PUBLICATION" gives you license to say things you won't be held accountable for. . . .
Q: What do bloggers need to know about copyright laws, including the use of published and unpublished material?
Volokh: A lot, much more than I can say here. A few short tips: (1) Don't publish personal e-mail that you're sent unless you're pretty certain that the sender wanted you to publish it—it's not nice, and it's also probably a copyright infringement. (2) Excerpt articles rather than posting the whole thing, at least unless you're responding to them line by line; copying a whole article is less likely to be a fair use than just copying part.
The emphasis is mine.
I have always abided by Volokh's recommended course as a matter of courtesy. But then again I never receive hatemail. Despite being opinionated and a bit too high-strung for my own good on occasion, e-mailers are always relatively polite. And now that I have a public comments section, I receive fewer e-mails. So I am not overly concerned about the copyright aspects of e-mail publication . . . .
Yet, there is something about this that bothers me. Now, I am not trying to make a definitive legal claim here. Despite an amateur interest in copyright law, it is not a topic that I am knowledgeable about. Nonetheless, it seems odd to me that the posting of electronic correspondence that has been unilaterally declared "private" might constitute a copyright violation. Is my intuition wrong? In addition, assuming that unauthorized Internet publication is a copyright violation, is it a good thing that e-mails enjoy copyright protection?
Might the publication of private correspondence also result in liability under common law causes of action? For example, what about invasion of privacy? (Under the Texas common law, one must demonstrate the following in order to state a claim for invasion of privacy: "(1) an intentional intrusion; (2) upon the seclusion, solitude, or private affairs of another; (3) which would be highly offensive to a reasonable person." Household Credit Servs. Inc. v. Driscol, 989 S.W.2d 72, 84 (Tex. App.—El Paso 1998, pet. denied).) Or what about intentional infliction of emotional distress? (Under Texas law, one must demonstrate the following in order to establish such a claim: "(1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the actions of the defendant caused the plaintiff emotional distress; and (4) the emotional distress suffered by the plaintiff was severe." Id. at 81.) Does it just depend on the circumstances and content of the publication?
Other torts also come to mind. Texas, for example, does not recognize the tort of false light invasion of privacy, see Cain v. Hearst Corp., 878 S.W.2d 577 (Tex. 1994), but presumably states that do recognize the tort might validate its use under the right circumstances involving publication of private correspondence. Defamation might also be applicable under certain circumstances. But what my common law question really aims at is non-defamatory publication. That is, could the publication of private e-mails in unabridged and unedited form lead to liability?
Finally, I also wonder how far reaching Volokh's point about copyright might be. For example, Volokh stresses not to publish private e-mails "unless you're pretty certain that the sender wanted you to publish it." But copyright does not have a scienter requirement. See, e.g., Loussier v. Universal Music Group, Inc., 214 F.R.D. 174, 178 (S.D.N.Y. 2003). That is, an infringement need not be shown to be intentional in order to be actionable. So if copyright is genuinely an issue, anything short of explicit permission to publish could lead to liability. Likewise, if copyright in an issue, then is the mass distribution of e-mails like this one an infringement?
Obviously, I have a lot of questions and no real answers. But the topic is an interesting one. With the rise of the Internet and e-mail usage, the topic is also a serious one. It would make for a useful student note. Suggested title: Electronic Infringement and Pixelated Torts: Civil Law Liability for Internet Publication of Private Correspondence.
I was particularly struck by this bit:
While some are born curmudgeons, others have curmudgeonry thrust upon them. According to take-no-prisoners New York magazine critic John Simon, "In me it evolved gradually as a response to seeing so many bad plays and movies. It's not something that I profess with pride or joy, it's just an attitude that becomes less and less resistible under the circumstances."
I, on the other hand, was born a curmudgeon. From the time that I was a little kid I can remember others commenting that I was "'x'" years of age going on eighty." As a very small child, I actually took to emulating Oscar the Grouch. I apparently left the womb in a state of exquisite disgruntlement that has not dissipated with the passage of time. Some babies are born with colic; I had existentialistic angst.
Notwithstanding the tenor of the AARP article, curmudgeonry continues to have its admirers. Just the other day someone praised my particular brand of distemper. I, however, share Mr. Simon's sentiments: "It's not something that I profess with pride or joy." On the contrary, I loathe this particular part of myself. I have no illusions. I know that I am a curmudgeon, but I don't care for it one bit. And my seeming inability to reform my character only exacerbates my frustration and renders me still crankier.
Curmudgeonry is not one of those attributes that you can turn off and on at will. It's more like lycanthropy. When the moon is full . . . . Everyone is afflicted to some degree, but for most there is only one full moon per month. Curmudgeons, on the other hand, are on a different lunar calendar altogether. Full moon fever is the order of the day.
Caustic retorts are wonderful for ending arguments, but they seldom resolve them. Sardonic observations often do reflect the reality of the situation. However, sanguinary argumentation tends to put people on their guard, which makes convincing a far more difficult task. This isn't to say that mockery and barbed wit does not have its place. It does, but, like irony, a little generally goes a long way. (And in interpersonal relations, even a little ill-considered curmudgeonry can poison the well.)
Curmudgeons frequently convince themselves that their condition is the result of being smarter than the average bear. Consider P.J. O'Rourke's take on popular culture:
"Popular culture has always been moronic," says O'Rourke. "It has to be, by mathematics. I mean, one-half of the population is by definition below median intelligence."
The problem with this rationale is that I know lots of bright people who are not curmudgeons. Indeed, all of the people who have played major roles in my informal legal education, my mentors if you will, are incredibly even-keeled. Their sangfroid is what drew me to them and it's the quality that I most aspire to possess. It is a vain aspiration, I fear, but at least I recognize the limitations of my temperament. This knowledge offers some consolation.
The underlying facts appear to have changed in the meantime. With 99% of California's precincts reporting, CNN lists 3,513,472 people as having voted against the recall. In contrast, 3,637,614 voted for Schwazenegger. That's a net of 124,142 in Arnold's favor. Arnold's nearest competitors garnered substantially less votes: 2,403,554 for Bustamante; 999,988 for McClintock; and 209,663 for Camejo.
When considered as a percentage of the votes distributed between these four candidates—the only serious ones in the race—Arnold's lead does amount to a slim majority. And let's face it, if you have to include Larry Flynt's voters (or the votes cast for other fringe candidates) in the totals to demonstrate otherwise, you have pretty much lost the argument, particularly when you account for the fact that, faced with a fait accompli, McClintock's contingent will likely throw their support behind Schwarzenegger. In short, the majoritarian vote-related arguments being made are quite strained, mathematically speaking.
These arguments are positively weird in the wake of the 2000 election. The mantra of the Left was (and in some quarters continues to be) that President Bush is illegitimate because Gore received more votes than Bush. In 2000, Bush won 47.87% of the popular vote compared to Gore's 48.38% of the vote. Being that math is the theme of the day, you'll note that these percentages do not add up to 100%. (Other candidates, like Nader, account for the missing piece of the pie.) In other words, even though Gore garnered more votes, even he did not receive a majority of the popular vote. Indeed, no president has been elected with a majority of the popular vote since 1988. In 1992, Clinton gathered 42.93%, Bush captured 37.38%, and Perot won 18.87%. In 1996, 49.24% of the popular vote went to Clinton, 40.71% went to Dole, and 8.40% voted for Perot.
Governmental legitimacy has never depended on the ability to attract a majority of the popular vote. The rules in place prior to the recall designated the winner as being whoever won the most votes, even if this figure received a mere plurality. Schwarzenegger has won the most votes, and has done so in relatively convincing fashion. He isn't any less legitimate than a president who wins in the electoral college but loses the popular vote.
Political legitimacy is, perhaps, another matter. But the recall was embraced by a confortable margin (55% to 45%). And when Schwarzenegger and McClintock's votes are viewed in tandem, they certainly constitute some indication that the majority of the state's voters want to move in a markedly different direction from the one charted by Gray Davis. In what direction and how far remains to be seen. This may not amount to a mandate for Schwarzenegger per se, but it is difficult to not view it as a mandate for some change. And isn't that the only mandate that Arnold requires?
Update I. A chart detailing the percentage of the popular vote obtained by each and every candidate—including the myriad fringe ones—with 100% of precincts reporting is available here.
Update II. Mickey Kaus further discredits the Left's majoritarian meme:
It's worth noting that, in the event, not only did successor Arnold Schwarzenegger get more votes (3,744,132) than Davis (3,562,487), he also got more votes than Davis got in November, 2002 (3,469,025) when Davis won reelection. . . . Almost a million more people (4,416, 280) voted to recall Davis than voted to reelect him last year. . . .
These figures apparently do not include the absentee ballots, which are thought to heavily favor the recall.
Bustamante. The talking heads could not even begin to compare to Cruz in the detachment-from-reality department. In what was billed as a concession speech, Bustamante more or less declared that the real issue of import was Proposition 54 and that the evening could therefore be considered a victory of sorts. Regarding 54, Cruz "M.E.Ch.A." Bustamante declared that the measure's failure to achieve passage is a sign that "wedge politics" is dead. Incidentally, FOXNews reported that Captain Racial Solidarity commanded a bare majority of the Hispanic vote (52%). No doubt, Bustamante approves of the collection of such statistics.
Davis. You won't have Gray Davis to kick around anymore. I expected him to say as much. But, in truth, Davis was quite gracious in defeat. He did devote some time to trumpeting his administration's supposed successes, however. If his political career is dead, he does not realize it yet. Perhaps, it isn't? At any rate, if there is litigation in the wake of the recall, it does not appear that Davis will be a participant.
Schwarzenegger. Arnold's victory speech was not particularly noteworthy. What is more interesting about Arnold's ascendency to the governorship was his ability to pull in votes from people who find him repellent. Slate's Mickey Kaus, who voted for Arnold, writes:
. . . But Schwarzenegger has two really troubling characterological defects.
a) He's a crude serotonin victim who enjoys bullying men and women alike. Everyone knew there were stories like the LAT presented last week. I've heard even more. He's not a groper the way Clinton was a groper—Schwarzenegger seems to actually have a cruel streak in which he enjoys humiliating others. With women, there's a sexual component—but there are plenty of stories of him humiliating men. (And at least one of the groping incidents seems designed to humiliate the woman's husband more than the woman.)
I love Kaus's (unconscious?) rationalization of his own willingness to vote for a cretin. What Arnold has done is not immoral or illegal, you see. His unfortunate behavior is merely the result of a "characterological defect." (I guess that they pay by the syllable over at Slate.) Culpability is so passe. Arnold is the victim. Just imagine all those uncontrollable urges pent up in that hulking body, with only a frail psyche plagued by "characterological defects" to rein them in.
(Kaus link via InstaPundit.)
No doubt this last bit is highly counterintuitive to some. The paradigm instance of battery is often regarded as a punch thrown and landed (or the like). But consider and contrast a case like Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex. 1967).
In Fisher, the factual scenario was as follows:
The plaintiff Fisher had been invited by Ampex Corporation and Defense Electronics to a one day's meeting regarding telemetry equipment at the Carrousel. The invitation included a luncheon. The guests were asked to reply by telephone whether they could attend the luncheon, and Fisher called in his acceptance. After the morning session, the group of 25 or 30 guests adjourned to the Brass Ring Club for lunch. The luncheon was buffet style, and Fisher stood in line with others and just ahead of a graduate student of Rice University who testified at the trial. As Fisher was about to be served, he was approached by [Manager Robert] Flynn, who snatched the plate from Fisher's hand and shouted that he, a Negro, could not be served in the club. Fisher testified that he was not actually touched, and did not testify that he suffered fear or apprehension of physical injury; but he did testify that he was highly embarrassed and hurt by Flynn's conduct in the presence of his associates.
Id. at 628-29 (emphasis added).
Yet, nothwithstanding the agreed lack of physical contact, the Supreme Court of Texas found that a civil law battery had occurred. The court explained that:
. . . . [I]t has long been settled that there can be a battery without an assault, and that actual physical contact is not necessary to constitute a battery, so long as there is contact with clothing or an object closely identified with the body. . . .
* * *
Under the facts of this case, we have no difficulty in holding that the intentional grabbing of plaintiff's plate constituted a battery. The intentional snatching of an object from one's hand is as clearly an offensive invasion of his person as would be an actual contact with the body. 'To constitute an assault and battery, it is not necessary to touch the plaintiff's body or even his clothing; knocking or snatching anything from plaintiff's hand or touching anything connected with his person, when, done is an offensive manner, is sufficient.'. . .
The rationale for holding an offensive contact with such an object to be a battery is explained in 1 Restatement of Torts 2d § 18 (Comment p. 31) as follows:'Since the essence of the plaintiff's grievance consists in the offense to the dignity involved in the unpermitted and intentional invasion of the inviolability of his person and not in any physical harm done to his body, it is not necessary that the plaintiff's actual body be disturbed. Unpermitted and intentional contacts with anything so connected with the body as to be customarily regarded as part of the other's person and therefore as partaking of its inviolability is actionable as an offensive contact with his person. . . .
Id. at 629 (emphasis added).
But what of damages? The jury had sided with the plaintiff and awarded "$400 actual damages for his humiliation and indignity and $500 exemplary damages for Flynn's malicious conduct." Id. On appeal, the Supreme Court of Texas agreed that such damages are permissible. The court wrote:
The Harned case recognized the well established rule that mental suffering is compensable in suits for willful torts 'which are recognized as torts and actionable independently and separately from mental suffering or other injury.' 254 S.W.2d at 85. Damages for mental suffering are recoverable without the necessity for showing actual physical injury in a case of willful battery because the basis of that action is the unpermitted and intentional invasion of the plaintiff's person and not the actual harm done to the plaintiff's body. Restatement of Torts 2d § 18. Personal indignity is the essence of an action for battery; and consequently the defendant is liable not only for contacts which do actual physical harm, but also for those which are offensive and insulting. Prosser, supra; Wilson v. Orr, 210 Ala. 93, 97 So. 123 (1923). We hold, therefore, that plaintiff was entitled to actual damages for mental suffering due to the willful battery, even in the absence of any physical injury.
Id. at 630 (emphasis added).
No doubt the racial animus involved affected the outcome of the case. The damages may well have been different in the absence of the racial issue. However, the actual liability for battery would exist even in the absence of the said animus. See Wal-Mart Stores, Inc. v. Odem, 929 S.W.2d 513, 522 (Tex. App.—San Antonio 1996, writ denied). And, if the battery is offensive in some other non-racial fashion, then Fisher's holding regarding damages would remain just as applicable. See id. at 528.
Now one might reasonably argue that suing every time such batteries occur is ill-advised. Perhaps, this is so. Life is short and litigation is desultory, after all. I, however, entertain doubts about any such advice. Generally speaking, law-abiding citizens ought to be physically inviolable. Respect for human dignity demands that the law compel others to honor our persons if and when they won't do so out of simple decency.
"The hearing was very interesting,” said Evans, "it seemed to me that the judge wasn’t very familiar with the specifics of the case. Every time I brought up the issue of the proper application of Section 861 and Subchapter N (which contains Section 861), the judge would change the subject by asking me what appeared to be argumentative questions. It was [as] if the judge was more of my opponent than was the Department of Justice. Plus, there were two law clerks observing the hearing. They were giggling like school children, not paying much attention while the statements were being given. It wouldn’t surprise me if the opinion was actually written by the law clerks, as is sometimes the case."
The district court sanctioned Evans $1,000 for bringing his action after having already been admonished of the frivolity of his position by the court of appeals. The appellate court had previously levied $4,000 in sanctions. No doubt, appellate law clerks were behind the original sanctions. They're even more dreadful than district court law clerks.
Update. Stuart Buck has received a disgruntled e-mail from Mr. Evans. Based on its very reasonable and articulate content, it's obvious that a cabal of clerks is behind the failure of his tax suit.
President Bush announces Marriage Protection Week, and the self-proclaimed guardians of federalism don't try to rain on the party. Here's a hint, folks: "federalism" in the conservative mold means "protecting traditional preserves of state power." Marriage law is primarily state law. Ergo, if you care about marriage and you care about federalism, you should probably care about bringing up the fact that marriage is not really a federal issue.
Unless, of course, you want to federalize the particular view of marriage that the Federal Marriage Amendment expresses, and that belief trumps your federalist respect for states. But if you don't care about federalism except when you like the results, then you don't really care about federalism all that much.
Without offering any opinion on the issue of gay marriage, which obviously underlies this whole matter, I don't think that Marston's arrow hits its mark. Indeed, Marston who is a thoughtful, detail-oriented thinker as a general rule is drawing from a nearly empty quiver in this case.
First, it's not clear to me that even sincere federalists subscribe to the principle of federalism as being not only the paramount constitutional value but a preemptive one as well. I think that for the non-ideologue, federalist principles are weighed in the balance with other considerations. As someone who takes federalism seriously, it has never been my position that federalist principles must prevail even though the heavens may fall.
Second, this issue of gay marriage is, perhaps, not easily characterized in terms of federalism. Conservatives generally fear that one state (or a small minority of states) will recognize gay marriage as an institution and that the remainder of the union will then be compelled to do likewise via the Full Faith and Fair Credit Clause of the Constitution. In short, conservatives (and conservative-led states) are wary of being forced to sanction unions that they would not condone via their own state legislatures or courts.
For the reasons elaborated by Professor Volokh, the language of the current Federal Marriage Amendment does trample federalist principles. However, the general notion that a federal amendment is necessary in order to preserve the prerogative of individual states to decide which marital arrangements will be legally recognized is not necessarily offensive to federalist principles in the same fashion. This is a distinction that Marston, perhaps, fails to appreciate.
It is clear that cultural conservatives are seeking to alter the existing constitutional balance, at least with respect to this one issue. It is, therefore, perfectly fair to assign them the burden of proof and persuasion. In addition, federalism does have many fair weather acquaintances. But I am not sure that one can attack conservative proponents of such measures (who may or may not be federalists incidentally) for betraying federalism on this issue. The state-federal balance is rather complex in this situation.
Update. Timothy Sandefur has a learned discussion of the Full Faith and Credit Clause that suggests that the constitutional provision was originally intended to be far narrower in scope than is commonly believed. Should conservatives fear imposition of gay marriage on the basis of this Clause? Read Sandefur's wonderful post and find out.
My most recent mention on Law.com stems from this post, which was noted in Today's Brief (Schwarzenegger: Lawbreaker or Jerk?). The extra attention and some comments to my original post have persuaded me to spend a little more time on this issue.
At the outset, I would like to note that, as a Texan, I do not have a dog in this fight. I don't care whether the recall generally or Schwarzenegger specifically succeeds or fails. My interest in the story about Schwarzenegger's alleged misdeeds concerning members of the opposite sex is purely academic. As such, I am not concerned with whether the accusations are accurate or not. For purposes of legal discussion, I am assuming that the allegations are true as stated (i.e., Arnold's conduct included non-consensual touchings of a sexual nature). Obviously, Schwarzenegger's accusers are not entitled to any such presumption in court. Their claims would have to proven by the state to be true beyond a reasonable doubt in any potential criminal prosecution; in a civil suit, they would have to prove their claims by a preponderance of the evidence. In my discussion, no consideration is given to the potential relevancy of devices that might otherwise preclude liability (e.g., statutes of limitations).What got me focused on this topic was Professor Susan Estrich's legal assessment of the situation in the October 3, 2003 edition of the L.A. Times. In her commentary, Estrich wrote:
As a professor of sex discrimination law for two decades and an expert on sexual harassment, I certainly don't condone the unwanted touching of women that was apparently involved here. But these acts do not appear to constitute any crime, such as rape or sodomy or even assault or battery. As for civil law, sexual harassment requires more than a single case of unwelcome touching; there must be either a threat or promise of sex in exchange for a job benefit or demotion, or the hostile environment must be severe and pervasive.
This is the sum total of Estrich's legal analysis in her commentary.
As a prefatory note, I'd like to state that I do my best to try to temper criticism of others on this site. To err is human, and I demonstrate my humanity with some frequency. Therefore, as one who relies on the good will and understanding of others, I try to write well-reasoned critiques rather than visceral rants. Having said that, Estrich is unquestionably wrong, and I mean "unquestionably" in the most literal sense that the term may be employed. Indeed, she is so wrong that only disingenuousness or profound ignorance of the law can account for her remarkable claims.
First, Estrich opines that Schwarzenegger's acts "do not appear to constitute any crime, such as . . . assault or battery." She follows up this conclusion by writing, "[a]s for civil law, sexual harassment requires . . . ." This construction artfully elides over the myriad other civil law causes of action that might exist apart from sexual harassment claims. In particular, Estrich omits civil law torts such as assault and battery, an omission that cannot possibly be accidental given her demonstrated awareness of these torts' criminal corollaries.
As any law student who has sat through a first-year torts class can tell you, the conduct alleged by Arnold's accusers would undoubtedly survive a motion to dismiss for failure to state a cause of action if framed in terms of tortious assault and/or battery. Let's take, as examples, the law of California and Texas. (I refer to the former state's law as it is the state in which both Arnold as Estrich apparently reside; I reference the latter state's law due to my familiarity with it.)
It is clear that, if the allegations panned out, Schwarzenegger would be guilty of the tort of battery under California law. California defines battery as "an intentional and offensive touching of a person who has not consented to the touching." Conte v. Girard Orthopedic Surgeons Med. Group, Inc., 132 Cal. Rptr. 2d 855, 859 (Cal. Ct. App. 2003). Moreover, "[a]lthough typically a battery is a violation of a person's wishes to avoid bodily contact that is hostile, aggressive or harmful, the tort is committed if there is unwanted intentional touching of any kind." Id. (bold font emphasis added).
The civil law of Texas is equally unambiguous. "A person commits an assault if he 'intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.'" Green v. Indus. Specialty Contractors, Inc., 1 S.W.3d 126, 134 (Tex. App.—Houston [1st Dist.] 1999, no pet. h.). (quoting Tex. Pen. Code § 22.01(a)(3)). The elements of the tort of battery are apparently identical under Texas law. See Bailey v. C.S., 12 S.W.3d 159, 162 (Tex. App.—Dallas 2000, no pet. h.) ("A person commits a battery if he intentionally or knowingly causes physical contact with another when he knows or should reasonably believe the other person will regard the contact as offensive or provocative.").
Therefore, whatever one might need to prove in order to sustain a claim of sexual harassment, the civil law causes of action of assault and/or battery would provide a viable legal means of redress. It may be that a cause of action for intentional infliction of emotional distress exists on these facts as well; however, such claims are difficult to advance. At any rate, the notion that Arnold's accusers could not muster any valid legal cause of action against the gubernatorial candidate, which is implicit in Estrich's commentary, is without merit.
Second, and more importantly, Estrich's claim that Schwarzenegger's supposed misconduct does not constitute a crime is also mistaken. No prosecutor in Texas or California would have difficulty obtaining a conviction for assault and/or battery on the facts under consideration. In Texas, "[t]he elements for a cause of action for assault and battery are the same in civil and criminal suits." Green, Inc., 1 S.W.3d at 134. The same is generally true in California as well. Consider the following language from People v. Myers:
. . . "A battery is any willful and unlawful use of force or violence upon the person of another." ([Calif. Pen. Code] § 242).
"'It has long been established, both in tort and criminal law, that "the least touching" may constitute battery. In other words, force against the person is enough, it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark.' [Citation.] 'The "violent injury" here mentioned is not synonymous with "bodily harm," but includes any wrongful act committed by means of physical force against the person of another, even although only the feelings of such person are injured by the act.' [Citation]"
It follows that an offensive touching, although it inflicts no bodily harm, may nonetheless constitute a battery, which the victim is privileged to resist with such force as is reasonable under the circumstances. The same may be said of an assault insofar as it is an attempt to commit such a battery. . . .
71 Cal. Rptr. 2d 518, 522 (Cal. Ct. App. 1998) (bold font emphasis added).
Given the foregoing analysis, Estrich's claims are not just mistaken, they are downright peculiar. Anyone with a Westlaw subscription could readily prove her analysis to be wrong with little time or effort expended. I increasingly despair of the quality of the legal commentary provided to non-lawyers. Woe to any foolish layman who relies on the legal analysis proffered by Estrich in her column. Credentials are no substitute for research.
Update. Incidentally, those who are interested in exploring the veracity the factual allegations at issue may want to read this story, which notes that fifteen women have now come forward with accusations that include non-consensual fondling and spanking as well as physical restraint against one's will. Consider, for example, this account:
Smith said Schwarzenegger grabbed her while she was an assistant to a producer on the 1987 movie "Predator.''
Smith said Schwarzenegger followed her into a bathroom.
"He grabbed me from behind with his right hand. He clamped it over my boob,'' she said. "He wouldn't let go. I fought him. The size of his biceps coming across my chest, they were enormous. I couldn't get away from him at all. It wasn't until I said something about Maria,'' she said, "that he dropped me, dropped me fast.''
Smith told another person on the set about this incident; this person confirms that Smith contemporaneously related the incident to her. Other incidents are similarly corroborated. Also note that we are not dealing with generic or anonymous accusations here.
Smith did not file charges or bring suit. She went on with her life. But if the facts are as she represents, there is little question that criminal charges or a civil suit would have been appropriate.
(Link via Burnt Orange Report.)
The problem with this observation is that Texas itself, to the extent that it ever had a unified identity, is increasingly diverse. What exactly do Dallas, Houston, and San Antonio have in common? East and West Texas could not be more different. South Texas (e.g., the Rio Grande Valley) frequently has more in common with Mexico than the panhandle in terms of culture.
When I first moved to Texas about a decade ago, I took up residence in Dallas. What struck me about the city from the very start was how it did not in any way resemble the Texas that I had imagined. It is certainly nothing like J.R. Ewing's Dallas.
Texas does retain far more in the way of an individual identity than many of the other fifty states, but everything is relative. Being more vibrant and distinctive than Oklahoma, for example, is not exactly saying much. I believe it was Texas Monthly that ran a story not too long ago about the amelioration of Texas's distinctiveness in the face of America's contemporary consumer culture.
I lived in Austin for three years. As a city, Austin is different than any other locale in Texas in some respects. But it shares many standard features of urban living with every other Texas city (e.g., Best Buy, Starbucks, Wal-Mart). North Austin increasingly bears considerable resemblance to some Dallas neighborhoods.
In truth, I think that the Texas of popular conception is more and more myth and caricature. If it exists anywhere it is only in the history books, in the minds of our neighbors to the North, and in the imagination of those oh-so-not-Texan Austinites.
The lawsuit apparently asserts constitutional claims, but the article is not terribly specific. So the precise legal basis of the suit is unclear. The apparent concern is that "the Texas Supreme Court's secret votes prevent the public from deciphering links between political contributions made to the justices and their official actions." While this is not an implausible public policy argument, it seems to assume corruption on the part of the Justices. In the absence of evidence of such improper influence, the proffered concern also seems more political than constitutional.
One wonders if the Supreme Court of the United State's cert. votes are a matter of public record. That is, do we know how each individual Justice votes in cases in which cert. is denied? The U.S. Supreme Court's rules merely state:
Whenever the Court denies a petition for a writ of certiorari, the Clerk will prepare, sign, and enter an order to that effect and will notify forthwith counsel of record and the court whose judgment was sought to be reviewed. The order of denial will not be suspended pending disposition of a petition for rehearing except by order of the Court or a Justice.
Of course, even if the vote tallies of the United States Supreme Court are not public, the issue is not exactly the same, as U.S. Supreme Court Justices do not periodically stand for election or receive campaign contributions.
The anonymous incidents occurred on movie sets and consist of touching a woman's breast in the elevator, whispering vulgarities and pulling a woman onto his lap. Though emphasizing that not everything in the stories was accurate, the candidate responded Thursday with an apology: "Yes, it is true that I was on rowdy movie sets and I have done things that were not right which I thought then was playful, but now I recognize that I offended people." And he pledged to treat women with respect if elected.
As a professor of sex discrimination law for two decades and an expert on sexual harassment, I certainly don't condone the unwanted touching of women that was apparently involved here. But these acts do not appear to constitute any crime, such as rape or sodomy or even assault or battery. As for civil law, sexual harassment requires more than a single case of unwelcome touching; there must be either a threat or promise of sex in exchange for a job benefit or demotion, or the hostile environment must be severe and pervasive.
The emphasis is mine.
While Estrich may be an expert on sexual harassment, I think she needs a remedial course in garden-variety torts. In Texas, "[t]he elements for a cause of action for assault and battery are the same in civil and criminal suits." Green v. Indus. Specialty Contractors, Inc., 1 S.W.3d 126, 134 (Tex. App.—Houston [1st Dist.] 1999, no pet. h.). Namely, "[a] person commits an assault if he 'intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.'" Id. (quoting Tex. Pen. Code § 22.01(a)(3)). The elements of the tort of battery are apparently identical under Texas law. See Bailey v. C.S., 12 S.W.3d 159, 162 (Tex. App.—Dallas 2000, no pet. h.) ("A person commits a battery if he intentionally or knowingly causes physical contact with another when he knows or should reasonably believe the other person will regard the contact as offensive or provocative."). I have no reason to believe that these definitions are out of the legal mainstream in any material fashion. So how could unsolicited sexual groping of the kind involved in the Schwarzenegger stories not amount to assault and/or battery?
Update. In the comments, a reader suggests that Schwarzenegger could not be convicted of criminal assault or battery under California law given the sort of misbehavior alleged. (But what of tort?) Is this reader mistaken or is the California Court of Appeals? (Note: That's a rhetorical question, folks.) See the comments.
. . . All too typical is the story, repeated by HRW, of a raped Texas prisoner with obvious injuries who reported the rapes (eight alleged rapes by the same rapist) to prison authorities. The authorities interviewed the rapist and the victim together, concluded it was nothing but a "lovers' quarrel," and sent them both back to their cells, where the victim was again repeatedly raped and beaten even more brutally. . . .
Sadly, this anecdote just goes to show that Texas is only opposed to homosexual sodomy when it is consensual. See Lawrence v. Texas, 123 S. Ct. 2472 (2003).
What is the nature and origin of the First Amendment rights of law schools anyhow? Who does the speaking—is it the faculty, or the administration, or the student body? I wonder whether any of those law school plaintiffs are state schools. What happened to the interest in diversity that justifies affirmative action? Shouldn't they want all kinds of employers represented and to attract students who are interested in all kinds of employers?
The suit says Penn Law School established procedures in 1998 designed to comply with the law while at the same time maintaining its anti-discrimination policies. Military recruiters were allowed to contact and interview law students, the suit says, but without direct assistance from the law school.
Under the policy, only those employers who promised to honor the law school's anti-discrimination policy were permitted to recruit directly through the law school's office of career planning and placement.
By contrast, military recruiters were referred to the university's office of career services, which would then notify law students of the dates that military recruiters would be on campus.
The suit says the policy worked for five years, and that military recruiters had "full access to all students."
"The only difference between the procedures for employers who are in compliance with the law school's anti-discrimination policy and those applicable to [the military] . . . is the identity of the individuals in the university who act as intermediaries between employer/recruiters and the students," the suit says.
But in January 2003, the suit says, Col. Daniel B. Fincher of the Air Force notified the university by letter that the law school was not in compliance with the law.
* * *
In a letter to Fincher, the university said it believed that the law school had already afforded military recruiters access to students that was "equal in quality and scope to that afforded other employers."
The letter went on to say: "We now understand . . . that the military is taking the position that 'equal' access means 'identical' access. We also understand that the military is unwilling to consider any different view."
The letter said the university strongly disagreed with the military's reading of the Solomon Amendment, but that it had decided to abandon enforcement of its anti-discrimination policy because "we cannot put the approximately $500 million of federal funds received annually by the university at risk—and to litigate this issue would have just that effect."
I think I understand the position of the schools. And the proproprietor of Tainted Law has posted a nice defense of this position in the comments to my original post on this subject. Nonetheless, it is immensely amusing to see the University of Pennsylvania Law School reduced to arguing "separate but equal" in defense of its segregationist policies regarding military recruiters.
Addendum. Relatedly, a friend of mine has e-mailed me this announcement that was sent to students at the SMU School of Law:
Navy JAG Corps Information Session.
Learn about opportunities for law students/graduates that exist within the Navy!
Date: October 7, 2003
Place: Florence 107
AMERLIORATION POLICY: SOUTHERN METHODIST UNIVERSITY DEDMAN SCHOOL OF LAW IS COMPELLED BY FEDERAL STATUTE TO PERMIT THE UNITED STATES NAVY JUDGE ADVOCATE GENERAL’S OFFICE TO RECRUIT OUR STUDENTS ON CAMPUS OR RISK THE LOSS OF FEDERAL STUDENT FINANCIAL AID FUNDING.
FEDERAL STATUTE PROHIBITS MEMBERSHIP IN THE ARMED FORCES OF A PERSON WHO “HAS ENGAGED IN, ATTEMPTED TO ENGAGE IN, OR SOLICITED ANOTHER TO ENGAGE IN A HOMOSEXUAL ACT,” OF A PERSON WHO “HAS STATED THAT HE OR SHE IS A HOMOSEXUAL OR BISEXUAL, OR WORDS TO THAT EFFECT,” OR “HAS MARRIED OR ATTEMPTED TO MARRY A PERSON KNOWN TO BE OF THE SAME BIOLOGICAL SEX.”
BECAUSE THE FACULTY OF THE SMU DEDMAN SCHOOL OF LAW SUBSCRIBES TO THE POLICIES OF THE ASSOCIATION OF AMERICAN LAW SCHOOLS AND THE AMERICAN BAR ASSOCIATION, THAT TOGETHER PROHIBIT EMPLOYMENT DISCRIMINATION BASED ON RACE, COLOR, RELIGION, NATIONAL ORIGIN, SEX, AGE, DISABILITY OR SEXUAL ORIENTATION, WE OFFER ACCESS TO THIS EMPLOYER UNDER PROTEST.
The very subtle ALLCAPS appeared in the original. One wonders: if the schools involved in the lawsuit merely wish not to be associated with the military's "don't ask, don't tell, don't harass" policy, why is a notice such as the one employed by SMU insufficient?
In an opinion decrying the culture of blame and compensation creeping across the Atlantic, the [British] judges said it's time to stop belly-aching when your coffee is too hot. Time to stop crabbing when you trip on a cracked sidewalk. It's time, they said, to stop suing at the drop of a hat.
It's also time for tort "reformers" to stop recycling bogus claims about lawsuits. In particular, its time for anyone with a shred of honesty and ethical propriety to stop misrepresenting the McDonald's coffee case. The facts of that case, as reported by the Wall Street Journal make it perfectly clear why the jury returned a very large verdict over spilt coffee. To wit:
. . . At the beginning of the trial, jury foreman Jerry Goens says he "wasn't convinced as to why I needed to be there to settle a coffee spill."
What the jury didn't realize initially was the severity of her burns. Told during the trial of Mrs. Liebeck's seven days in the hospital and her skin grafts, and shown gruesome photographs, jurors began taking the matter more seriously. "It made me come home and tell my wife and daughters don't drink coffee in the car, at least not hot," says juror Jack Elliott.
Even more eye-opening was the revelation that McDonald's had seen such injuries many times before. Company documents showed that in the past decade McDonald's had received at least 700 reports of coffee burns ranging from mild to third degree, and had settled claims arising from scalding injuries for more than $500,000.
Some observers wonder why McDonald's, after years of settling coffee-burn cases, chose to take this one to trial. After all, the plaintiff was a sympathetic figure—an articulate, 81-year-old former department store clerk who said under oath that she had never filed suit before. In fact, she said, she never would have filed this one if McDonald's hadn't dismissed her requests for compensation for pain and medical bills with an offer of $800.
Then there was the matter of Mrs. Liebeck's attorney. While recuperating from her injuries in the Santa Fe home of her daughter, Mrs. Liebeck happened to meet a pair of Texas transplants familiar with a Houston attorney who had handled a 1986 hot-coffee lawsuit against McDonald's. His name was Reed Morgan, and ever since he had deeply believed that McDonald's coffee is too hot.
For that case, involving a Houston woman with third-degree burns, Mr. Morgan had the temperature of coffee taken at 18 restaurants such as Dairy Queen, Wendy's and Dunkin' Donuts, and at 20 McDonald's restaurants. McDonald's, his investigator found, accounted for nine of the 12 hottest readings. Also for that case, Mr. Morgan deposed Christopher Appleton, a McDonald's quality assurance manager, who said "he was aware of this risk . . . and had no plans to turn down the heat," according to Mr. Morgan. McDonald's settled that case for $27,500.
* * *
The testimony of Mr. Appleton, the McDonald's executive, didn't help the company, jurors said later. He testified that McDonald's knew its coffee sometimes caused serious burns, but hadn't consulted burn experts about it. He also testified that McDonald's had decided not to warn customers about the possibility of severe burns, even though most people wouldn't think it possible. Finally, he testified that McDonald's didn't intend to change any of its coffee policies or procedures, saying, "There are more serious dangers in restaurants."
If you read the whole article, you'll also learn that McDonald's resisted proposed settlements of the case. You'll also find out that the compensatory damages awarded by the jury were not unreasonable by any strech of the imagination and that the jury reduced those because it found the Plaintiff to be 20% at fault. It was the punitive damages for deliberate indifference that added up. And what were the punitive damages, by the way? A mere two days worth of company-wide coffee sales ($2.7 million). And even this amount was substantially reduced via remittitur by the trial judge, and was reduced yet again in a settlement meant to preempt appeal thereafter.
The BBC reported these facts, so these British judges ought to know better.
David Cole is a liberal lawyer. He is a very liberal lawyer.
How liberal is David Cole?
Well, he has defended flag burners and Palestinian Marxist-Leninists and a performance artist famous for smearing her naked body with chocolate syrup to make some kind of statement about something or other. That's pretty liberal.
Later paragraphs make clear that by "defended," the article's author means that Cole represented these folks in a legal capacity. That is, he was their lawyer in court proceedings.
Now Cole may well be a liberal. He may even be very liberal. And his decision to represent the aformentioned parties might even reflect Cole's own values in some sense.
But one cannot simply assume that this is the case in the fashion that the Post's writer does. A lawyer is an advocate. He or she zealously pursues the interests of his or her clients. Attorneys may or may not share the values or goals of their clients. Criminal defense attorneys, for example, do not have a particular affinity for rapists, murderers, and other malefactors.
Given Cole's faculty biography, I rather suspect that his solicitude is for the First Amendment rather than the particular causes of his clients. At a later point in the article, the author writes of Cole's proposal to have his new book critiqued by supposed ideological opposite Viet Dinh thusly:
In other words, Cole's book party will feature an expert denouncing Cole's book as balderdash. How liberal can you get?
Now the use of the word liberal at the beginning of the article is clearly intended in a political sense. So one of two things is true of this later usage. Either (1) the author thinks that political liberalism of the sort previously detailed is particularly inclined toward criticism and debate, or (2) the author is using liberal in an entirely different, apolitical sense. If the latter, then the author is indiscriminately using the term in a fashion that conflates differing usages of the word. If the former, then the use of the term says more about the views of the story's author than Cole's.
While solicitude for free speech rights may be characterized as liberal in the most literal sense of the word, contemporary political liberalism has not displayed any special affection for free and open debate or diversity of viewpoints. This is not to say that the political Right does not have equally censorious members. It does. The point is that the First Amendment has friends and enemies on both sides of the aisle. Contemporary political liberalism cannot make a special claim regarding respect for open debate and inquiry any more that conservatism can.
The Volokh Conspiracy alone has devoted substantial space to the issue. See, e.g., Randy Barnett, David Bernstein, Jacob Levy, Juan Non-Volokh, Eugene Volokh. More than one of these posts contains useful links to related posts by non-conspirators.
For my part, I cannot imagine what might make conservatives feel beleaguered in the halls of higher education. It must just be paranoia. After all, it's not as if modern universities silence conservatives. (Thanks to Freespace for the H-Net link.)
The interesting aspect of this story is not the story at all, but rather the source: Bashman is a shareholder at Buchanan Ingersoll. Bashman's affiliation is made abundantly clear over at How Appealing. (A hyperlink from How Appealing's author attribution line in the site's sidebar sends readers to Bashman's firm-related biographical sketch.) And Bashman, as is typical of the great majority of his posts, offers no editorial comment on the Buchanan Ingersoll story.
Given the foregoing facts, I obviously I do not think there is anything even remotely questionable about Bashman's posting of a link to the referenced story. Nonetheless, I was surprised to see him do so.
Doubtless, no one over at Buchanan Ingersoll is displeased to see this story get wider dissemination. (VanKirk devotes a considerable portion of the Q&A in the article to attempting to dispell some very unfavorable rumors.) But one cannot help but wonder if the firm would be as agreeable if one of its shareholders or associates linked to (and thereby more widely disseminated) less favorable media coverage. Indeed, I think that the mere possibility of such unfavorable blogging is why many employers are inclined to squelch employees who blog—at least with regards to internal matters.
Why the Senate even bothers consulting the ABA is beyond me. Neither party cares one whit what the ABA thinks about nominees. President Bush and Senate Republicans have evelated disregard for the ABA's ratings to the level of official policy. And the Democrats seem not the least bit perturbed that Priscilla Owen and Miguel Estrada—nominees that they chose to filibuster—were unanimously rated well-qualified by the ABA. Nor have positive ABA ratings deterred Democrats from opposing nominees Bill Pryor, who received a majority vote of qualified, or Charles Pickering, Sr., who received a majority vote of well-qualified. So why even bother discussing the issue?