Dorf's basic thesis is as follows:
The question nonetheless remains—and it is a question perhaps better answered by a psychoanalyst than by a constitutional law professor—why on Earth Justice Scalia writes what he regards as parade-of-horribles dissents that risk becoming self-fulfilling prophecies.
Having indirectly disowned any expertise in the allegedly relevant discipline, Dorf nonetheless presses onward. He has in mind Scalia's dissent in Lawrence v. Texas, for example. Despite the nature of the question posed, Dorf does not offer a very fulsome answer. He offers and rejects two alternative explanations for Scalia's scorched-earth dissents and settles on a third rationale:
Justice Scalia views his colleagues' approach to some issues—such as abortion, affirmative action, and gay rights—as not merely different from his own, but as fundamentally illegitimate.
Dorf's suggestion is both right and wrong. Scalia's textualism is on display in dissents in any number of lower profile cases. Consider, for example, Scalia's dissent in BMW of N. Am., Inc. v. Gore, in which he wrote:
I do not regard the Fourteenth Amendment's Due Process Clause as a secret repository of substantive guarantees against "unfairness"—neither the unfairness of an excessive civil compensatory award, nor the unfairness of an "unreasonable" punitive award. What the Fourteenth Amendment's procedural guarantee assures is an opportunity to contest the reasonableness of a damages judgment in state court; but there is no federal guarantee a damages award actually be reasonable.This view, which adheres to the text of the Due Process Clause, has not prevailed in our punitive damages cases. When, however, a constitutional doctrine adopted by the Court is not only mistaken but also insusceptible of principled application, I do not feel bound to give it stare decisis effect—indeed, I do not feel justified in doing so. . . .
Id. at 598-99 (Scalia, J., dissenting) (internal citations omitted).
It is clear in Gore that Scalia regards the majority's approach as illegitimate. So Dorf is correct to the extent that he asserts that Scalia's textualism leads him to regard other alternatives as illegitimate. As with the dissents highlighted by Dorf, Scalia's dissent in Gore is peppered with barbs (e.g., "One might understand the Court's eagerness to enter this field, rather than leave it with the state legislatures, if it had something useful to say."), and features the very sort of dire predictions that Dorf finds inscrutable. In conclusion, Scalia writes:
. . . The elevation of "fairness" in punishment to a principle of "substantive due process" means that every punitive award unreasonably imposed is unconstitutional; such an award is by definition excessive, since it attaches a penalty to conduct undeserving of punishment. Indeed, if the Court is correct, it must be that every claim that a state jury's award of compensatory damages is "unreasonable" (because not supported by the evidence) amounts to an assertion of constitutional injury. And the same would be true for determinations of liability. By today's logic, every dispute as to evidentiary sufficiency in a state civil suit poses a question of constitutional moment, subject to review in this Court. That is a stupefying proposition.
Id. at 607 (Scalia, J., dissenting).
The immediate and obvious point that one may draw from Gore is that Dorf's analysis is myopic. Scalia's textualism and his concomitant disdain for the interpretive methods employed by others is hardly limited to the contexts of abortion, affirmative action, and homosexual rights—the areas that Dorf examines and sets out to explain. Because Dorf dwelled exclusively on the aforementioned areas, he wrongly assumed that there was something unique about Scalia's conduct therein.
Second, Dorf makes an even sharper wrong turn in his assertion that there is anything unique about Scalia's dissents in general. Although Scalia certainly is caustic in dissent to a degree that the other justices are not, a demonstration of the perceived untoward consequences of a majority decision is a hallmark of dissents and may readily be found in dissents penned by others, so much so that I need not even cite examples for those familiar with the Supreme Court to know that such is inarguably true. Indeed, I suspect that there is not a single sitting justice who has not authored such a dissent.
Third, Dorf overlooks the single most obvious and plausible reason for identifying in dissent the logical consequences of a majority decision that one dreads but nonetheless recognizes: intellectual honesty. That Scalia honestly thinks that Lawrence entails far more than it purports to address would appear to be the most reasonable explanation for his assessment. It is not necessarily self-destructive or counterproductive, it's just straightforward.
In this regard, Dorf's theory of causation gets it precisely backward. The Supreme Court of Massachusetts did not cite Lawrence in Goodridge because of anything that Scalia said in dissent, it cited Lawrence because of what the majority decision said, because Scalia's appraisal was accurate (i.e., Lawrence entails far more than it immediately holds). Anyone and everyone would have recognized this had Scalia never written a single word in response.
Given the avalanche of federal litigation, appellate judges are constantly engaged in triage. They must separating the relatively routine cases, to which they will devote relatively little attention, from the more difficult and complex cases that require a substantial investment of judicial resources.* * * . . . [T]he current rule, whereby courts do not allow citation of unpublished decisions, simply reflects the underlying truth that all cases do not receive the same level of judicial scrutiny. That reality is unlikely to change unless one of the problems I isolated above—the understaffing of the federal courts—changes first, and dramatically.
Lazarus writes of the Ninth Circuit. In many ways, that circuit and its problems are unique. The Ninth Circuit's gargantuan size creates problems related to publication of judicial opinions that might not exist or exist to the same degree elsewhere. However, I suspect that the general thrust of Lazarus's criticism remains valid with reference to many, if not all, of the other circuits as well.
In an interview, a judge for the Fifth Circuit once described a portion of the appellate caseload as "the Augean docket." Apparently, cases that fall within this category will be disposed of by the dozens in a single afternoon. Cases that are less execrable yet undeserving of much attention are apparently principally handled by staff attorneys with executive oversight wielded by the judge in question. Only a handful of cases are labored over by this judge's law clerks and undergo the laborious internal editing process by judge and clerk alike that produces an opinion of publishable quality. Granted, this is solely one vignette of the appellate process based on the practices of a single judge, but his recitation gave no indication that his modus operandi was uncharacteristic of the circuit as a whole.
This ought to give one pause. After all, as any lawyer can tell you, often the "published" opinions are maddeningly unclear or ambiguously drafted. So the reader can imagine the state of the "unpublished" ones. "Unpubllished" opinions, which frequently omit a fulsome recitation of the relevant factual and procedural history, are often little more than a barebones statement of the law. Bereft of this crucial context, they have little meaning to anyone other than the parties. Or rather, no one but the parties involved (and the issuing court) is in a position to decipher their true meaning. Nonetheless, lawyers being lawyers frequently grasp any convenient language to advance an argument. Hastily drafted and incomplete opinions will provide ample additional opportunities for such overreaching and will only add still more to the glut of appeals.
The text of the proposed rule and further discussion of its potential impact in conjuction with other developments may be found here and here.
(Link via How Appealing.)
LOS ANGELES, California (Reuters)—Los Angeles officials have asked that manufacturers, suppliers and contractors stop using the terms "master" and "slave" on computer equipment, saying such terms are unacceptable and offensive.The request—which has some suppliers furious and others busy re-labeling components—came after an unidentified worker spotted a videotape machine carrying devices labeled "master" and "slave" and filed a discrimination complaint with the county's Office of Affirmative Action Compliance.
In the computer industry, "master" and "slave" are used to refer to primary and secondary hard disk drives. The terms are also used in other industries.
Of course, computer cables (among many other things) are also often designated male or female, with the male component inserting into the female one. The same can be said of a certain type of screw that is frequently used in assembling materials; so-called "sex screws" feature a long "male" part that screws into a "female" half. Gloria Allred, call your office!
Addendum: See also John Rosenberg's A Polygamy Hypothetical.
Regarding the accuracy of this proposition, I think Buck is right to be doubtful. For example, Zoroastrianism is commonly (though, perhaps, inaccurately) described as monotheistic, but Ahura Mazda and the Judeo-Christian God are not by any means the same entity. The two religious traditions do not purport to worship the same being. The entities involved are substantially descriptively different.
It is possible that Buck might disagree with such reasoning. But the general tenor of his discussion indicates otherwise. He frames any potential debate in this fashion:
Isn't there some point at which A and B disagree over so many details that they might as well be talking about two different [gods]? And where is that point?In more technical terms, I guess what I'm asking is whether "God" is a rigid designator (see Saul Kripke's Naming and Necessity), such that in all possible worlds the name "God" refers to the same being even if the contingent facts about him are different? Or is it inherent in the concept of God that there are no contingent facts about him, and therefore no other possible worlds?
My hunch is that Buck thinks that such contingent facts do exist and so might accept my differentiation between Ahura Mazda and God. The context of his post suggests that he might be sympathetic to a similar argument regarding Allah. I am not sure of this though, and I do not wish to put words in his mouth.
However, to the extent that someone might make such a claim—and some folks do—it does not seem sustainable on the basis of the relevant contingent facts. That is, Judaism, Christianity, and Islam are sufficiently similar that they cannot be adequately differentiated in such a fashion as to conclude that each religon worships a different divine being. From a Christian perspective, what the three principally differ on is the role of Jesus. Muslims esteem Jesus as a prophet but do not regard him as being the son of God or God Himself. Professor Yvonne Haddad has pithily summarized the relationship between Islam and it's Judeo-Christian forebearers:
"Islam is a religion in the line of Judaism and Christianity. It believes in the same God," says Haddad.Islam, which literally means, "surrender to God," recognizes Jesus as a prophet, but credits the prophet Muhammad, born in about A.D. 570, with founding the religion.
According to Islam, Muhammad had a life-changing religious experience when, at the age of 40, he had a vision of the angel Gabriel.
Gabriel told Muhammad to spread the word of Allah, or the One God, to the Arabs. To guide him, the angel gave Muhammad the Koran, or the literal word of God.
The Koran [or Qur'an] is the Muslim equivalent of the Christian Bible or the Jewish Torah.
I believe that a fair reading of the Qur'an will bear out such statements. For those interested, I have found N.J. Dawood's translation to be useful. For those who can (unlike me) read Arabic, the linked version of Dawood's translation has the parallel Arabic text printed alongside the English translation.
Update: Timothy Sandefur weighs in with this observation:
It makes lots of people feel real good to say that we all worship the same God. But that notion requires us to jettison a great deal of what makes one religion different from another. Some folks are satisfied with that sort of theology. Christ would not have been.I don't necessarily disagree with this sentiment. Although I have represented by way of simplification that the chief difference between Judaism, Christianity, and Islam is the status accorded to Jesus, Christians have traditionally regarded this as the theological divide between heaven and hell. So it is no small difference. But this is hardly relevant to the question of whether Allah is God. If Jesus's status as Messiah is a contingent fact sufficient to establish that Muslims and Christians worship different gods altogether, then one must also conclude the same regarding Judaism and Christianity—a notion that seems historically unsustainable and which Jesus (as a Jew) would have likely regarded as rather strange.
I clerked for a federal district judge for 2 years, and during that time I learned a lot. Mostly, I learned that lawyers have no idea how to persuade the court to rule in their favor.
That's a remakable commentary on a profession that is trained how to reason and argue like a lawyer for three years. It is a given that advocates who cannot effectively advocate are, well, not advocates at all. I'll leave it to others to offer opinions on the accuracy of Ernie's assessment.
Let's have some disclosure up front: I don't like B.C.. Like some other prominent comic strips, it simply is not funny. It never has been. And Hart's propensity for none-too-subtle evangelizing does not endear it to me either. I'm a Christian. I take Christianity seriously. But I don't read comics for theological succor. Peanuts and Dilbert are more my style. Besides, there is something inherently illogical about a strip entitled Before Christ dwelling on Christianity, no?
Nonetheless, I think that this latest controversy is rather overstated. The Reader's Digest summary is that Hart is alleged to have cartooned one of his characters as saying of Islam, "Is it just me, or does it stink in here?" Hart denies that he intended to convey any anti-Islamic sentiment. Viewed in context, it is difficult to believe this denial, particularly given that the strip is otherwise senseless and unfunny. But, as I said, B.C. generally is senseless and unfunny, so there is some ambiguity on this point.
My surmise it that Hart was metaphorically criticizing Islam. I gather that some other folks feel this way too. Unlike these others, however, I am not really appalled by such criticism.
It seems to me that something is truly wrong in Islam today and that it merits ceaseless criticism. It gives me no pleasure to say so. I am generally rather ecumenical about my Christianity, and though I am hardpressed to justify such ecumenism doctrinally, it generally extends beyond my co-religionists to Judaism and Islam as well. Or at least it once did.
I know that I am not alone in my view of Islam. One can find serious academic discussions of it. See, e.g., Bernard Lewis, The Crisis of Islam: Holy War and Unholy Terror (2003). Moreover, a gander at the breadbasket of Islam, North Africa and the Middle-East, is hardly reassuring. Aside from Turkey, which major Islamic nation can one name that is not reprehensible? Of course, one should be careful to distinguish between government and religion. In Iraq, for example, the former was the problem. But our attempts to solidify a new one has demonstrated the threat to any open society posed by certain Islamic factions.
These are only factions, of course, but it seems noteworthy that modern Judaism and Christianity do not seem to produce the same dangerous elements. Quite apart from such problems, modern Islam generally does not seem modern at all. Indeed, it seems to be content to retain values straight out of the medieval era. Honor killings seem to occur with some frequency. Stoning as a sentence for adulterers (even victims of rape) is not unheard of. No one would want to live under even a moderate form of Sharia law, let alone the Wahhibism of Saudi Arabia.
Perhaps, one might argue that Hart is not offering pointed criticism but a mere generalized obloquy. This could be so, and I would not agree with an unqualified denunciation of Islam. But there is only so much complexity that one can cram into a three-panel comic strip.
What intrigues me about the perceived offensiveness of the strip in question is that no one would bat an eye if Christians were subjected to such criticism. For example, sincere conservative Christians endure no end of criticism for their views on homosexuality and their concomitant opposition to gay marriage and disdain of the result in Lawrence v. Texas. But the Qur'an is just as uncompromising on homosexuality, see Qur'an 7:80-82, 26:165-66, and it is not solely conservative Muslims who adhere to its teachings on the subject. So surely the criticism of Hart is not that Islam may not be criticized.
(Thanks to Jeremy Blachman and Timothy Sandefur for bringing this tempest in a teapot to my attention.)
A Superior Court judge has upheld the right of a tribal village to banish a dangerous resident and to get an order from state courts to enforce the banishment.In a short, scathing decision issued late Wednesday, Judge Peter Michalski refused to dissolve an injunction he issued in 2001 at the request of the Native Village of Perryville, a small Alutiiq community about 200 miles southwest of King Salmon on the Pacific coast of the Alaska Peninsula.
The injunction backed a village tribal court resolution banishing John Tague, a local man with a long history of alcohol-fueled violence against other villagers. It said Tague could not return to Perryville without first getting permission from the local council or the Superior Court.
I know little about the law involved and the state court judge's opinion does not appear to be available on the web or via Westlaw, so it is hard to have an informed opinion on the matter. I do know that exile as a criminal sanction is not unique to Alaska. Nonetheless, I do wonder about the validity of this sort of banishment. For starters, an Alaskan appellate court previously struck down a similar punishment. See Edison v. State, 709 P.2d 510, 510 (Alaska Ct. App. 1985) (vacating condition of probation that required defendant to obtain written court permission prior to entering a particular village without resort to constitutional grounds).
In the context of deportation of aliens, banishment is, of course, unquestionably valid. See Harisiades v. Shaughnessy, 342 U.S. 580, 599 (1959) (Douglas, J., dissenting) (conceding that "[b]anishment may be resorted to as punishment for crime"). But what is going on here is a form of domestic quasi-banishment. In the Alaskan case, the defendant is banished from a particular locality; in the Georgian case detailed in the second linked article, the defendant in question was banished from all but a particular county.
It does not appear that an individual state of the union could banish a resident from the state altogether without violating the constitutional right to freely travel, see Saenz v. Roe, 526 U.S. 489, 500-04 (1999), the Citizenship Clause of the Fourteenth Amendment, see U.S. Const. amend. XIV, § 1, and Article IV of the Constitution, see Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 277 (1993) (noting that "Art. IV, § 2" of the Constitution "'inhibits discriminating legislation against [citizens of other States and] gives them the right of free ingress into other States, and egress from them'"). None of these rights is implicated by internal, intrastate travel restrictions, however. See Bray, 506 U.S. at 277 (stating that "a purely intrastate restriction does not implicate the right of interstate travel").
What troubles me about such forms of quasi-banishment is not the punishment faced by the banished defendants. In Georgia, for example, banishment is authorized "only as a reasonable condition of probation or suspension of a sentence." Sanders v. State, 577 S.E.2d 94, 96 (Ga. Ct. App. 2003). Doubtless, banishment is preferable to outright incarceration.
Rather, it is the imposition that banishment places on other, innocent communities that disturbs me. In the Alaskan case, the tribal council appears to be exporting its problems elsewhere rather than bearing the social costs of its own antisocial members. In the Georgian case, a single county is being burdened with a criminal resident who might otherwise dwell elsewhere. Alaskan caselaw itself testifies to the harm that can arise as a result of passing the buck. See Krack v. State, 973 P.2d 100, 101 (Alaska Ct. App. 1999) (child molestor exiled from New Mexico as condition of pretrial diversion program took up residence in Alaska and molested dozens of additional victims). One wonders if the involuntarily burdened communities might make a claim sounding in Equal Protection.
[Note: Given the law recited above, I have no idea how New Mexico managed to banish someone from the state entirely. It may well have been illegal, but someone in the defendant's position would probably prefer exile and continued freedom to the enjoyment of constutitional rights and incarceration. Accordingly, the issue may have never been broached. Anyone with a better understanding of the law involved is welcome to chime in.]
In a letter dated June 29, 2002, Ms. Chalfoun asked Mr. Paccione about the other rapist and suggested he should "do something constructive with his deviant potential."She said an attack on three of her relatives would be easy because the rapist is Italian, just like the spouse of one of the relatives, and he could get into the house while the spouse was out by passing himself off as a cousin visiting from Italy.
"Then he could be really mean and violent," wrote Ms. Chalfoun. "One thing I insist on is that when he's beating her, he say: 'This is for all the bad things you've done to others . . . you're nothing but a whore . . . . Then he could do the Jack the Ripper thing."
Ms. Chalfoun was a court liaison officer and former probation officer. The court accepted her defense that these sentiments were a harmless fantasy rather than a genuine plot, notwithstanding the fact that her correspondence was with a convicted sex offender. A defense expert opined that, the defendant "showed a lack of judgment by writing to a sexual delinquent in prison." That seems like a bit of an understatement.
(Link via Ken Lammers.)
. . . I'm pretty sure that my body's sex just isn't an important part of my self-identity. When I hear some transsexuals talk about how important it is for them to have a particular sexed body, I'm sympathetic, but I'm also bewildered; I can't imagine caring so much about something so (to me) irrelevant.
Personally, I am not ready for Ampersand's post-sex world in which biological identity means nothing. This is not, of course, to say that it means everything. But nothing, irrelevant?
I take it that American society in general must be closer to my position (i.e., that biological sex is significant). But it's not clear to me that this sentiment will remain static. Two recent stories provide a nice framework for thinking through the implications of biological identity in the context of transsexualism:
(1) IOC To Allow Transsexual Athletes In Olympics;
The two stories provide an interesting contrast. The first features an example of notions of biologically fixed identity being relaxed in a fashion that accomodates transsexualism, while the latter depicts biological identity as paramount. Are such decisions situational, or must one principle win out? If the latter, then which principle?
This issue promises to bedevil the law, which, in many places, is premised on the notion of two mutually exclusive, readily distinguishable sexes and treats sex as dispositive. Although I have seen no comment on it elsewhere, one presumes that jurisdictions like Massachusetts will regard transsexualism in the context of civil marriage as irrelevant in the post-Goodridge world. Other jurisdictions have typically disallowed such unions, focusing on biological identity. A decision like Goodridge preempts such biologically-driven reasoning.
One foreign case has already rejected what I take to be the typical American position, though it is important to note that I am making an educated guess as to what the majority legal position is in America. Moreover, at least one American court, in an 809-page opinion, upheld a transexual union without the benefit of a Goodridge-like decision.
Although Goodridge would appear to achieve the same end result, note that the manner in which it does so is remarkably different. A jurisdiction that abides by a Goodridge-like rule simply avoids the questions raised by transsexualism altogether by declaring sex immaterial in every case. Jurisdictions that disallow same-sex unions, on the other hand, must squarely address the issues of biology raised by transsexualism.
A few weeks back I posted on cruelty to animals and was surprised to receive an inquiry about whether I'd be willing to write on the subject for TechCentralStation. I declined (too right-wing for me). . . .
I was a trifle stunned to read this bit about not wanting to write for a an outlet that does not share his political views in some overall sense. Clearly, this sentiment is not entirely invalid. After all, sensible folks would decline to be associated with a publication that espoused ideas antithetical to moral or political decency (e.g., a neo-nazi periodical). Such assessments of decency are by their nature subjective, but Tech Central Station is surely not beyond this pale.
It's not that Bertram isn't within his rights to decline such affiliation. This just seems to me to reflect an unhealthy politicization of personal decisionmaking. For example, I am none too fond of publications like The Nation and Salon. In general, I think that reading microwave instructions in lieu of these periodicals is likely to make one better educated. I do not share their politics to say the least. However, if I were offered a column at either on an issue about which I and the editorial viewpoint of the magazines were in accord, why not? I don't think much of the New York Times editorial page either, but I wouldn't hesitate to publish there if my services were desired. (I am speaking very hypothetically, of course.)
Of course, it could be worse. One of Bertram's commenters writes:
On a more serious note . . . TCS does occasionally have an article that is relevant to [her site], but I find myself reluctant to link to them—for the same reason Chris didn’t want to write for them. And then I second-guess myself for that, thinking I should judge each article solely on its merits, and ignore where it comes from. Yes but then I think—and so on.
Linking to people with whom one disagrees? Unthinkable! Imagine it . . . a world in which we actually acknowledged the existence of opposing viewpoints. The sheer godawfulness of the idea is self-evident. Acknowledge inconvenient arguments and the next thing you know you'll actually have to answer them. What's even more disconcerting is that this commenter's site's statement of purpose declares that, "to tell the truth about the world it is necessary to put aside whatever preconceptions (ideological, political, moral, etc.) one brings to the endeavour."
Update I: Bertram has posted a response that is worth reading. He writes:
I would, though, like to invite those who have suggested that I’m reluctant to read or to link to sites which disagree with my own political beliefs to peruse my postings on CT (or earlier, on Junius). They’ll see that their suggestion is misplaced. But I do see that my rather brief explanation of my unwillingness to write for TCS—"too right-wing for me"—was misleading. After all, if the Daily Telegraph offers me a column, I’ll happily accept. TCS, though, isn’t just a broadly conservative media outlet but a site that relentlessly pushes a particularly narrow agenda—"where free markets meet technology"— in a style reminiscent of "infotainment" or those articles you sometimes start reading that look like the proper thing but have "paid advertisment" discreetly tucked-away somewhere. And I felt that I didn’t want either to lend respectability to such an outfit or, conversely, to have my own undermined by association with it.
I'm not sure that I would so characterize TCS, but that's an issue that must take into account Bertram's substantive criticism of TCS's behavior too. (Bertram could be right in that criticism; I simply have not focused on the story long enough to know. TCS's conduct certainly sounds untoward—although its conduct does not amount to grounds for condemning TCS's apparently unwitting contributors.) Bertram's response otherwise seems entirely satisfactory. As this appears to have been a misunderstanding, it's hard to fault Bertram.
And I wouldn't do so. . . except that Bertram also includes this bit at the very end of his response:
I'm still puzzled by the Curmudgeonly Clerk, by the way, who opines that my deciding not write for TCS reflects an "unhealthy politicization of personal decisionmaking." Is there something wrong with allowing one's values to inform one's personal decisions?
Ah, but I do not argue that such any such overlap is unhealthy, but rather that overpoliticization is unhealthy. On an intuitive level, I thought that declining to publish with what otherwise seemed to me to be a politically mainstream media outlet was, well, overly zealous. It struck me as being akin to declining to appear on CNN or FOXNews for political reasons. Perhaps, what I am saying is that Bertram's statement struck me as an unreasonable application of an otherwise valid decisionmaking principle. As Bertram has sidestepped this criticism altogether, it does not appear necessary to become bogged down in a consideration of this argument. But it might be worthwhile to do so anyway.
Update II: For an assessment of the merits on the TCS brouhaha that runs counter to Bertram's views see this post over at Balloon Juice. B.J. also rounds up links to several other posts on the topic.
U.S. DISTRICT JUDGE Sam Kent of Galveston wants it known that he does not hate God.* * * The reason Kent wants this known is that some right-wing Web sites are painting him as an agent of Satan, and Tuesday their poisonous claims spilled into Houston's air waves.
A site called "issuesineducation.org," for example, blames Kent for the 9/11 attack on the World Trade Center:
"So when people ask where was God when this tragedy was happening? (sic) The answer is, He doesn't come in when He's KICKED OUT!"
Kent is subjected to this vitriolic nonsense primarily on the basis of a truly feeble understanding of a school prayer case over which he presided. The Chronicle explains why these accusations make no sense in light of Kent's actual rulings. But even if Kent's critics possessed an accurate understanding of the judge's rulings, their conclusions are absurd. Much as I admire Professor Leiter, I've always been inclined to regard his talk of the "Texas Taliban" as a bit overheated. Some people, however, seem determined to live up to his appellation.
This is not the first time that Kent has encountered public criticism for his courtroom conduct. See Steven Lubet, Bullying from the Bench, 5 Green Bag 2d 11 (2001). However, even Professor Lubet did not accuse Judge Kent of being in league with the Devil or ushering in the Apocalypse.
(Chronicle link via How Appealing.)
2: Before your current blog, you had another blog, but you were forced to shut it down by your employers. Could you tell us a little bit more about what happened there?Without revealing too many details, I was clerking for a federal judge at the time. I had told him about my blog, and he did not disapprove. But then some unknown person complained to another judge on the same court that I was engaging in "partisan political conduct." It was an erroneous charge. The ethics rules applicable to judicial clerks do ban "partisan political conduct," but examples of forbidden conduct are 1) running for office; 2) being involved with a political campaign; 3) hosting a political fundraiser, and the like, none of which were remotely applicable to my blog. Moreover, the ethics rules say that judges and clerks are positively encouraged to write about public topics, as long as they do not comment on pending cases. Nonetheless, the other judge raised a big fuss, and in the interests of judicial comity I was asked to forgo blogging for the rest of that year.
I think Buck is entirely right in his thumbnail assessment of the relevant ethical rules. What's remarkable about this episode is that one federal judge saw fit to interfere in the employment relationship between another judge and this other judge's law clerk. There is also something a little untoward about anonymous persons lodging complaints of ethical impropriety. Such charges are sufficiently explosive and debilitating that one ought to only make them if he/she is willing to associate his/her name and reputation with the accusations.
(1) Assault in Sports;
(2) Alleged Sex Discrimination on the Harvard Law Review;
(4) The Validity of Criminal Charges and the Necessity of Consequences for Colonel West's In Terrorem Interrogation;
(5) New Trends in Marital Surnames;
(6) Judicial Confirmations and Legal Realism;
(7) Whether Pornography Exploits or Empowers Women; and
(8) How Some Writers Misconstrued the Facts About a Controversy Over a Veterans Day Parade and Thus Failed to Appreciate Whose Free Speech Rights Were Truly Relevant and How So as well as Whose Conduct Was Genuinely Deserving of Criticism.
Regular posting here at The Curmudgeonly Clerk should shortly resume.
The "blogosphere" is littered with blogging roadkill: blogs that were set up using the easy to use blogging software and then hastily abandoned as it became obvious A) no-one was reading them; B) they’re a lot of work to maintain; and C) you very quickly run out of things to say about your cat or pot plant or conspiracy theory.A study by a survey company in the United States called Perseus found that of the four million or so blogs created using the eight major blog-hosting services at least 66 per cent had not been updated in more than two months. Over a quarter were not touched after the day they were created.
* * * The bad news is that even if you manage to keep your blog alive, no-one will read it.
According to Clay Shirky, a web expert, traffic to blogs is governed by power law distribution. This means a tiny number of bloggers get read by an awful lot of people, while the vast majority get hardly any visitors.
There's some definite truth to much of what Kirkpatrick has to say, despite the jaundiced nature of his remarks. Like Venkat Balasubramani, I think that the blogosphere is generally overhyped. Indeed, I tend to share Brian Leiter's skepticism regarding the value of the majority of the blogosphere.
However, not all blogs are doomed to obscurity by any means. Blogging is merely online writing. Thus, having something worth saying with some frequency and being able to say it well are all that is required to succeed over time. Of course, I suppose that it all depends on how you define success. If succeeding consists of having Glenn Reynolds's level of traffic, then, yes, most blogs will "fail." I doubt very much that this is how most bloggers define success, if they define it at all, however.
Nor are all blogs a waste of cyberspace. Although complaints about the quality of the majority of blogs are probably accurate, this hardly says anything about the merits of blogging per se anymore than the low quality of most books says anything about the merits of reading and writing. As with all mediums, one has to decide what is worthwhile and dispense with the rest.
Where Kirkpatrick goes overboard is in his unremitting hostility to everything blog-related. For example, of blawgs he writes:
Lord help us, there are even blawgs, lawyers blogs, or—to use a more appropriate term—achingly dull wastes of cyberspace.
I can see why a non-lawyer might not share my enthusiasm for legal minutia and might choose to read something else. But if one is looking for legal news and commentary, the best that the blawgosphere has to offer is far better than the print media generally manages. When you read Eugene Volokh on the First Amendment, for example, you are getting legal analysis from an expert. How often can you say that of newspapers and run-of-the-mill periodicals?
An attorney accused of burying an associate alive under the floor of his Manhattan apartment left court a free man Thursday after a prosecutor said she would be unable to prove kidnapping.A state Supreme Court justice dismissed the kidnapping charge filed against Lawrence Omansky, 54, after Lawrence Schlosser, 63, said Omansky attacked him, tied him up and left him under the floor boards for more than a day.
An investigation tended to support the allegations, prosecutor Elizabeth Nochlin told the judge. But she also said the investigation raised issues about Schlosser's activities and credibility.
The story concludes by noting that it took over a day for Schlosser to escape from his purported confinement, but does not offer any explanation as to why the case fell apart. Prior detailed coverage of the alleged events is available here. This coverage reveals that the two men have been friends and business associates for thirty years. Methinks the explanation for why the kidnapping charge was dismissed must be mighty weird.
HOUSTON, Texas (AP)—The president of Houston's teachers union said Tuesday that district administrators consistently refuse to honestly report on-campus violence and that she plans to force the issue.Houston Federation of Teachers president Gayle Fallon said the union will survey teachers and others in the district's 80 middle and high schools over whether principals fail to discipline violent and disruptive students to avoid having to report such statistics to the state.
If the findings show a consistent failure to comply with reporting requirements, the union will seek to suspend or revoke principals' education certificates.
Now I wonder what would make people question the integrity of HISD's administrators? What's really sad is that this dispute over crime statistics in a school district makes it sound like a juvenile prison system. Increasingly, that is apparently just how public school administrators view the situation.
In October, the U.S. Transportation Security Administration's inspector general released questions from the final exam for airport screeners, designed to measure the crucial, intensive training that the screeners had just completed. One question: "How do threats get on board an aircraft?" The supposedly challenging answers: "a. In carry-on bags; b. In checked-in bags; c. In another person's bag; d. All of the above." If that is too difficult, the inspector general also complained that 22 of the exam's 25 questions were repeats from previous exams and that some test-takers were briefed in advance.
I feel safer already.
. . . The petitioner filed for divorce from the respondent on grounds of irreconcilable differences. He subsequently moved to amend the petition to assert the fault ground of adultery under RSA 458:7, II. Specifically, the petitioner alleged that the respondent has been involved in a "continuing adulterous affair" with the co-respondent, a woman, resulting in the irremediable breakdown of the parties’ marriage. The co-respondent sought to dismiss the amended petition, contending that a homosexual relationship between two people, one of whom is married, does not constitute adultery under RSA 458:7, II. The trial court disagreed, and the co-respondent brought this appeal.. . . The narrow question before us is whether a homosexual sexual relationship between a married person and another constitutes adultery within the meaning of RSA 458:7, II.
RSA 458:7 provides, in part: "A divorce from the bonds of matrimony shall be decreed in favor of the innocent party for any of the following causes:
. . . II. Adultery of either party." The statute does not define adultery. Id. Accordingly, we must discern its meaning according to our rules of statutory construction.
"In matters of statutory interpretation, this court is the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole." Wegner v. Prudential Prop. & Cas. Ins. Co., 148 N.H. 107, 108 (2002) (quotation omitted). We first look to the language of the statute itself and, where terms are not defined therein, "we ascribe to them their plain and ordinary meanings." Id.
The plain and ordinary meaning of adultery is "voluntary sexual intercourse between a married man and someone other than his wife or between a married woman and someone other than her husband." Webster’s Third New International Dictionary 30 (unabridged ed. 1961). Although the definition does not specifically state that the "someone" with whom one commits adultery must be of the opposite gender, it does require sexual intercourse.
The plain and ordinary meaning of sexual intercourse is "sexual connection esp. between humans: COITUS, COPULATION." Webster’s Third New International Dictionary 2082. Coitus is defined to require "insertion of the penis in the vagina[]," Webster’s Third New International Dictionary 441, which clearly can only take place between persons of the opposite gender.
On a purely intuitive level, this result seems plainly wrong. Excepting some alternative marital arrangements (e.g., "open marriages"), no spouse would fail to regard such acts as adulterous. Matrimonial vows frequently include promises to forsake all others. If a state is going to retain grounds for fault in divorce, it is difficult to understand why it would narrow such fault in this fashion. (The dissent, more or less, raises these issues in dwelling on the statute's purpose.)
In response to the majority's definitional rationale, the dissenters write that, "[w]hile we recognize that 'we first look to the plain and ordinary meaning of words to interpret our statutes[,] . . . it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary.'" Interestingly, the dissenters do not contest the majority's definitions. They should have, because it's not clear that the majority's interpretation is correct on its own terms. That is, it's not obvious that the majority's plain and ordinary meaning analysis is right.
There is certainly nothing idiosyncratic about the court's chosen definition of adultery. Cf. Black's Law Dictionary 52 (7th ed. 1999) (defining "adultery" as "[v]oluntary sexual intercourse between a married person and a person other than the offender's spouse"); Merriam-Webster's Collegiate Dictionary 17 (10th ed. 1993) (defining "adultery" as "voluntary sexual intercourse between a married man and someone other than his wife or between a married woman and someone other than her husband").
Where the court possibly goes wrong is in its definition of "sexual intercourse." For example, Merriam-Webster's defines "intercourse" to mean "physical sexual contact between individuals that involves the genitalia of at least one person." Merriam-Webster's Collegiate Dictionary 609 (10th ed. 1993). Moreover, it specifically follows up this definition with the following bracketed explanatory phrases: "heterosexual intercourse," "anal intercourse," and "oral intercourse." Id. Then and only then does the definition note that the term especially connotes the first definition of "sexual intercourse," which is defined as meaning "heterosexual intercourse involving penetration of the vagina by the penis: COITUS." Id. at 1074. However, the second definition of "sexual intercourse" also notes that the phrase may mean "intercourse involving genital contact between individuals other than penetration of the vagina by the penis." Id.
The definition of "intercourse" in Black's is similarly broader. See Black's Law Dictionary 815 (7th ed. 1999) (defining "intercourse" as "[p]hysical sexual contact, esp. involving the penetration of the vagina by the penis"). Black's offers no definition of "sexual intercourse."
In other words, the majority's result hinges on its choice of dictionary. Moreover, its dictionary of choice seems to be at odds with at least two others, one of which is legal in nature and both of which are more up-to-date. If one is attempting to ascertain the "plain and ordinary meaning" of words, it is rather odd to rely on a dictionary that is from 1961 to the exclusion of all others without offering some rationale. (The relevant statute appears to date from 1938, with non-material amendments having been made in 1957 and 1999.)
The majority's decision also potentially has an equal protection infirmity, in that persons can be determined to be at fault for divorce purposes due to heterosexual but not homosexual conduct. The majority attempts to explain away this problem by noting that:
Homosexuals and heterosexuals engaging in the same acts are treated the same because our interpretation of the term "adultery" excludes all non-coital sex acts, whether between persons of the same or opposite gender. The only distinction is that persons of the same gender cannot, by definition, engage in the one act that constitutes adultery under the statute.
Without having thought about this issue too hard, it's not obvious to me that this is anything more than circumlocution or misdirection. By defining "adultery" in the fashion that it does, the majority will be exempting homosexual extramarital relationships from the same legal consequences visited upon heterosexual ones in many cases. As heterosexual extramarital relations may often, perhaps generally, involve coitus, whereas homosexual relations simply cannot do so by definition, the notion that the same acts are exempted for both heterosexuals and homosexuals alike seems somewhat beside the point. Only heterosexuals are capable of "adultery" as defined.
It's difficult to adduce a rational reason for applying the adultery fault provision of the divorce statute exclusively to heterosexuals. However, the majority's position becomes even less rational once one realizes how it distinguishes amongst various heterosexual behaviors. In order to appreciate the full legal perversity of the majority's decision, consider, for example, heterosexual anal sex. If a wife found her husband in flagrante delicto with another woman, engaged in anal intercourse, that would not constitute "adultery" for purposes of the divorce statute. (Recall that "coitus," upon which the majority relies, requires penile penetration of the vagina.) Yet, if she returned home to find her husband with another woman, engaged in vaginal intercourse, then that would constitute "adultery." The fact that the majority's position leads to such absurd results, results that, in fact, fly in the face of our plain and ordinary usage and understanding of the term "adultery," is all the more reason to consider its defintional analysis suspect.
Afterthought: It occurs to me that, in identifying the plain and ordinary meaning of "adultery," the majority becomes preoccupied with the word "coitus," a word that appears in a portion of the defintion(s) of "intercourse" and "sexual intercourse." To the extent that the definition of "adultery" is thought to be indeterminate, it might be as or more relevant to identify synonyms for the term and explore their meanings. For example, the court might have focused on words and phrases like: "infidelity," "unfaithfulness," "sleeping around," "affair," etc. Roget's Super Thesaurus 17 (2d ed. 1998).
Update: Transblog, a blog devoted to"German-English legal translation," has an informative post discussing grounds for fault in English divorce law. Although homosexual infidelity is not considered "adultery" for fault purposes in English law, it does remain a ground for fault under the additional rubric of "unreasonable behavior." New Hamphire lacks this particular ground for fault. I wonder if any American jurisdiction maintains it.
This latter characterization is less abrasive and, it seems to me, fairly accurate. My first job out of high school, but not my first job, was at a McDonald's franchise. It did indeed require little skill and offered little opportunity for advancement. This first circumstance was somewhat fortunate for me in that I was little skilled. The second circumstance was inconsequential, as I was merely killing time for six months until my military basic training began.
Although McDonald's is concerned about the purportedly demeaning nature of the definition, this does not necessarily appear to be the (sole) basis of any potential legal action. As the CNN story relates, McDonald's has also stated that it is concerned about possible trademark infringement. "McJOBS" is the name of the hiring program that McDonald's runs for "mentally and physically challenged people."
Given that (a) I know little about trademark law, and (b) McDonald's has not articulated the nature of its disparagement claim (defamation?), I am reluctant to opine on the merits. However, it does seem like any potential legal action would be an uphill battle. After all, Merriam-Webster's enterprise purports to be descriptive. That is, it merely documents English as it is spoken and written by the populace. (Some basic media research would probably indicate whether this was the case or not with reference to "McJobs.") If the word "McJobs" has, in fact, gained cultural currency then what real recourse would McDonald's have? It seems as if it would be shooting the messenger.
Thus, my initial impression is that McDonald's would likely not prevail on such claims any more than a civil rights lawsuit could be founded on the dictionary's inclusion of the word "nigger." See Merriam-Webster's Collegiate Dictionary 784 (10th ed. 1993). However, initial impressions (particularly those formed with acknowledged ignorance) can be quite mistaken. I welcome further input.
Attorney General Bill Lockyer met with Schwarzenegger on Wednesday and the two discussed several matters, including allegations that the actor and former bodybuilder groped several women and the possibility that independent investigations by local law enforcement agencies could "hound" the new governor, said Lockyer spokesman Nathan Barankin.Lockyer is a Democrat, but he also voted for Schwarzenegger in the recall. So his behavior is not necessarily political. Whatever the motives, Arnold's alleged indiscretions certainly could be the subject of credible criminal investigations, unless some procedural bar exists (e.g., a statute of limitations).In a news conference Thursday, Lockyer told reporters he urged Schwarzenegger to allow an independent third party to investigate possible criminal liability over the alleged incidents.
Barankin said the attorney general's office does not plan to conduct its own investigation because it's "up to local district attorneys and local law enforcement agencies," should they be warranted.
Also of interest, Schwarzenegger's spokesman has accused Lockyer of violating the attorney-client privlege via his public remarks. CNN reports that:
. . . Schwarzenegger spokesman Rob Stutzman held a conference call and issued a statement saying Lockyer violated attorney-client privilege by divulging "the content of communication between himself and the governor-elect."
This raises an interesting question. As one might expect, California law appears to render the state attorney general the governor's lawyer—but only with reference to questions of law related to the governor's governmental role. See Calif. Gov't Code § 12519 ("The Attorney General shall give his or her opinion in writing to . . . the Governor . . . upon any question of law relating to their respective offices."). Presumably, such opinions would be protected by the attorney-client privilege. Another state court once shielded legal work product engaged in on behalf of the governor from a state Freedom of Information Act request due to attorney-client privilege. See McCartney v. Attorney General, 587 N.W.2d 824, 830 (Mich. Ct. App. 1998) (per curiam). I have been unable to find anything in the way of California law on this point.
However, are potential criminal investigations of a sitting governor for personal sexual behavior engaged in prior to the assumption of the office related to the office? Could the state's attorney general function as the governor's lawyer in such a matter, particular given his potentially conflicting duty to render opinions to district attorneys and city attorneys? See Calif. Gov't Code § 12519 (enumerating "district attorney[s]" in the same sentence as "governor" and additionally providing for written advice "to a city prosecuting attorney when requested, upon any question of law relating to criminal matters."). Does Schwarzenegger's status as governor-elect affect the analysis of these issues? Via a spokeswoman, Attorney General Lockyer has raised both of these very issues, asserting that he merely offered advice to a friend and that his friend is not yet the Governor.
Alas, he cannot write. He is a horrid stylist; he writes like someone mashing the keyboard with bratwursts; his politics have the sophistication of a preschool crayon drawing, and his self-confidence in his insights is matched only by his inability to see how fatuous his work often sounds. Mr. Knowles is often held up as an example of New Media, one of those outsiders who’ve wrested the mike from the old tired media. Usually I support that sort of thing, but if ever there was an argument for restricting the role of Critic to the white-gloved aesthetes . . . . His review of Matrix 3 proves that if you can’t say something coherent, just say it in purple-tinted boldface 20-point Arial . . . .
After that, Lileks stops being so nice. In this case, being less nice consists of taking Knowles seriously enough to address his points one-by-one. The results are painful.
This issue was raised in a spirited fashion recently by Micah Schwartzman of Crooked Timber fame over some blistering criticism that I directed at Dahlia Lithwick. (See the first link above.) I readily and happily concede that I have come away from the debate with considerable respect for Schwartzman, who has a sharp mind and is a keen debater. It is a pity that he does not write more frequently. But despite lengthy discussion I still come away without the respect for Lithwick that he would impart. Having spent some time pondering this result, I am beginning to think that Schwartzman and I might be talking past one another. He writes:
I think the Clerk is missing out on what lots of other people see in Lithwick's writing—that she's playful, often tongue-in-cheek, less predictable than many commentators . . ., and that she makes general reading about the Supreme Court enjoyable for a large lay audience. She's not writing legal briefs; nor does she pretend to. She's writing journalistic columns about Supreme Court politics. And they’re usually pretty funny, sometimes racy, and always interestingly written.
Elsewhere, Schwartzman writes:
Lithwick's writing a column for a general audience. She isn't writing law review articles, cert petitions, legal memos or briefs. No one is relying on her specifically for legal advice. Anyone who reads her knows that she’s offering her views of the law.
The ultimate difficulty I find with this sort of defense of Lithwick is that it amounts to arguing that Lithwick's columns are fine so long as they are not taken seriously in terms of their legal content, which is, more or less, my point (i.e., that Lithwick should not be taken seriously as a legal commentator). The difference really appears to be that I see this as grounds for condemnation, whereas Schwartzman thinks that Lithwick's project is sufficiently non-legal in character to exempt it from the sort of criticism that I am levelling. Even I recognize that Lithwick can write, she just doesn't write about the law with any sophistication. That's okay, if you aren't looking for legal analysis. I guess that I just expect more from a lawyer with her credentials writing a column that explicitly runs under the heading of "Jurisprudence."
Apparently, this sort of event is not unique at Oberlin. A 1998 Drag Ball also featured a "Tent of Consent." The Chaplain's office was also thoughtfully "transformed [in]to a fetish room" for the occasion.
Meanwhile, Will Baude expresses the opinion that it's all groovy, man. Well, actually, Will never gets around to using the word "groovy." But he does offer this closing statement: "This is college, folks. People have sex. And (thankfully) not just Leftists."
I'm not shocked by the notion that young people are having sex. Nor am I shocked that some of their behavior is risque once they are safely out from under their parents' watchful eyes. However, it is more than a little ridiculous for an educational institution to fund and sponsor such behavior.
I doubt very much that anyone requires institutional assistance with his or her sex life. One of the featured activities at Safer Sex Night was a live demonstration of homosexual oral sex. Funny, I seem to recall that homosexuals were successfully engaging in oral sex before Oberlin appointed itself their mentor. Indeed, they were so successful that some states, like Texas, flew off the handle and criminalized their behavior. See Lawrence v. Texas, 123 S. Ct. 2472 (2003). College students will, no doubt, find their way sexually even if they cannot explore fetishes in the chaplain's office.
This isn't about prudishness. It is about the role of higher education. The sexual shenanigans that accompany college life are peripheral to, not part of, universities' mission. Universities may have some obligation to not get in the way of their adult students' libidinal impulses, but it is an obnoxious waste of scarce educational resources for institutions to devote funds to these activities.
Update: There has been a lot of great commentary on this story elsewhere. Ampersand of Alas, a Blog thinks that my curmudgeonry on this topic reflects a big misunderstanding on my part. However, J.H. Huebert's post suggests that my surmise that the Oberlin student body does not need institutional assistance with their sex lives might have some merit after all, notwithstanding Anthony Rickey's contrary assessment. (Huebert's and Rickey's posts are laugh-out-loud funny, by the way. So if you need a dose of humor . . . .) And, last but not least, Will Baude has officially declared that, "It's all groovy, man."
The Rev. Al Sharpton implored Senate Democrats yesterday not to filibuster President Bush's nomination of California Supreme Court Justice Janice Rogers Brown to the nation's second-highest federal court.At least one other black leader was (rightly) confounded by Sharpton's remarks; Wade Henderson of the Leadership Conference on Civil Rights evinced disbelief that Sharpton could have made the remarks attributed to him. It's not as if Sharpton has displayed a similarly nuanced perspective of racial issues in the past. As they say, politics makes for strange bedfellows.* * * "I don't agree with her politics. I don't agree with some of her background," said Mr. Sharpton, who is seeking the Democratic nomination for president. "But she should get an up-or-down vote."
* * * Mr. Sharpton echoed the concerns of many conservatives—especially black conservatives—that Justice Brown is being opposed because she doesn't conform to the Democratic ideology that many blacks espouse.
"We've got to stop this monolith in black America because it impedes the freedom of expression for all of us," Mr. Sharpton said in a television interview conducted by Sinclair Broadcasting yesterday. "I don't think she should be opposed because she doesn't come from some assumed club."
Speaking of strange, the Times article points out something else that is very odd:
At a press conference yesterday, Mr. Bond and other black leaders portrayed Justice Brown as a "far right-wing extremist" and "outside the mainstream."They were asked how Justice Brown could be described as a right-wing ideologue when 76 percent of California voters cast ballots to return her to the bench in 1998, the highest percentage of any justice in that retention election.
"It's inexplicable to me," Mr. Bond said. "I cannot think of a response. . . ."
I'm a little hardpressed to articulate a response to that question myself. Justice Brown and the California electorate are odd bedfellows as well. She was originally appointed by Pete Wilson and is an obvious conservative. Do any Californians have an explanation?