May 29, 2004

Junk In The Trunk

One of the funnier things I have noticed is that some Europeans love to criticize Americans for being fat. There is a certain pot-meet-kettle quality to these jibes, but the criticism doesn't bother me much, as it has some basis in fact. Americans' girth (among other things) has grown over time, and it would do us some collective good if we got off the couch more often. However, where obesity is concerned, junk science and junk statistics are as much a problem as junk in the trunk. The reasons cited for our weight gain are sometimes quite ludicrous.

(Daily Ablution link via Instapundit.)

Posted by Curmudgeonly Clerk at 01:07 PM | Comments (1)

May 28, 2004

Michigan's Admissions

Sometimes I just do not know what to make of the stories that circulate in the news. Take, for example, this Detroit Free Press article:

U-M's next class looks whiter; why is debated

Confusion cited on court ruling; form to apply is harder

* * *

University of Michigan admissions director Ted Spencer said the decline in minority enrollment may be due in part to confusion over the court decision last year. In the case, justices threw out a system that awarded extra points to under-represented minorities but upheld the use of race to further campus diversity.

Spencer said a tougher admissions process requiring up to four essays also may have discouraged some students.

Perhaps, I have simply become too jaded, but isn't the article, in effect, saying that a significant portion of potential minority applicants (a) cannot comprehend the Supreme Court's rulings as widely reported in non-legalese by the media, and (b) are (or perceive themselves to be) inadequate to the task of completing admissions essays? How does one go about responding to such ideas? If the latter contention is accurate, then Spencer is effectively maintaining that an essay-oriented admissions format will have the same oft-alleged effect as reliance on standardized testing (i.e., minority underepresentation in enrollment). A host of unpleasant implications seem fairly self-evident.

As unexpected andd unsettling as the proffered rationales are, however, I suspect that Ted Spencer's assessment has little basis in fact. Or rather, if there is confusion or trepidation concerning the admissions process, it is not limited to minority communities. Although "[t]his year's applications showed a 25-percent drop among African Americans," it should be noted that "[w]hite applications were [also] down more than 20 percent." Hispanic applications were only down by 13 percent though. So while enrollment deposits for white students might indicate a less ethnically diverse enrollment, it seems far-fetched to attribute this circumstance to confusion and admission essays.

(Link via How Appealing.)

Posted by Curmudgeonly Clerk at 01:52 PM | Comments (1)

May 27, 2004

Sacred Texts Online

Virginia Postrel identifies a wonderful new online resource: The Internet Sacred Text Archive.

Posted by Curmudgeonly Clerk at 03:31 PM | Comments (0)

May 26, 2004

Bestiality Case

The Ocala Star-Banner recently reported on a bestiality prosecution under Florida's animal cruelty law:

An Ocala man faces five years of probation for having sex with his pregnant fiancee's dog. Randol Corey Mitchell, 27, pleaded no contest Wednesday to one count of felony animal cruelty. Circuit Judge Victor J. Musleh withheld adjudication and sentenced Mitchell to five years of probation and a mandatory psychological evaluation. He also prohibited Mitchell from owning pets of any kind while on probation and from having unsupervised contact with other people's pets.

Presumably, the prosecution was under Fla. Stat. § 828.12(2), which specifies that "[a] person who intentionally commits an act to any animal which results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering, or causes the same to be done, is guilty of a felony of the third degree, punishable [by a term of imprisonment not exceeding five years] or by a fine of not more than $10,000, or both."

On reflection, I find it hard to disagree with the result, though I admit that the temptation to mete out harsher punishment out of sheer disgust is difficult to resist. (From the story's account of the sentencing hearing, Judge Musleh also had to suppress his revulsion in order to mete out the stated sentence.) But other parts of the Star-Banner account are quite odd.

For example, as if to fulfill stereotypes concerning overzealous prosecutors, the prosecutor in this case attempted to require the defendant to register as a sex offender:

Prosecutor Lori Henry sought sex offender sanctions against Mitchell, saying she was concerned Mitchell might try to commit sex crimes against human victims.

"I wish we could classify him as a sex offender," Henry said after the hearing. "I wish that he would have to register as a sex offender."

Suffice it to say that the defendant in this case is not anywhere close to being a "sex offender," as that term is defined in the relevant statute. Fla. Stat. § 943.0435. And the prosecutor's future danger argument seems both unsupported by any evidence and finds no support within that offender registration statute, which as a threshold matter requires a specified sort of conviction.

The prosecutor's future danger theory also seems to be at variance with the defendant's admission that this has been a "'life-long problem.'" One might conclude that a life-long problem that has apparently not yet resulted in a sex offense of the sort requiring registration would be probative of dissociation between the two very different behaviors at issue, at least in this defendant's case. The article reports that, Judge "Musleh also noted there was no evidence Mitchell had ever committed any sexual offense against a person."

In addition, although the psychological assessment rendered at or prior to sentencing, called for the defendant "to undergo a sex-offender-specific psychological examination," the psychologist's recommendation is undercut by his own analysis:

"People's sexual behavior is learned behavior," [psychologist Louis] Legum said. "It's not easy in the same way that crack cocaine or alcohol is easy to give up. . . . Meaningful therapeutic intervention has to be directed toward the behavior itself."

Under questioning by [the defendant's] lawyer Bobby Rumalla, Legum was careful to note that there was no indication Mitchell would become a sex offender without treatment.

Given this acknowledgment, one wonders why the psychologist recommended the sex offender psych exam. An understandable abhorrence of the defendant's acts appears to be the only explanation. But, like the judge, it seems to me that the psychologist had a professional duty to tap down his own revulsion in the absence of a justifiable basis for diagnosing this defendant as a potential sex offender.

(Hat tip to News of the Weird.)

Posted by Curmudgeonly Clerk at 11:03 PM | Comments (5)

Transgender Murder Case

The Araujo murder trial marches onward. The San Francisco Chronicle reports that a defense expert testified yesterday in support of the defendants' manslaughter-related defense. Complete coverage of the case is available here.

Posted by Curmudgeonly Clerk at 10:50 PM | Comments (0)


Michelangelo's David has recieved a thorough cleansing. I always thought that the grime suited the statue.

Posted by Curmudgeonly Clerk at 10:15 PM | Comments (0)

May 25, 2004

Income Tax Cranks

Reason features a curious portrait of so-called "tax protestors" (i.e, the cranks who insist that they owe no federal income tax on their wages). The article maintains that the attendees at a conference of such folks was predominately Christian in religious orientation. The sole evidence put forward for this proposition is this:

Gauging audience reaction to certain statements from the podium, I'd say the majority of them are serious Christians.

The statements in question are, for the most part, not specified. The author does ambiguously note much later that "[t]he contention that the Constitution was divinely inspired elicits a fair amount of clapping and no open unrest." Nor is the phrase "serious Christian" defined in any manner, though one of the only Christian attendees identified by name is Hutton Gibson. Notwithstanding the dearth of detail, the author continually casts the movement in religious terms, employing words like "congregations," "church," "evangelists," "crusade," "religious," "righteousness," "delivered," "devotion," "heavenly," "grace," "hell," and "God's work" throughout the article. At one point, he explictly compares them to Protestants in general. Ultimately, it is difficult to tell whether the comparison is apt or if it is just a matter of projection (i.e., the comparison, perhaps, suggests itself to the author because he believes the faith of Christians and the zeal of tax protestors are equally inexplicable?). Other religious words of a non-Christian connotation are also employed in places (e.g., "gurus," "rabbinical").

In truth, the tax protestors chronicled seem to share some primitive libertarian philosophy as much as or more than any "serious" Christianity. At one point, the author notes that, "[a]t the conference you learn that taxing violates our natural rights," a topic of mutual preoccupation among both certain Christians and libertarians. Meanwhile, the author reports that a quasi-celebrity attendee "who ha[d] a crowd of admirers following her everywhere during the conference . . . was involved in Libertarian Party activities in the early '90s and through that was exposed to [so-called] tax honesty ideas." The Party's site openly suggests that it would abolish the federal income tax, albeit apparently on policy grounds rather than those put forward by tax protestors. At any rate, one wonders what these "serious Christians" would make of Mark 12:13-17 (KJV), among other biblical passages.

(Link via Alas, A Blog.)

Posted by Curmudgeonly Clerk at 11:55 AM | Comments (5)

May 24, 2004

Hijab Case (Update)

Some time ago, I noted a federal case in Oklahoma involving a sixth-grader suspended for wearing a Muslim headscarf. The legal issues involved were interesting and apparently not definitively resolved. To the extent that resolution is necessary, however, it will not happen in this case. CNN is reporting that the case has settled.

Posted by Curmudgeonly Clerk at 10:17 AM | Comments (0)

May 23, 2004

What Jesus Wouldn't Do

I have had heated theological disputes, but they have never become this incendiary:

A Eugene woman is accused of pouring boiling oil on her boyfriend's face during an argument about a Bible verse, Eugene police said.

Angel Shuntaria Morris, 19, is being held in the Lane County Jail on a charge of first-degree domestic violence assault. Bail is set at $250,000.

Her 31-year-old boyfriend was taken to Oregon Health & Science University Hospital in Portland for treatment of severe burns to his face, neck and chest, Eugene police Sgt. Scott McKee said.

Unfortunately, the newspaper does not go on to specify what verse or theological point was involved. But I suspect that it was the old transubstantiation/consubstantiation debate though. That one always gets folks riled up.

(Link via Obscure Store.)

Posted by Curmudgeonly Clerk at 11:39 PM | Comments (4)

May 20, 2004

Contracts, Choice, Coercion

Amanda Butler has a nice but flawed response to Professor Volokh's apparent defense of the freedom of to decline to further causes one finds morally repugnant. She writes:

So, how far does a business proprietor's ability stretch to pick and choose which of his advertised services he will actually provide to a certain customer?

* * *

It's as though the storekeeper has imposed on my right (and yes, I will use that word: the right to contract). He has made an offer—"I will sell this shirt to the first person who gives me $14.99 for it—and I have accepted. Now he's trying to back out of the deal.

I think gives his argument a sympathetic but ultimately misleading cast. The vegetarian contract would probably not submit a bid to the meatpacking plant. The Democrat printer who advertises 500 flyers for $100 should fulfill that offer to all comers. And the pacifist mechanic who has tank parts on hand and knows how to fix one and whose shop is just off the interstate that leads between the army base and the battlefield . . . if he effectively has a standing offer, open to all who come and pay, then he must dance with what's brought him.

Whether Butler intends to or not (and I think she does so intend), she is making a claim about contract law here. Specifically, she is maintaining that advertising constitutes an offer and that any attemped purchase is a corresponding acceptance, thereby creating a binding contract. This, however, is NOT an accurate appraisal of contract law. As an example, I draw your attention to Zanakis-Pico v. Cutter Dodge, Inc., 47 P.3d 1222 (Hawaii 2002), in which the court opined:

It appears that this court has never directly addressed the question whether an advertisement can constitute a contractual offer. But see Sutton v. Hawaiian Trust Co., Ltd., 43 Haw. 310 (1959) (announcement that certain property will be sold at auction is not a binding contractual offer to sell but merely a declaration of intention to hold an auction at which bids will be received). There is substantial agreement among the courts that have addressed the question, however, that advertisements by merchants listing goods for sale at a particular price are generally invitations to deal, rather than binding contractual offers that consumers may freely accept. See, e.g., Georgian Co. v. Bloom, 27 Ga. App. 468, 108 S.E. 813, 814 (1921) (holding that newspaper advertisements, " 'stating that the advertiser has a certain quantity of goods which he [or she] wants to dispose of at certain prices, are not offers which become contracts as soon as any person to whose notice they might come signifies his [or her] acceptance by notifying the [seller] that he [or she] will take a certain quantity of them[ ]' "); Steinberg v. Chicago Med. Sch., 69 Ill.2d 320, 13 Ill. Dec. 699, 371 N.E.2d 634, 639 (1977) (noting that advertisements for sale of goods at a fixed price are invitations to deal rather than binding offers); Osage Homestead, Inc. v. Sutphin, 657 S.W.2d 346, 351-52 (Mo. Ct. App. 1983) (holding that an advertisement offering a rig for sale at a specified price was not a contractual offer); Ehrlich v. Willis Music Co., 93 Ohio App. 246, 113 N.E.2d 252 (1952) (noting that an advertisement for sale of a television at a specified price "was no more than an invitation to patronize the store"). See also 1 Williston, A Treatise on the Law of Contracts § 4.7 at 286-87 (4th ed. 1990) ("if goods are advertised for sale at a certain price, it is generally not an offer, and no contract is formed because of the statement of an intending purchaser that he will take a specified quantity of goods at that price"); Restatement (Second) of Contracts § 26 at 75 (1981) ("[a] manifestation of willingness to enter into a bargain is not an offer if the person to whom it is addressed knows or has reason to know that the person making it does not intend to conclude a bargain until he has made a further manifestation of assent"). Rather than make an offer, advertisements invite offers by prospective purchasers. "Only when the merchant takes the money is there an acceptance of the offer to purchase." Steinberg, 13 Ill. Dec. 699, 371 N.E.2d at 639; see also Osage, 657 S.W.2d at 351-52 (holding that a contract for sale of an advertised item was not complete until the seller accepted the buyer's offer to purchase based on the advertisement).

There is a very narrow, yet well-established, exception to this rule, which arises when an advertisement is "clear, definite, and explicit, and leaves nothing open for negotiation." Lefkowitz v. Great Minneapolis Surplus Store, 251 Minn. 188, 86 N.W.2d 689, 691 (1957); see also R.E. Crummer & Co. v. Nuveen, 147 F.2d 3, 5 (7th Cir. 1945) (holding that advertisement inviting specific bond-holders to send their bonds to a designated bank for surrender pursuant to clearly specified terms constituted a binding contractual offer); Leonard v. Pepsico, Inc., 88 F. Supp. 2d 116, 124 (S.D.N.Y. 1999) (holding that "the absence of any words of limitation [,] such as 'first come, first served,' [rendered] the alleged offer [for a fighter jet in exchange for 'Pepsi-points'] sufficiently indefinite that no contract could be formed[ ]"); Donovan v. RRL Corp., 26 Cal. 4th 261, 109 Cal. Rptr. 2d 807, 27 P.3d 702, 711 (2001) (holding that a licensed automobile dealer's advertisement regarding a particular vehicle at a specific price constituted an offer in light of the California Vehicle Code, which rendered illegal the failure to sell the vehicle at the advertised price to any person while it remained unsold); Izadi v. Machado (Gus) Ford, Inc., 550 So. 2d 1135, 1139 (Fla. Dist. Ct. App. 1989) (holding that car dealer's advertisement offering a minimum $3,000 "allowance" for any vehicle that a consumer traded in, regardless of its actual value, constituted a binding contractual offer); Oliver v. Henley, 21 S.W.2d 576, 578-79 (Tex. Civ. App. 1929) (holding that an advertisement, offering to "ship sacks of 3 bushels each, freight prepaid, to any point in Texas for $4 per sack, said sack tagged according to our state seed laws," constituted a binding contractual offer); Chang v. First Colonial Sav. Bank, 242 Va. 388, 410 S.E.2d 928, 930 (1991) (holding that bank's advertisement promising two free gifts and $20,136.12 upon maturing in 3 1/2 years in exchange for a $14,000 deposit constituted an offer that was accepted when $14,000 was deposited). In such advertisements, "there must ordinarily be some language of commitment or some invitation to take action without further communication." Restatement (Second) of Contracts § 26 at 76 (1981); see also 1 Corbin on Contracts § 2.4 at 116-122 (1993) (noting that advertisements are not presumed to be offers unless they contain unusually clear words to the contrary).

We agree with the foregoing well-established principles. Accordingly, we hold that advertisements are generally not binding contractual offers, unless they invite acceptance without further negotiations in clear, definite, express, and unconditional language.

Id. at 1236-37 (emphasis added).

Accordingly, in the vast majority of cases, Ms. Butler's contractual argument will be unsustainable. I think this fact saves Volokh's coercion argument. Butler is right that the right of contract is relevant. However, her articulation of contract law would violate existing principles of contract by quite literally forcing businessmen to contract against their will.

Posted by Curmudgeonly Clerk at 09:04 AM | Comments (8)

There's Something About Miriam (Update)

Quite some time ago, I argued (here and here) that the lawsuit surrounding the reality show There's Something About Miriam had more merit than many others suggested. I neglected to follow the story to its conclusion, however. It turns out that the lawsuit eventually settled for a substantial sum:

The six straight men who sued to prevent the broadcast of an UK reality show in which, unbeknownst to them, they competed for the affection of a preoperative Mexican transsexual quickly got over their claims of injury and public humiliation in return for a cash payment, clearing the way for the program to debut on UK television last evening.

The undisclosed settlement—which various reports pegged at anywhere between $150,000 and $250,000 a man—followed November 2003's lawsuit over the previously scheduled broadcast of the series, which had been filmed earlier in the year in Ibiza.

I am less than certain that one can gauge the relative merits of a suit on a settlement, particularly an undisclosed one. But the settlement in this case would seem to indicate that the suit was less than frivolous at the very least. The settlement figure has been reported as being substantially higher elsewhere. The show was recently re-aired in Australia.

Posted by Curmudgeonly Clerk at 02:03 AM | Comments (4)


In criticizing the libertarian conception of judicial review the other day, I made the following provocative observation:

The commonplace retort to my content with majority rule is usually a longwinded lecture on the dangers of the Tyranny of the Majority.™ The immediate difficulty with this response is that it fundamentally distorts the concept of tyranny (i.e., "a government in which absolute power is vested in a single ruler") beyond recognition. "Tyranny of the Majority" is, in fact, a rhetorical flourish and nothing more. Majority rule, by definition, cannot constitute tyranny.

I use the word "provocative" in its most literal sense, rather than as an exercise of self-congratulatory backslapping. And Milton of Trivial Pursuits was duly provoked. He retorts:

[T]his is without question the most absurd statement I have ever heard [Curmudgeonly Clerk] make. Is CC really trying to argue that because the etymological semantics of 'tyranny' rely on the notion of one ruler, it is impossible for a majority to act in a tyrannical manner? That is so preposterous I'm nothing short of flabbergasted that CC advanced it. I would think that regardless of the roots of the word 'tyrant,' it is certainly not too far-fetched to postulate that majorities can and do exhibit tyrannical behavior, given the abundance of historical examples of such behavior.

As a preliminary matter, I find it necessary to reiterate something that I said in my original post immediately after the excerpted portion above, because it will help delimit the scope of the disagreement between Milton and myself. I conceded that:

Majority rule certainly can be tyrannical in the metaphorical sense of being oppressive where minority rights are concerned.

So, like Milton, I acknowledge that majortarianism can (and does sometimes) result in the disregard of minority rights. I also genuinely share his concern about this phenomenon, though I think that Milton somewhat underestimates the capacity of the disenfranchised to effect change through majoritarian (and even supermajoritarian) institutions. Consider, for example, the passage of the Nineteenth Amendment. And, as that qualification might indicate, I also intend my remarks on tyranny to be more than a exercise in rhetoric. So what do I have in mind?

I think that the phrase "Tyranny of the Majority," while giving voice to certain legitimate concerns, expresses these concerns in a fashion that is materially misleading. Although there is a historical sense in which comparing tyranny to majoritarianism is well taken, we must remember that, when we employ the phrase "Tyranny of the Majority" we are comparing democratic majoritarianism to absolute dictatorship by way of analogy. That is, we are drawing conclusions on the basis of an asserted "resemblance in some particulars between things otherwise unlike." The use of the word resemblance in the preceding definition is, in turn, especially telling, because it so often signifies mere "correspondence in appearance or superficial qualities."

This is not just wordplay. We are talking about fundamentally different forms of government, and to characterize majoritarianism as tyranny as libertarians so often do trivializes the latter and calumnies the former. They are different in kind. To maintain otherwise is to equate the parliamentary democracy of England with the Stalin-era Soviet state. Although some libertarians, such as Timothy Sandefur, maintain just that, I think that this position merely serves to render the word tyranny so boundless as to become devoid of useful meaning.

As with so much in the law, many of our rights and much of our liberty is derivative of process rather than substantive guarantees. For example, it is often procedural rules and mechanisms that ensure the right to a fair civil or criminal trial. So too it is with our democracy to a large extent. The process of organized, fair elections renders our system of government so unalike from absolute kingship that to characterize the functioning of majoritarianism as being tyrannical utterly disregards the former's process-based freedom. It is the difference between me running a meeting and me presiding over a meeting run by those in attendance in congruence with Robert's Rules of Order.

The problem, of course, is that even an open and fair process can produce unjust results. That is, the democratic process is no guarantee against infringement of liberties, particularly of those who are outnumbered at the ballot box. This is where Milton's judicial review enters the picture, sort of.

Judicial review is, perhaps, not the inevitability we assume it to be. See generally Michael Stokes Paulsen, The Irrepressible Myth of Marbury, 101 Mich. L. Rev. 2706 (2003). But the mere fact of judicial review is a relatively uncontroversial matter today. I certainly do not reject it in principle. Milton and I only disagree regarding its proper scope and application.

Return for a moment to my process-derivative conception of liberty. Now if our majoritarian political process led to a law that required aspirants for congressional office to sign a statement affirming their belief in Jesus as Lord and Savior, a federal court would be fully justified in striking the law down as a violation of U.S. Const. art. VI, cl. 3. Not all rights are procedural in nature; substantive rights, such as some of those set forth in the Bill of Rights, are also guaranteed in our Constitution. Judicial review is utterly unremarkable and uncontroversial when it is employed to enforce a textually demonstrable substantive right against the will and design of the majority.

The calculus is quite different, however, when it comes to unenumerated rights (i.e., those without an unambiguous textual basis) of the sort championed by libertarians. Such rights were formerly advanced in the name of "substantive due process." The federal courts continue to recognize this concept. E.g., Roe v. Wade and its progeny. However, the notion of "substantive due process" has always been controversial and has lately fallen into some disrepute, owing to its utter intellectual bankruptcy, so another justification for the same result has been sought. The libertarian approach adopted by folks like Professor Randy Barnett effectively does so.

However, when arguable and ambiguous rights such as those at issue in decisions like Lawrence (the homosexual sodomy Supreme Court case) or Goodridge (the Massachusetts gay marriage case) are under consideration, employing the words "tyranny" or "judicial review" as a rallying cry might make rhetorical sense, but it does not really address the matter at hand. Critics of these decisions are not arguing for anything like tyranny, nor are they denying judicial review any place whatever. And libertarians do the debate a genuine disservice when they fail to even acknowledge that the countermajoritarian difficulty has real salience when the Court announces new substantive rights on slim textual pretext.

Those who would stake out such an ambitious role for the judiciary have a substantial burden of persuasion to carry. Although it has long been with us, the notion of judicial supremacy, which is what Milton and libertarians advocate rather than simple review, has not been the predominant conception of the federal courts until quite recently. See Larry Kramer, We the People: Who Has the Last Word on the Constitution?, Boston Review, Feb./Mar. 2004. What I find particularly lacking about the libertarian arguments presently circulating is that they seem not grapple with this issue in a serious fashion. In addition, while keenly aware of the shortcomings of majoritarianism, they seem to be blissfully unaware of the dangers of imbuing a single, insular, and rather small institution with such awesome power and incontestable authority on the most inflammatory political subjects.

A simple weblog entry (or even a series of such entries) is too meager to resolve this issue. If the reader is left unpersuaded of the virtues of my majoritarian mechanism for determining the scope of unenumerated rights and the like, I can hardly fault him. But what I do hope that this discussion has indicated is that there is a genuine debate to be had here, and that invocations of "judicial review" merely obscure this fact. The nature of freedom itself is what is being debated; cries of "tyranny" are just a conclusion masquerading as argument.

Posted by Curmudgeonly Clerk at 12:39 AM | Comments (2)

May 19, 2004

Grammar Query

I seldom invite argument on matters grammatical. I am hardly an expert, and I therefore find that distinguishing the truth from the pedantry of armchair grammarians is often quite difficult. Scholastic argumentation on such matters is generally like wrangling over the intricacies of Bluebook citation. See Douglas Laycock, The Maroonbook v. The Bluebook: A Comparative Review, 1 Scribes J. Legal Writing 181, 182-83 (1990) (characterizing the bulk of the Bluebook's content as dispensable trivia and noting that "[m]ost law students are smart enough to ignore all this nonsense after a while").

However, sometimes my impulse control fails me, and I heedlessly wander into the minefields of English usage and grammar. My latest failing in this regard was triggered by Crescat Sententia. After first noting that the word "terror" is a noun, Will Baude backtracks at the insistence of an unidentified reader:

Eugene Volokh constantly reminds us that people sometimes mis-speak or are mis-quoted when their oral remarks are recorded. So I'll withhold judgment on whether Jon Stewart is deeply confused, or if some benighted person mis-transcribed his speech. In any case, via Begging to Differ I come across this copy of Jon Stewart's commencement address, which includes the following:

We declared war on terror. We declared war on terror—it’s not even a noun, so, good luck. After we defeat it, I’m sure we’ll take on that bastard ennui.

Terror, is of course, a noun.

* * *

UPDATE: Err, as a reader points out, terror is not a noun after all. "Terror", however, is a noun. The ramifications that complication has for the above post are complicated enough that they are left as an exercise for the reader.

No explanation is offered. So readers are left to puzzle out the reasons for Baude's retraction on their own. I can discern none.

Merriam-Webster's online dictionary expressly notes that "terror" is a noun. The printed edition does likewise. Merriam-Webster's Collegiate Dictionary 1213 (10th ed. 2001). So does

Perhaps, Baude's correspondent believes that the particular usage "war on terror" renders "terror" something other than a noun. I do not understand how or why this would be so. Consider Gore Vidal's commentary on the war on terror:

[W]e declared 'war on terrorism'—an abstract noun which cannot be a war at all as you need a country for that.

Vidal's criticism seems to be grounded in the very fact that "terror" is a noun, albeit an unsuitable one against which to prosecute a war. Or at the very least, he considers "war on terrorism" to be some sort of noun.

This latter understanding, perhaps, captures the way in which "war on terror" has come to be used. Our present military endeavors are collectively referred to as the "war on terror." It is somewhat like the designation "World War II," which encompasses both the European and Pacific military conflicts. "War on Terror" might also be capitalized as being a proper noun akin to the noun "Reign of Terror." Hence, even if "terror" is somehow not a noun as used in Stewart's transcribed remarks, Stewart's understanding seems to be based on a confused understanding of how the phrase "war on terror" is actually used, though it is possible that I misunderstand the president's usage.

Perhaps, the Language Log will lend some assistance. Readers are welcome to remedy my ignorance in the comments as well.

Update I: Geoffrey K. Pullum of the Language Log was kind enough to offer this educated surmise of Stewart's thought process:

The traditional definition of the term "noun" has a fantastically strong hold on the public imagination. In old-fashioned grammar books it is usually the first line of the first section of the first chapter: "A noun," it will say, "is the name of a person, place, or thing." What Jon Stewart has dimly perceived is that terror is not a person, so we can't assassinate it; it is not a place, so we can't bomb it; and it is not a thing, so we can't find where it is and blow it up—it has no spatial location.

The trouble is, of course, that the old definition is a complete crock. It is almost useless. . . .

Mr. Pullum's entire response is worth reading.

Update II: In a further update to his original post, Will Baude has been equally kind enough to respond to my query, but he offers an entirely different rationale for potentially not considering the word terror to be a noun in this context: the so-called use-mention distinction. A general definition of this distinction is available here:

The use-mention distinction is the distinction between using a word (or phrase, etc.) and mentioning it. In written language, mentioned words or phrases often appear between quotation marks or in italics; some authorities insist that mentioned words or phrases always be made visually distinct in this manner. Used words or phrases, being more common than mentioned ones, do not have any typographic distinction.

For example,

Cheese is derived from milk.

is a statement about the substance cheese, while

Cheese is derived from a word in Old English.

is a statement about the word cheese.

Lest the reader be underwhelmed by the significance of this distinction, those professionally concerned with the meaning of language apparently do find it rather useful. A more commonplace example of the distinction's everyday usefulness may be found in this Crooked Timber post, which employs the concept as a means of deciphering what exactly was said in a certain controversy. Another brief explication of the distinction may be found here.

However, now having some rudimentary sense of what the use-mention distinction is all about, I am rather skeptical of Baude's and his (now identified) correspondent's invocation of the concept as reason for uncertainty about the nature of Stewart's remarks. What Baude has in mind is this: I (and he initially) perceived Stewart as having said:

"Terror" is not a noun.

This is, of course, utterly wrong. As noted above, the word "terror" is a noun, as is "war on terror." However, in his written speech, the word "terror" is not, in fact, placed in quotation marks or otherwise emphasized. But what could Stewart have otherwise meant? The alternative would seem to be that Stewart meant that:

The emotion or state of mind known as terror is not a noun.

And what does that mean? Apart from noting that the foregoing blockquoted sentence conveys the literal and obvious fact that thoughts and feelings are not parts of speech, it is difficult to attribute any meaning to the sentence as written. But this thought is so elementary that it is useless. After all, the word "terror" exists only to signify those feelings identified therewith. It is certainly possible that I am merely confused, but barring some plausible explanation of what Stewart might have meant by speaking of terror rather than "terror," I do not think the use-mention distinction has any work to do here.

Posted by Curmudgeonly Clerk at 12:34 PM | Comments (9)

Rethinking The Rankings

Professors Caron and Gely have published a 72-page article in the flagship journal of my alma mater entitled What Law Schools Can Learn from Billy Beane and the Oakland Athletics. Caron presents their ultimate conclusion on his weblog:

Like Michael Lewis, we have told a story about a profession and people we love. We are proud of the work law schools and law professors do in teaching future lawyers and producing legal scholarship to the betterment of American law and society. As institutions and as individuals, we have nothing to fear from the accountability and transparency spotlight. Indeed, we do our best work in the light. We should welcome the opportunity to tell the world what we do and help them measure our performance as teachers and scholars. If we do not, the story will be told by others and it will no longer be our own.

I have not yet carefully read the article, but I must confess that I approach his conclusion with some initial skepticism. Given the efforts that law school's devote to gaming rankings like those published by U.S. News & World Report, one wonders how reliable any ranking system can be. Quite apart from the incentives to be less than completely honest, what truly is the difference, for example, between the sixth ranked school and the tenth even if all of the data employed is material and accurate? One also has to wonder how meaningful the rankings are regarding regional rather than national schools. (Professor Leiter, a purveyor of an alternative ranking system, noted the Caron/Gely article some time ago, but has withheld comment.)

Professors Caron and Gefy anticipate such criticism, and they offer the following attempt at preemptive rebuttal:

In recent years, a few voices have been raised, if not in favor of any specific rankings methodology, at least in favor of the concept of ranking law schools. These commentators argue that by providing information about the performance of law schools, the rankings inject needed accountability and transparency into legal education.

For example, rankings provide applicants with convenient access to useful information. Bar exam pass rates and placement statistics provide comparative data on issues of particular interest to prospective students.

Rankings also provide a useful sorting function. As Russell Korobkin has argued on these pages, critics of law school rankings may be correct in their substantive claim that rankings do not accurately measure the quality of legal education. But these criticisms are irrelevant because the purpose of rankings is to coordinate the placement of students with employers: "the existence of rankings fulfills the purpose of rankings, without reference to what the rankings claim to measure or how well they measure it." The sorting argument is based on the premise that in the labor market for newly minted lawyers there is a need for "high quality" applicants to differentiate themselves from "low quality" applicants. Similarly, legal employers need a way of sorting high quality from low quality applicants. Law school rankings thus help applicants and employers bridge this gap . . . .

Rankings thus serve a useful sorting function regardless of the manner in which they are compiled.

Frankly, in the absence of meaningful criteria and data, I fail to understand how rankings qua sorting system would operate in any rational fashion. Perhaps, the general idea is just that some selection mechanism, even a bad one, is necessary. Necessity is as good an argument as any for the existence of rankings, but it does not necessarily follow that this need for a selection mechanism will provide "accountability" or "transparency." For that, we would need some consensus about what the material criteria are and a commitment to perfect candor concerning the relevant data. Perhaps, both consensus and candor will be forthcoming, but how likely is that? As Professors Caron and Gefy note, law schools are actors in an imperfect legal market, and they have all of the corresponding incentives to manipulate that market to their best advantage.

Posted by Curmudgeonly Clerk at 09:36 AM | Comments (3)

May 18, 2004

The Most Overrated Case Ever?

Although I find much with which I disagree in his commentary, Publius has a useful discussion of Brown v. Bd. of Educ. and its legacy. Some of of his thoughts coincide with my own views on the matter, which I have briefly touched upon here and here. But for a genuine sense of disappointment concerning Brown, one need look no further than Thurgood Marshall's musings.

Posted by Curmudgeonly Clerk at 09:05 AM | Comments (1)

May 17, 2004

Liebeck Revisited

A fellow alumnus of my law school alma mater has an interesting draft paper available on the Social Sciences Research Network that discusses the Liebeck case at length. Of particular interest is the following excerpt:

With respect to the coffee spill case, sensationalism has unfortunately twisted it in such a way that the true outcome is either ignored or not known. It is, in fact, very close to impossible to fully set the record straight on the coffee spill case. The case is not reported or published . . . . Westlaw has a simple one-page "unpublished" version available as part of its database service. Lexis-Nexis has no record of the case. . . . Consequently, in order to find out what truly happened, one is required to review many different sources that discuss the topic. Sources include consumer-biased Web sites, personal Web sites, newspaper articles, and a few law review articles.

My own attempts to set the score straight on the Liebeck case may be found here and here.

Posted by Curmudgeonly Clerk at 06:03 PM | Comments (1)

Assume Libertarianism

I think that this post by Timothy Sandefur is as good as any for illustrating one (of the many) things that I find unpalatable about the arguments of modern libertarianism. After caricaturing the conservative view of the judiciary, Sandefur goes on to write in his latest post on the topic that:

But that’s different than the situation in, say, Lawrence v. Texas, the case that inspired the post in question. There, the private, adult, consensual sexual activity cannot be said to harm any third person in any but the most attenuated way.

The upshot of the excerpted passage is that conservatives cannot legitimately complain of judicial intervention in certain matters, because the judicial actions in question merely enforce Mill's harm principle. Sandefur might not characterize his argument thusly, but that is an accurate encapsulation of the general idea. Basically, it elevates the philosophy of John Stuart Mill to constitutional status.

It is not clear to me why we should read a principle enunciated in 1859 back into the Constitution, but I am sure that libertarians have all sorts of selective quotations from the founding fathers that, notwithstanding their incompatible historical conduct, demonstrate that they were all committed closet libertarians (e.g., "I agree almost entirely with the political philosophy of the American founding. So it’s not surprising that I would think the Constitution ought to be enforced as it was written."). Although Sandefur has bothered with such originalist argumentation in the past, when push comes to shove, he'll just jettison the views of the founding altogether (e.g., "But, again, even if the founding generation saw that as acceptable does not make it so.").

I think what bothers me about Sandefur's argumentation is that it amounts to this:

Assume libertarianism; everything else follows.

Now, I hasten to add that Sandefur is not by any means intellectually lazy. My point is not that he will offer no argument for why one ought to begin from a foundation of libertarianism or the harm principle (or however one would care to thumbnail sketch libertarian thought). My point is that, ultimately, the harm principle is not just a political program, but a moral position. In the absence of a shared libertarian moral consensus, assertions that "x" violates the harm principle simply fail to persuade. And, like declarations of moral disgust, I am uncertain to what extent the harm principle qua first principle is subject to rational disputation. (That is, how would one go about convincing a person who rejects the harm principle to embrace it?)

This then is ultimately why I am inclined to leave certain foundational questions to the will of the people (via the legislature) rather than the courts: at bottom, majority consensus concerning what (not fully rationally debatable) first principles to adopt seems preferable to having society's foundational rules announced from on high by a secular Sanhedrin. In the end, society's rough moral calculus, however flawed, is about all we have when it comes to first principles. Those dissatisfied with the arithmetic always have the democratic process for pressing for a recalculation. Similarly, this is why I have little patience for those who want to employ the Ninth Amendment in a manner that would effectively convert the Supreme Court into a Council of Revision.

Democratic institutions are not by any means fullproof. Our own history provides ample proof of that. But it likewise demonstrates that the courts are hardly infallible. Even libertarians concede as much. (Just mention the Slaughterhouse Cases in a libertarian's presence.) So I am always at pains to understand why some are inclined to entrust such a small, insular, and largely unaccountable institution with so much authority.

The commonplace retort to my content with majority rule is usually a longwinded lecture on the dangers of the Tyranny of the Majority.™ The immediate difficulty with this response is that it fundamentally distorts the concept of tyranny (i.e., "a government in which absolute power is vested in a single ruler") beyond recognition. "Tyranny of the Majority" is, in fact, a rhetorical flourish and nothing more. Majority rule, by definition, cannot constitute tyranny.

Majority rule certainly can be tyrannical in the metaphorical sense of being oppressive where minority rights are concerned. But I am afraid that those who expect the law to correct such injustices would have it supplant the role of moral and political suasion (however that not fully rational process is understood to operate). Although we are in the midst of a celebration of Brown v. Bd. of Educ. at the moment, it is hard to say that Brown changed societal attitudes about racial arrangements so much as it reflected changing attitudes about race in America. In the South, it was met with open resistance. Although the relation between seminal cases like Brown and societal change is too complex to accurately characterize in a sentence, the later outcome of the Court's school busing decisions (which was white flight from urban school districts) indicates that the Court cannot lead where the populace will not follow. Yet that is precisely what libertarians would have the federal courts do: force march a stiff-necked people to their conception of the promised land.

Update: Timothy Sandefur responds here. Time constraints prevent rebuttal at the moment. But immediate response is hardly required being that Sandefur and I appear to be locked in the blogospheric equivalent of a forever-war. In the meantime, I commend interested readers to his post, which deserves to be read in full.

Posted by Curmudgeonly Clerk at 10:10 AM | Comments (0)

May 16, 2004

Yet Another Canine Case

Apparently, I am going to have to do a post on Louisiana dog law as well, though I imagine it is similar to Tennessean jurisprudence.

Posted by Curmudgeonly Clerk at 07:44 PM | Comments (0)

May 15, 2004

Ain't That A Peach?

The Associated Press offers this account of the peculiarities of Georgia's law:

Marcus Leonard Mundy, 19, was charged with misdemeanor statutory rape and sentenced to 10 years probation, and he must complete high school, make child support payments, pay $250 in court costs and attend a prison awareness program.

The relationship between Mundy and his future wife started in fall 2002, and when she became pregnant, the two got married.

Under Georgia law, a 13-year-old can't legally consent to sexual activity but can get married without her parents' consent.

* * *

"I have thought long and hard about this case, and it troubles me greatly," said Judge David Irwin. "Were it not for the wishes of the victim's family, Mr. Mundy would be going to jail."

It's easy to disapprove of this situation on both moral and prudential grounds to be sure. But what amazes me is that, in the absence of pleading from the family of the "victim," this judge honestly thought the best thing for this girl and her impending child would be to incarcerate her husband and the child's father. (I have encountered more than one such case in Texas where the family's pleading was unavailing.) Yet, under the state's law, had the couple merely gotten married prior to having sex (which the girl could do without anyone's permission), the law would deem the very same sexual conduct complained of permissible. How does that make any sense? Reasonable minds might differ on how the law should be reformed, but doesn't a set of laws this incongruous require some reform?

Posted by Curmudgeonly Clerk at 10:11 AM | Comments (2)

A Word To The Wise

Given our child pornography laws, this is NOT an advisable way to go about reporting illicit teenage sex to the authorities:

One man, who says he has seen the sex acts happen at Rogers Middle School before, claimed he taped what was going on to prove kids were doing something they should not.

It kind of reminds me of the time aides of President Bush (41, the elder) purchased crack in order to demonstrate the pervasiveness of drugs.

Posted by Curmudgeonly Clerk at 09:53 AM | Comments (1)

May 14, 2004

Proposition 12 Reconsidered

When I saw this post over at How Appealing, I immediately thought to myself: Ah, Exhibit A in the case against Texas's recently passed Proposition 12. The post reads:

Flatt sues claiming botched circumcision: The Associated Press provides this report from North Dakota.

But a closer reading of the Associated Press report leads to the exact opposite conclusion. That is, the lawsuit in question is of the exact variety that motivated Proposition 12. You see, this case does not involve allegations of a botched circumcision at all:

The parents of a newborn boy were not adequately informed of the risks of having their child circumcised before the procedure was done, their lawyer argued in the North Dakota Supreme Court.

* * *

The youngster, who is now 7, was "surgically diminished without medical diagnosis, not for the purpose of curing a disease, and it was not for medical treatment," [plaintiff's attorney] Baer said. "The integrity of genital tissue is a constitutionally protected right."

* * *

Anita Flatt signed a consent form before the circumcision was performed. Angela Lord, an attorney for Fargo's MeritCare Hospital and Dr. Sunita Kantak, who circumcised the child, said Flatt was told about circumcision risks that may have affected the child's health.

* * *

Anita Flatt does not argue the circumcision was botched, but says she should have been fully briefed about the procedure's benefits and consequences.

* * *

The Flatts' lawsuit had also objected to a North Dakota law that forbids female genital mutilation, arguing that it did not give equal legal protection to both sexes.

* * *

"Flatt was not forced to be circumcised, or prohibited from being circumcised. The medical decision was left to him and his parents," Bahr wrote in a court filing. "Flatt's surgery is traceable to his parents' consent for the procedure."

In other words, there is no actual physical injury involved here. No negligence is alleged. The plaintiff is complaining of a medical procedure that was properly performed with her consent. Another article on the story also points out an additional interesting detail: the plaintiff's mother is a lawyer and Baer's former law partner. So we are not talking about an ill-educated plaintiff. Viewed from a distance, the whole suit looks like an attempted shakedown. And the trial court apparently saw it that way too, because it ordered the plaintiff "to pay $58,506 in defense costs."

I remain leary of Proposition 12, which I still think may be overly broad. However, when plaintiffs persist in filing these sorts of suits, they force the hand of the people and its legislature. Indeed, if plaintiffs persist in filing suits like this one, they will even make a believer of me where tort reform is concerned.

Posted by Curmudgeonly Clerk at 09:54 AM | Comments (9)

May 13, 2004

Necrophilia Case (Update)

I previously noted that the sexual assault charges leveled in this case could not possibly stick. Prosecutors came to the same conclusion:

. . . According to Assistant District Attorney Adrian Ivancevich, who is prosecuting the case, there are no laws in California that specifically address necrophilia.

"Trust me, we looked all over the penal codes. We looked everywhere. There is no charge for having sex with a corpse," Ivancevich said. "This is just one of those gaps that the legislature has not dealt with."

Ivancevich said there were laws against mutilating corpses and disinterment—digging a body out of a grave—but not against "having simple sex."

Supposing that the legislature were inclined to remedy this gap, one wonders in what subsection of the Penal Code it would place this offense. As the state's caselaw demonstrates, necrophilia does not analytically fit within the concept of rape. Surprisingly, there is a law review article that addresses this very topic. See Tyler Trent Ochoa & Christine Newman Jones, Defiling The Dead: Necrophilia and the Law 18 Whittier L. Rev. 539, 576-77 (1997) (suggesting that it employee definitions from a subsection pertaining to sexual abuse by employees of public healthcare or correctional facilities, but contemplating a whole new subsection for the new provision itself). The article also suggested that such a provision might be located in the Health and Safety Code. Id. at 576.

Posted by Curmudgeonly Clerk at 10:59 PM | Comments (1)

May 12, 2004

Supreme Speech

Imagine the following scenario. Two Supreme Court Justices have a public speaking engagement that is reported on by the media. During his (or her) remarks, one of the Justices addresses a controversial legal issue, one which has and continues to foment litigation that makes its way to the Supreme Court. Notably, the second Justice declines to offer his (or her) opinion on the subject when queried.

But why imagine? Reports the Chicago Sun-Times:

U.S. Supreme Court Justice ["X"] told a convention of lawyers and judges in Chicago, "I think this country would be much better off if we did not have capital punishment."

* * *

["X"'s] 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 ["X"'s] 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."

[In contrast, Justice "Y"] declined to give his take on the death penalty . . . .

Abdon M. Pallasch, High Court Justice: U.S. Would Be Better Off Without Death Penalty, Chicago Sun-Times, May 12, 2004.

Recent years have seen more than one notable death penalty case reach the Court. Indeed, at least one death penalty case is pending before the Supreme Court right now. Additional death penalty cases are sure to follow.

So is the Justice's public pronouncement worthy of condemnation? Does it violate any ethical obligations? If not, does it nonetheless create an appearance of partiality? I suspect that we will never engage in such handwringing over the Justice's public remarks, because his name is not Antonin Scalia.

The Justice in question is John Paul Stevens. For the record, I think he owes no apology whatever for his public remarks. With few exceptions (e.g., specific pending cases), the Justices do and ought to enjoy speech rights as robust as any other citizen of the Republic. Moreover, the notion that his remarks could possibly create an impression of impartiality or improper prejudgment regarding death penalty issues is laughable. Court watchers already know where Justice Stevens stands on the issues based on his written opinions.

My point really concerns the fatuous double standard wielded by the members of the media establishment who are all too willing to condemn Scalia for conduct that they decline to notice when it is engaged in by his brethren—unless they are shamed into being consistent. Indeed, at least one prominent critic of Scalia actually praised another Justice for publicly speaking on a controversial issue. He held the proper opinion it seems.

(Sun-Times link via Howard Bashman.)

Update I: Two counterarguments to my thesis have been put forward in the comments to this post. I don't think either has merit, but both are well worth addressing as an update to the original post. The first proposed counterargument is along the lines of "But Scalia should have recused himself in Newdow. The second proposed counterargument is along the lines of "But Scalia's duck-hunting trip with the vice president merited criticism."

The first counterargument is largely nonresponsive. I conceded in the original post that Justices should not publicly discuss "specific pending cases." Scalia did this with reference to Newdow and recused himself as a result. Criticism of his conduct in that case was warranted, albeit his willingness to recuse himself ought to (but did not) mute that criticism somewhat. (Unlike many public officials, Scalia is quite willing to admit mistakes, but gets little credit for that either.) In the original post above, I linked to a prior post of mine in which I expressly endorsed William Dyer's excellent analysis of the recusal issue in Newdow.

The problem is that Scalia is excoriated for any public speaking engagement. For example, consider this scurrilous tract that condemns him for publicly discussing Lawrence well after the decision had been handed down. Such criticism is articulated in terms of ethics, but the accusations are in reality nothing more than substantive disagreement masquerading as ethical dilemma. In short, the charges are trumped up. And as I and others have noted, the same bogus charges tend not to be leveled at the other members of the Court for similar public speeches on controversial legal issues. This is the double standard to which I am referring.

The second counterargument is entirely irrelevant. My post concerns public speaking engagements and the criticism that has resulted, not private social events. Even assuming arguendo that Scalia's hunting trip with Cheney was improper, it just has nothing to do with the topic at hand. Having said that, even one of the individuals who raised the issue in the comments concedes that the trip was not improper! But being that the issue has been raised, the whole flap over the hunting trip is partisan in character, and reflects the very double standard that I maintain exists. Paterrico's Pontifications demonstrated this to great effect back in March. Frankly, given the social circles in which the Justices swim, it would be impossible to live up to the sort of recusal standard that the anti-duck hunting crowd proposes. For example, Scalia is also a personal friend of Nadine Strossen, the president of the ACLU. Is he to recuse himself from cases involving the ACLU, or just discontinue the friendship?

Update II: Another commenter seems to suggest that most criticism of Scalia is substantive in nature, rather than of the variety that I condemn in the first update. That is, it's his impression that Scalia is not criticized merely for speaking in public.

I cannot necessarily fault my commenter for having missed this tendency to criticize Scalia's public remarks solely on the basis that they are delivered off of the bench. Such is the temper of the criticism routinely directed at Scalia that it is easy to get lost in the hyperbole and demonization. See, e.g., Tony Mauro, Oyez, Oyez, Oy, Corporate Counsel, May 2004, at 147 (quoting internal memo from law clerk to Justice Blackmun that refers to Scalia as "evil Nino"); Gregory Shafer, Ten Years From Now . . ., Humanist, Jan. 1, 2004, at 39 (characterizing Scalia's dissent in Lawrence as offering up "many of the most vile and predictable prejudices about gays and lesbians"). Although substantive criticism of Scalia's positions is perfectly fair, of course, distinguishing it from the ad hominem can often be quite a challenge. Indeed, the general excoriation of Scalia is such a pervasive media phenomenon that law schools could quite literally offer a contemporary law & literature course entitled Scalia as the Other if they were so inclined.

But a distinctive subset of the vituperation directed at Scalia is aimed at the very fact that he appears in public and offers his opinion on controversial legal issues whatever. This trope is so familar that I am somewhat surprised that I am called on to produce additional examples. In the original post, I cited a Slate column that criticized a speech in which Scalia ridiculed Lawrence after the decision had already been handed down, insinuating that there was an ethical or professional problem with such conduct.

This sort of criticism generally posits that there is a nearly universally honored tradition or ethical or professional obligation that precludes the Justices from publicly speaking about controversial legal topics quite apart from the well understood restriction concerning pending or impending cases. Scalia is cast as a rogue Justice who flouts this tradition/obligation to the detriment of the Supreme Court as an institution. Implicit in this criticism is that Scalia's behavior is improper.

Examples other than the one provided by the Slate article are not hard to locate. Consider, for example, the brouhaha surrounding Scalia's remarks concerning the obligations of Catholic judges. That incident is a particularly good one to focus on because, like Justice Stevens's recent speech, it concerned the death penalty. It is also instructive precisely because Justice Scalia has previously been criticized for publicly speaking about the death penalty in particular. Carrie Johnson, In Judicial World, No Clear Verdict on Jackson; Microsoft Remarks Spur Debate on Speaking Out, Washington Post, Aug. 9, 2001, at E01, available at 2001 WL 23185531. Meanwhile, Justice Stevens's remarks are met by the chirping of crickets.

Much of the criticism concerning Scalia's statements about Catholicism and the death penalty was both hyperbolic and inaccurate in general, but the notion that Scalia had violated some sacred precept of our civil religion by publicly addressing a controversial legal issue was raised again and again. See, e.g., Adam Liptek, Low Profile Eludes Conservative Justice; Scalia Attacks Court Decisions of Past, Chicago Tribune, May 2, 2004, at 14, available at 2004 WL 77188613 ("Stephen Gillers, who teaches judicial ethics at New York University, said Scalia is not behaving as a justice should. 'Scalia is calling undue attention to himself, by mixing it up publicly in a way we associate with players, not referees, which is what a judge is supposed to be,' Gillers said."); Robert F. Drinan, Faulty Theology, Strange Jurisprudence, Nat'l Catholic Rptr., Apr. 5, 2002, at 21, available at 2002 WL 10828722 ("When the University of Chicago Divinity School, in connection with the Pew Forum on Religion and Public Life, planned a conference on religion and the death penalty someone invited Supreme Court justice Antonin Scalia. Everyone was more than a bit surprised when he came. By a long-followed tradition members of the Supreme Court do not speak up on topics that might come before their court."); Tom Blackburn, Scalia vs. Pope on Death Penalty, Palm Beach Post, Mar. 4, 2002, at 16A, available at 2002 WL 15252780 ("An old rule holds that Supreme Court members are to be heard from but not seen. Ignoring that tradition, Justice Scalia appeared in two public forums, the University of Chicago Divinity School on Jan. 25 and, a week later, at Georgetown University.").

The reality, of course, is quite different. There is a fairly well established practice of public speaking on legal issues (controversial and otherwise) by sitting Supreme Court Justices, so much so that Justice Souter's comparative reticence to engage in such activities is newsworthy. Numerous speechs by sitting Justices, some of which do touch upon contentious legal issues, are actually available on the Court's own website. Others periodically surface in the news. The Code of Conduct For United States Judges, which governs the conduct of federal judges but does not explicitly govern the conduct of the Justices, actually authorizes federal judges to "speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice" so long as those activities do not run afoul of other professional obligations.

One would not know any of this based on the treatment that Scalia receives, however. The reason is simple. Scalia is held to a standard that no other Justice is expected to meet.

Update III: It is worth noting that the Washington Post also ran an Associated Press story covering Justice Stevens's statements on the death penalty, so his remarks are being widely disseminated. Therefore, if Justice Stevens's speech fails to generate similar controversy, it will not be on account of its obscurity. The New York Times similarly ran a brief (and far less informative) synopsis of the Associated Press story.

(Post link via Howard Bashman.)

Update IV: This is not the first time that Justice Stevens has publicly spoken out against the death penalty either.

Posted by Curmudgeonly Clerk at 10:22 AM | Comments (12)

You Buying?

From Reuters emerges some potentially heartening news in this otherwise drab election season:

[Senator and presidential aspirant John Kerry] also sought to dispel the notion he was aloof, asking one television interviewer: "Have you had a beer with me yet? I like to have fun as much as the next person, and go out and hack around and have a good time."

I can only hope that this means he intends to start campaigning the old-fashioned way.

(Reuters link via Begging to Differ.)

Posted by Curmudgeonly Clerk at 12:01 AM | Comments (0)

May 11, 2004

Section 215

Michael B. Mukasey, Chief Judge of the United States District Court for the Southern District of New York, opines on Section 215 of the USA PATRIOT Act:

More recently, a statute called the USA Patriot Act has become the focus of a good deal of hysteria, some of it reflexive, much of it recreational.

My favorite example is the well-publicized resolution of the American Library Association condemning what the librarians claim to believe is a section of the statute that authorizes the FBI to obtain library records and to investigate people based on the books they take out. Some of the membership have announced a policy of destroying records so that they do not fall into the hands of the FBI.

First a word on the organization that gives us this news. The motto of this organization is "Free people read freely." When it was called to their attention that there are 10 librarians languishing in Cuban prisons for encouraging their fellow countrymen to read freely, an imprisonment that has been condemned by Lech Walesa and Vaclav Havel, among others, this association declined to vote any resolution of condemnation, although they did find time at their convention to condemn their own government.

In addition to the library association, many towns and villages across the country, notably Berkeley, Calif., and Amherst, Mass., have announced that they will not cooperate with any effort to gather evidence under the statute. A former vice president has called for the statute's repeal, and a former presidential candidate has called the act "morally wrong," "shameful" and "unconstitutional."

* * *

What about the section the librarians were so concerned about, Section 215? Well, it bears some mention that the word library appears nowhere in that section. What the section does authorize is the issuance of subpoenas for tangible things, including business records, but only upon approval by the Foreign Intelligence Surveillance Court. Such a subpoena can direct everyone, including the record keeper, not to disclose the subpoena to anyone, including to the person whose records were obtained. That section also specifically forbids investigation of a citizen or a lawful alien solely on the basis of activity protected by the First Amendment. It requires that the Justice Department report to Congress every six months on subpoenas issued under it. At last report, there have been no such subpoenas issued to libraries. Indeed, there have been no such subpoenas, period.

Let me hasten to add that it is not impossible to imagine how library records might prove highly relevant, as they did in one case, very much pre-9/11—the case of the "Unabomber," Ted Kaczynski. Some of you may recall that Kaczynski was apprehended soon after a newspaper agreed to publish his manifesto, and was caught based principally on a tip from his brother, who read the manifesto, and recognized the rhetoric. But one of the ways that tip was proved accurate was through examination of library records, which disclosed that the three arcane books cited in the manifesto had been checked out to Ted Kaczynski from a local library—a devastating bit of corroborative circumstantial evidence.

Like any other act of Congress, the Patriot Act should be scrutinized, criticized and, if necessary, amended. But in order to scrutinize and criticize it, it helps to read what is actually in it. It helps not to conduct the debate in terms that suggest it gives the government the power to investigate us based on what we read, or that people who work for the government actually have the inclination to do such a thing, not to mention the spare time.

The Spirit of Liberty: Before Attacking the Patriot Act, Try Reading It, Wall Street Journal, May 10, 2004; but cf. Emily Ramshaw, Librarians Fear Mandate Shelves Visitors' Privacy; Concerns Passing Through the Stacks as a Result of Patriot Act, Dallas Morning News, May 10, 2004; David Paulsen, Petitioners Want to Revise Patriot Act; Governmental Monitoring of Reading Lists Rankles Some, Wausau Daily Herald, May 5, 2004.

Posted by Curmudgeonly Clerk at 09:11 AM | Comments (14)

May 10, 2004

Our Age Of Complexities

The Tennessee court of appeals ponders the perils incident to canine protection of private property in this topsy-turvy world of ours:

We are not unmindful of the difficulties that beset the owner of a dog. The hardships imposed upon him excite our keenest sympathy. The owner of personal property can find no place where thieves do not break through and steal. He can scarcely call anything his own. Naturally he thinks of a dog for protection. Yet a dog is worthless unless he has a fierce disposition, and if he has a disposition that makes for efficiency as a protection of property, how can he be taught to discriminate between burglars and honest people. If he is kept chained, the thief may calculate the length of his tether. If left at large he may go out the gate, or hurt some one who has a right to enter. It is one of the most trying positions that confront the citizen in this age of complexities.

Goens v. Jones, 1 Tenn. App. 294, 1925 WL 1887, at *2 (Tenn. Ct. App. 1925).

Posted by Curmudgeonly Clerk at 11:05 PM | Comments (1)

Tennessee Dog Law

This unfortunate story from the Tennessean caught my eye:

The owners of Gizmo, a 16-year-old Yorkshire terrier killed last month when they say he was kicked like a football, are asking a court to award them $200,000 in damages.

* * *

''Gizmo was more than just a pet,'' Jelani Lewis said. ''He wasn't just an animal. Myself and Jessica, we took care of Gizmo, and that was our kid. I can't describe the emptiness I feel, and I don't know that it will be replaced.''

The suit names as defendants Chad Daniel Crawford, charged by police with kicking the dog [misdemeanor animal cruelty and felony vandalism], along with two other men, and Nashboro Village Apartments, where the couple lives [and for which defendant Crawford worked as an employee]. The couple seeks punitive and compensatory damages in the April 5 incident.

* * *

In the civil case, Jelani Lewis said the suit is partly designed to get the attention of state lawmakers and encourage them to pass tougher laws against those who attack animals.

* * *

Lewis' lawsuit said all three men celebrated, saying the dog was ''so dead,'' and cheering when the dog was kicked into the air and killed. The 11 p.m. incident occurred when Lewis took trash outside and the dog went to a grassy area.

It is not clear from the coverage what causes of action have been asserted, but additional factual details are available here.

Initially, I was quite skeptical of this suit's chances. However savage the conduct involved, it is difficult to attain a serious damage award on the basis of events involving pets due to their status and market valuation as private property. Gizmo's status as property is precisely what has enabled authorities to criminally charge some of the civil defendants with vandalism.

As early as 1918, the Supreme Court of Tennessee found itself reiterating "that dogs are property." State v. Erwin, 200 S.W. 973, 973 (Tenn. 1918). Indeed, the high court of Tennessee once struck down a particualr tax on dogs as constitutionally impermissible form of double taxation. Id. at 974. More modern cases from both the civil and criminal realm demonstrate that dogs are regarded by the law as mere property. See, e.g., State v. Hartley, 790 S.W.2d 276, 277 (Tenn. 1990) ("Defendant [appealing order requiring his dog to be destroyed] insists that the use of a bench trial to decide issues affecting his property interest in his dog deprives him of the right to a jury trial . . . ."); Blair v. Blair, No. M2001-02790-COA-R3-C, 2003 WL 1092759, at *2 (Tenn. Ct. App. Mar. 13, 2003) (unpublished opinion) (considering two dogs as marital personal property in divorce proceeding); State v. Nimro, No. 03-C-01-9207-CR-00232, 1993 WL 189944, at *3 (Tenn. Crim. App. June 4, 1993) (unpublished opinion) (declining to consider pets—who suffered no harm—as "victims" of arson); State v. Harrison, 756 S.W.2d 716, 717 (Tenn. Crim. App. 1988) (defendant indicted for "for larceny and receiving and concealing stolen property, a dog, valued at less than $200.00").

However, much to my surprise, there does appear to be at least one cause of action under Tennessee law that might provide for a more substantial recovery (i.e., more than the dog's market value) under such circumstances: intentional infliction of emotional distress. See generally Arnett v. Domino's Pizza I, L.L.C., 124 S.W.3d 529, 539 (Tenn. Ct. App. 2003) ("In Tennessee, there are three essential elements to a claim for intentional infliction of emotional distress: the defendant's conduct must be intentional or reckless; the conduct must be so outrageous as not to be tolerable by civilized society; the conduct must result in serious mental injury."); see also Lawrence v. Stanford, 655 S.W.2d 927, 930-31 (Tenn. 1983) (alleged threat by veterinarian to "do away with" dog under treatment unless bill was timely paid in full sufficient to satisfy outrageous conduct element of intentional infliction of emotional distress claim); see, e.g., Ivey v. Hamlin, No. M2001-01310-COA-R3-CV, 2002 WL 1254444, at *3 (Tenn. Ct. App. June 7, 2002) (unpublished opinion) (rejecting claim of intentional infliction of emotional distress for deputy's killing of dog due to the circumstances). Of course, even if the plaintiffs can establish the foregoing elements, establishing damages of the size requested would be another matter altogether. But the cause of action for intentional infliction of emotional distress at least appears to provide an opportunity to receive more than the mere monetary value of the dog.

Recovery for the simple market value of a dog has long been possible, of course. See, e.g., Howard & Herrin v. Nashville, C. & St. L. Ry. Co., 284 S.W. 894, 897 (Tenn. 1926) (noting in case involving a $1,000 fox hound struck by a train that an action would lie for "[r]eckless or wanton injury" as well as "common-law negligence"); Wheatley v. Harris, 36 Tenn. 468, 1857 WL 2511, at *1 (Tenn. 1857) (stating on the basis of venerable authorities that "there can be no doubt" of a dog owner's property right to "maintain an action for killing or injuring [his] dog"); see also White v. State, 249 S.W.2d 877, 878 (Tenn. 1952) ("It is commonly known that a dog is an animal which man owns as a pet or for substantially valuable uses in many ways, and that many dogs of various breeds are bought and sold for money, frequently for a quite substantial sum."). However, this method of valuation might well render many or most dogs kept as conventional pets almost worthless.

Quite apart from the question of whether (and how) the plaintiffs might jockey for greater damages, a question remains as to whether juries ought to award damages beyond market value for the loss of property like dogs. That is, should society recognize the non-economic value of animals in their capacity as our "companions"? The prospect of juries doing so via an intentional infliction of emotional distress suit (or otherwise) makes me a little nervous. Although I am willing to accord animals greater status and protection than some, I am troubled by attempts to legally anthropomorphize animals to say the least. The plaintiff's morally obtuse representation that Gizmo "was our kid" demeans children, and I balk at the $200,000 being claimed as damages. Yet I am hardpressed to say exactly what I think a fair damage award would be in this case, assuming the elements of an intentional infliction of emotional distress claim are proven up.

Interestingly, dogs' status as private property is actually a substantial improvement over the original common law position. In another dog-meets-train case, the Supreme Court of Tennessee once noted that, "at common law dogs were not considered property, the reason given being that they were base in their nature, and kept merely for whim and pleasure." Cincinnati, N.O. & T.P.R. Co. v. Ford, 202 S.W. 72, 72 (Tenn. 1918); Citizens' Rapid-Transit Co. v. Dew, 45 S.W. 790, 791 (Tenn. 1898) ("It is true that at common law a dog was not considered as property, the reason given being that they were base in their nature and kept merely for whims and pleasures."). Indeed, contra State v. Harrison supra, under the common law it was held that dogs were so intrinsically without value that stealing them could not constitute larceny. State v. Brown, 68 Tenn. 53, 1876 WL 5024, at *1 (Tenn. 1876) (discussing common law and citing Hale and Blackstone). This rule produced the odd result that dead dogs technically enjoyed greater legal protections than live ones. See Dew, 45 S.W.2d at 791 ("The rule of the common law was technical in the extreme, for, while it was not larceny by it to steal a dog while living, it was larceny to steal his hide after he was dead."). Odd as this rule might be, it continued to play some role in Tennessee's jurisprudence well into the twentieth century. See, e.g., Franer v. English, 8 Tenn. App. 121, 1928 WL 2089, at *2-3 (Tenn. Ct. App. 1928).

Posted by Curmudgeonly Clerk at 10:43 PM | Comments (2)

Prisoner Abuse

Prisoner abuse is considered "an affront to the most basic standards of morality and decency"? That's news to me. It is also news to others.

Update: Rich Lowry of National Review has a brief article suggesting that, if we are truly dismayed by the scandal over Abu Ghraib, considerable reform of American prisons is required.

Posted by Curmudgeonly Clerk at 08:18 PM | Comments (0)

Spoils of War

Grim as it may initially appear, this Associated Press story, perhaps, has a silver lining. As reported:

A senior aide of radical Shiite cleric Muqtada al-Sadr told worshippers during a Friday sermon in southern Iraq that anyone capturing a female British soldier can keep her as a slave.

I have no idea what contemporary Islam's stance on slavery might be. (Of course, with al-Sadr et al., it is not clear that we are dealing with "contemporary" muslims at any rate.) But the Qur'an clearly envisages the taking of women as spoils of war, as does the Old Testament. See, e.g., Qur'an 33:50; Judges 21:1-14. As unhappy a fate as that might turn out to be, however, slavery would confer a certain value and status upon female captives. For example, Islam enjoins a master from subjecting his slaves to a life of prostitution, Qur'an 24:33, which might at least theoretically preclude the sort of sexual abuse allegedly inflicted on former P.O.W. Jessica Lynch.

Such a captive could be forcibly taken in marriage by her master. Qur'an 24:32. So enslavement would hardly be paradise. And none of this comports with the Geneva Convention, of course. See Article 14. But slavery might afford female prisoners of war some modest protection during their period of captivity. This is no small thing given that the alleged sexual mistreatment of Iraqi women is among the grievances listed by al-Sadr's aide.

Posted by Curmudgeonly Clerk at 09:41 AM | Comments (1)

May 06, 2004

Berkeley and Speech

Professor Volokh has been discussing a misguided plan to enact a faculty speech code at the U.C. Berkeley Law School. The incipient code is the result of a classroom incident, which was outlined as follows by a student who was present:

The class was, in large part, supposed to be a role-playing sort of class whereby we, acting as attorneys, would have to learn to deal with clients and opposing parties (played by the instructors) while trying to formulate and execute a strategy for dealing with the client's problem. One of the things we had to learn to deal with were crabby, irritable, and imperfect clients. Thus, during one role-playing scenario (in fact, she made the supposedly racist comment while role-playing a negotiation with me in particular), our instructor, acting as the no-nonsense CFO of a small mid-western construction company, commented on the high quality of the company's product by saying that they didn't employ inferior illegal Mexican immigrant labor. That was it.

As usual, Volokh has several sensible things to say about the topic. But what caught my eye was this snippet:

Finally, as I understand it from other sources at the law school, the details of the incident are apparently not being made clear to students (or at least weren't as of yesterday); all that many students know for sure about the incident is what the administration e-mail reported. So if my correspondent is right, the administration's actions portray a law school instructor as being racist even though that isn't so. That's hardly fair to the instructor, whose identity has likely leaked out . . . .

Professor Volokh, perhaps, understates the matter. If the underlying facts are as reported and his surmises are correct as well, the professor in question may have a valid defamation claim. See generally Ringler Assocs., Inc. v. Maryland Cas. Co., 96 Cal. Rptr. 2d 136, 148-50 (Cal. Ct. App. 2000) (discussing elements and general parameters of defamation). Although accusations of racism or portrayals of conduct as being racist in nature appear to be quite difficult to redress via a defamation suit, the apparent mischaracterization of the underlying facts that would support such a claim in this case might render the administration's conduct actionable. Cf. Kimura v. Superior Court, 281 Cal. Rptr. 691, 697-701 (Cal. Ct. App. 1991) (unpublished opinion). At the very least, the law is unsettled enough in this area that one should not engage in conduct that potentially courts litigation. See id. at 699 ("There are other published decisions dealing specifically with the epithet "racist" or related accusations, but they are too few in number to present any definitive 'majority' or 'minority' view as to whether these terms may constitute actionable libel. ").

Posted by Curmudgeonly Clerk at 06:21 AM | Comments (3)

May 04, 2004


Reportedly, I should be salivating over the Google IPO. It supposedly could bring back the tech-sector bubble. But I'm not holding my breath, largely because I am too busy laughing. The enigmatic Isabella notes a curious promise from Google's S-1 Registration Statement:

As a private company, we have concentrated on the long term, and this has served us well. As a public company, we will do the same. In our opinion, outside pressures too often tempt companies to sacrifice long-term opportunities to meet quarterly market expectations. Sometimes this pressure has caused companies to manipulate financial results in order to "make their quarter." In Warren Buffett's words, "We won't 'smooth' quarterly or annual results: If earnings figures are lumpy when they reach headquarters, they will be lumpy when they reach you."

Of course, such practices also appear to be illegal. See, e.g., 17 C.F.R. §§ 229.10, 244.100, 244.101; see also Kramer Levin, Corporate Dept. Update (Jan. 2004) (discussing Sarbanes-Oxley Act). Now I am far from knowledgeable concerning this area of the law (so I could be missing something), but a promise that effectively boils down to "we won't break the law" is not exactly awe-inspiring. I like the Google search engine as much as the next guy, but its supposed corporate ethos—"don't do evil"—seems a tad overstated.

Posted by Curmudgeonly Clerk at 10:05 AM | Comments (4)

May 03, 2004

Marcus Dixon (Update)

The Associated Press has reported that, in a 4-3 decision, the Supreme Court of Georgia has thrown out Marcus Dixon's child molestation conviction:

The state's highest court ruled 18-year-old Marcus Dixon should have been prosecuted just on the lesser charge of misdemeanor statutory rape rather than aggravated child molestation for having sex with a 15-year-old in February 2003.

* * *

Dixon was acquitted on felony rape charges but found guilty of aggravated child molestation, which comes with a mandatory decade-long sentence, as well as statutory rape. Monday's ruling lets the statutory rape conviction, which carries a maximum sentence of one year and a $1,000 fine, stand.

I have not had the opportunity to read the court's opinion, but my familiarity with the case convinces me that the result is the right one. Indeed, as I previously contended, I think that the statutory rape charge in this case was a gross injustice given the circumstances.

(AP link via How Appealing.)

Update: Attorney Rob Becker has this analysis of the decision posted at FOXNews.

Posted by Curmudgeonly Clerk at 10:32 AM | Comments (3)

May 02, 2004

Your Permanent Record

Kiwi Camara, a 3L at Harvard Law School, once created an uproar at HLS by uploading the following shameful characterization of Shelley v. Kraemer, 334 U.S. 1 (1948), to a public HLS outline database:

Nigs buy land w/ no nig covenant; Q: Enforceable?

Camara has an impressive record of success. However, according to Greg Weston, the ensuing brouhaha over his outline has apparently already cost him a permanent position at a firm at which he once clerked, albeit not a prestigious clerkship with a federal judge. If Weston has his way, Camara's conduct will cost him a little more. After all, Weston's weblog entry concerning Camara was penned a couple of days ago—but years after the fact.

From my perspective, what this episode highlights is how missteps in law school can become part of one's "permanent record" so to speak, a record that is broadly accessible due to the Internet. Although Weston says that Camara's conduct resulted in widespread negative publicity, I was unable to find online much of the media coverage to which he alluded. (One Boston Globe story is available via Westlaw's "All News" database.) Weston's weblog entry, however, will ensure that Camara's poor conduct does not quietly go away. Camara's future employers will be a mere Google search away from Weston's information. It's hard to imagine that the communication of such negative information will not eventually become the subject of litigation in some case or another.

(Thanks to Professor Leiter for bringing this story to my attention.)

Update: For those interested in delving further into the details, Greg Weston notes some additional media coverage of the events here.

Posted by Curmudgeonly Clerk at 11:48 AM | Comments (9)