The Volokh Conspiracy

I imagine there must be a substantial literature on whether sometimes, you should boycott a process you feel is illegitimate rather than trying to ameliorate its effects by participating. For instance, should a democratic political party participate in substantially unfree elections, or should one collaborate with an illegitimate regime? I would appreciate pointers to relevant important literature on the subject.

To me, the most disappointing of the many electoral results this Tuesday was the relatively narrow (54–46) defeat of California Proposition 19, the marijuana legalization initiative that I and and many other VCers endorsed. I’m not disappointed because this proves that law professors have little electoral clout. We knew that already. Rather, the disappointment is because Prop 19 was the best opportunity in many years to deal a serious blow to the War on Drugs. Early polls showed that it had a decent chance to win.

At the same time, it is notable that such a broad legalization measure could get 46% of the vote in the nation’s largest state despite the near-uniform opposition of the political establishment in both parties, ranging from President Obama to Governor Schwarzenegger and many others. Such a result would have been almost unthinkable a decade ago.

The CNN exit polls on Proposition 19 contain lots of interesting data. They reveal that the initiative lost in large part because of its weakness among two groups: the elderly and self-identified “conservatives.”

I. The Age Gap.

People over the age of 65 voted against Prop 19 by a 68–32 margin. Had the electorate been limited to people under the age of 50, Proposition 19 would probably have won, albeit narrowly (by about 51–49). But people over the age of 50 formed a whopping 54% of the California electorate, which reflects the much greater of propensity of the elderly to vote and participate in politics. Using the data collected here, I calculated that people age 50 and above are actually only about 37.5% of the voting-age population in the state.

The interesting question about the age gap on this issue is whether it is a cohort effect or a generational effect. In other words, do people start out favoring legalization in their twenties, but turn against it as they age (a cohort effect)? Or are more recent generations generally more favorable to drug legalization, a difference that persists as they age (a generational effect)? My tentative conclusion is that its probably more of a generational effect. This is not just a difference between the very young and the rest. Rather, each successive age group is much more pro-legalization than those older than them. Even 50–64 year olds were 12 points more favorable to Prop 19 than the over-65s. Moreover, much social science data suggests that political attitudes tend to be fairly consistent with age, solidifying for most people when they are in their twenties. Winston Churchill notwithstanding, if you were a socialist at twenty, that implies a high probability you will still be one at forty. In addition, an important recent study suggests that the elderly actually become more socially liberal as they age, not less so.

II. The War on Drugs and Conservatism.

Self-identified conservatives were even more opposed to Prop 19 than the elderly, with 73% voting against. Unlike the generation gap, legalization advocates cannot expect this problem to get better on its own. I don’t expect conservatives to quickly change their views on this issue. Adherents all political ideologies are slow to change longstanding beliefs, and tend to dismiss opposing evidence out of hand, while overvaluing any evidence that supports their preexisting views.

But I hope conservatives will at least consider the following points. First, the case against the War on Drugs and other “morals” regulations is very similar to the standard conservative critique of economic regulation, a point I made in greater detail in this article and here. Indeed, the War on Drugs is one of our biggest examples of economic regulation, since it bans the sale of a product and creates a vast illegal market that stimulates violence and organized crime. It is in fact quite similar to left-wing proposals to ban products such as cigarettes or fatty foods, both of which pose greater health risks than many currently illegal drugs do. Ironically, Proposition 19 was opposed by 67% of those voters who said in the same survey that government is currently doing “too much,” probably because of the large overlap between this group and ideological conservatives.

Second, the War on Drugs severely hampers two cherished conservative goals: winning the War on Terror and promoting family values. Even if you think that drug prohibition is on balance a worthy objective, is it really worth the price of greatly exacerbating the terrorist threat and undercutting the ability of poor African-Americans to form intact families? Few can do so so long as a very high percentage of poor black males are either in prison or cycling in and out of custody, in large part as a result of the War on Drugs.

Every ideology sometimes faces difficult tradeoffs. The War on Drugs poses several particularly important ones for conservatives. Over time, I hope that more conservatives will come to agree with William F. Buckley’s conclusion that “it is outrageous to live in a society whose laws tolerate sending young people to life in prison because they grew, or distributed, a dozen ounces of marijuana.”

The Indianapolis Star reports a major Republican landslide in the Indiana state legislature.  This gives him a strong hand to carry out his budgetary and educational reform proposals over the next two years.  It sure sounds like music to my ears.

If he is running for President, as many suppose, a relatively free hand to carry out the rest of his agenda (assuming it works) could enable him to amass a pretty impressive record to run on.

Three Iowa Supreme Court Justices were tossed as a result of their votes mandating that same-sex couples be allowed to marry.  They are the first Justices who failed to be retained since 1962, when the current system was implemented.

Although I don’t understand the complaint of Drake University Law School Dean Allan Vestal that this was a “misuse” of the right of voters to vote on judicial retention.  Isn’t this exactly what the retention power is intended to do?

In Federalist 51 Madison defined the fundamental challenge of constitutional government: “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”  There is no solution to this, just a tradeoff.  You can increase the independence of elected officials, which makes it easier for the government to control the governed by insulating them from majoritarian and interest-group pressures.  But if you increase independence you run the risk of increased agency costs when the government is unable to control itself–when politicians (including judges) pursue their own self or ideological interest instead of the purposes for which they are given independence in the first place.  And vice-versa: more democratic control will make politicians more responsive to the governed but also reduce the risk of agency costs.

Iowa has set up one system that tries to balance this.  If the voters of Iowa concluded that the Justices of the state Supreme Court abused their power in creating a right to same-sex marriage, and that this represents the Justices reading their own ideological views into the law, then it is entirely appropriate for them to toss some or all of the offending Justices.  That’s not a “misuse” of the retention power; that’s what it is there for.

Whether Iowa has struck a proper balance between independence and accountability, or should balance it in some other way  is a different question.  And whether any other system has struck the balance correctly (whether more or less democratic) is also a separate question.  But having struck the balance in this manner it seems to me that this was an entirely appropriate use of the voters’ recall power–to get rid of judges who the voters believe are misusing their authority to impose their personal views on the law.

In no particular order:

1. What’s the impact of the changing composition of the Senate on the judicial confirmation process? Presumably this means a tougher road ahead for more controversial lower-court nominees, but it’s not clear to me how the details will work out there. If Obama gets another Supreme Court nomination in the next two years, the extra GOP Senate seats really change the calculus: Whereas the Dems previously had the votes to confirm pretty much anyone, a nomination to fill a future Supreme Court vacancy in the next two years would genuinely be in doubt. Putting the pieces together, yesterday’s election results are good news if you’re Merrick Garland but bad news if you’re Goodwin Liu.

2. The award for New Member of the Senate Who Would Be Most Likely To Blog at the Volokh Conspiracy — I know, it’s a very prestigious award — goes to Mike Lee, who was elected to the U.S. Senate from Utah. Mike clerked for Justice Alito, both on the Third Circuit and Supreme Court, and he was both an AUSA and a lawyer at Sidley and later Howrey. (Perhaps he’ll be the first U.S. Senator to guest-blog here?) He also wins the award for First Senator-Elect to Have Argued a Case in My Computer Crime Law Casebook — I know, that award is very prestigious, too — for having argued a commerce clause challenge to the federal child pornography statutes, United States v. Jeronimo-Bautista (see pages 547–52). Come to think of it, I think he will also be the first U.S. Senator who is younger than I am (about 48 hours younger — kids today).

3. Christine O’Donnell did much better than I expected when she received the GOP nomination. O’Donnell only lost to Coons by about 17%, which was a much narrower gap than when she lost to Joe Biden in the 2008 Senate race. It’s interesting to ponder how the dynamic of the Senate would be different if Mike Castle had won the GOP nomination, as he very likely would have trounced Coons. (Castle might have won as a write-in, too, although he opted not to try — appropriately, I think.) But so it goes.

4. The good news for Christine O’Donnell is that her Senate loss probably has made her career. She can now publish a book about her experience that no doubt will be a huge seller, and she can charge some serious speaker fees to speak to conservative groups. She’ll now make more money, and have more fun, than she would have had in the Senate. That’s not a bad outcome.

5. I suppose it’s time to ramp up the press statements about whether this is a mandate for the GOP, with positions reversed from 2008, which in turn were reversed from 2004? Ah, politics.

6. As Nate Silver points out, “Only 460 days to the Iowa caucuses!”

. . . Alexandra Pajak, a grad student at the University of Georgia, has made a recording by assigning different pitches to the different DNA sequences. From the snippets available, it sounds pretty good (especially for such a nasty little micro-organism). And it raises the question: With all of the recent controversy surrounding the patentability of genetic sequences (about which I’ll have a good deal more to say in an upcoming posting), perhaps we’ve been barking up the wrong tree (as it were): DNA sequences are copyrightable “musical works”!!

{UPDATE: My friend Ken Liu tells me that Carl Frederick published a story in Analog back in 2004 called “The Fruitcake Genome” — which contains music made from the genome. You can see the story and actually hear
the music based on the fruitfly genome, “The Little March of the Fruitflies,” here. Ken has also been playing around with some “genome art,” treating each letter of the genome as a direction to move the stylus in. Some examples can be seen here}

Though faithful readers of the VC will realize that my fondest wishes will come true only when someone explains how my book (on Thomas Jefferson and the Internet) really explains the world of soccer, I’m pretty happy with the connections Samir Chopra draws, over at ESPN, with the world of cricket . . .

In his victory speech last night, Senator-elect Marco Rubio said:

We make a great mistake if we believe that tonight these results are somehow an embrace of the Republican party.  What they are is a second chance, a second chance for Republicans to be what they said they were going to be not so long ago.

Rubio’s right, but I fear many Republicans won’t view yesterday’s results this way.

Josh Blackman has posted some fascinating excerpts from the oral argument in Schwarzenegger v. EMA, the violent video games case. I’ll leave the analytical heavy lifting to our resident free speech experts, such as Eugene. My own view (uncharacteristically in line with conventional wisdom) is that the state government should lose this case and probably will.

On a lighter note, I can’t resist noting the role of Vulcans in a question by Justice Sotomayor:

JUSTICE SOTOMAYOR: Would a video game that portrayed a Vulcan as opposed to a human being, being maimed and tortured, would that be covered by the act?

Perhaps California’s lawyer could have argued that video game portrayals of torture of Vulcans are distinguishable from those that depict torture of humans on the grounds that Vulcans have much stronger constitutions and higher pain thresholds. To the extent that Trekkie video game players recognize this, they would be less likely to be inspired to engage in real-word torture of humans as a result of playing the game.

Even before the election ended, some liberals argued that public ignorance explains the big Republican victories that just occurred. There is, I think, some truth to that contention. For example, a recent Bloomberg poll shows that 52% of voters thought that “middle class” federal income taxes have gone up in the last two years, even though they have actually gone down. The same survey also found that 61% believe that the economy has shrunk during the past year, even though it has actually grown slightly. I doubt that the Democrats would have avoided significant losses if the majority of the public had accurate information on these two points, but those losses might well have been smaller.

I. Ignorance Cut Both Ways.

On the other hand, there are probably areas where voter ignorance helped the Democrats in this election. For example, research by economist Bryan Caplan shows that most voters have a strong “antiforeign bias” that leads them to greatly overestimate the dangers of foreign influence, trade, and investment, while ignoring most of its benefits. This may have led voters to be more receptive to dubious Democratic charges that the Republicans were using “foreign money” in the election, and to union claims that we need protectionism to save American jobs. Most voters are also unaware of the extensive role of prominent congressional Democrats such as Barney Frank in supporting mortgage lending policies that helped cause the housing bust and financial crisis.

There are also cases of ignorance that didn’t clearly help one party or another, but are still lamentable. For example, even in his home state of Ohio, 42% of voters say they don’t know enough about soon-to-be Speaker of the House John Boehner to have an opinion about him (this figure probably understates the true degree of ignorance, since many poll respondents don’t like to admit ignorance to pollsters). This mirrors public ignorance about Nancy Pelosi right before she became speaker in 2006.

II. Why Ignorance Probably Helped the Republicans on Net.

That said, the net effect of ignorance in this election probably worked to the advantage of the Republicans this year, for much the same reasons as it helped the Democrats in 2008. This year, as in most elections, the vast majority of voters cited “the economy” or “jobs” as the most important issue. Historical data strongly suggests that voters punish incumbents for bad economic conditions regardless of whether the incumbents actually caused the problem or made it worse than it would have been otherwise. As political scientist Larry Bartels explains, this is a very consistent pattern in American history. Indeed, Bartels and Christopher Achen show that voters tend to focus primarily on short term trends while largely ignoring long term ones and failing to consider the possible longterm future impact of present policies.

In this case, the voters probably held Obama and the Democrats responsible for current conditions despite the fact that they only partly caused them and that even optimal policies over the last two years would not have come close to ending the recession by this point. In my view, the Democrats’ policies did more to make things worse than better, though I recognize that there are serious contrary arguments. But even those economists who believe as I do would probably concede that there was no way to quickly end the recession.

The Obama argument, essentially, is that things would be even worse were it not for his policies. That argument may be wrong. But it is striking that voters have rejected the same claim during virtually every recession for the last 60 years, no matter what the policies followed by incumbents. It didn’t work for the Democrats in 1938, 1952, 1968, and 1980, among other cases. And it didn’t work for the Republicans in 1976, 1982, 1992, or 2008. It seems unlikely that every incumbent party that presided over a recession pursued worse policies than its opponents would have in their place. At the very least, therefore, political ignorance probably increased the magnitude of the Republican victory this year, just as it aided the Democrats in the last election.

The Democrats also adopted some other unpopular policies, such as their health care bill. But it seems clear that they would still have avoided major setbacks had the economy shown significant improvement over the last year. A recent Gallup survey found that some 58% of Americans saw the economy or jobs as the most important issue this year, while only about 7% cited health care. Moreover, the popularity the Democrats would have derived from improving economic conditions might well have spilled over to boost the ratings of their other policies, as sometimes happened for incumbents during previous economic upturns.

III. The Broader Impact of Ignorance.

The real impact of political ignorance, however, goes beyond its effect on voter decisions between the two parties as they now stand. With a much more knowledgeable electorate, the parties would probably have adopted different platforms and possibly nominated some different candidates as well. Controlling for other variables, increases in political knowledge lead voters to be more supportive of spending cuts, deregulation, and tax increases. More knowledgeable voters are also less vulnerable to deception and internally contradictory arguments.

With a much more knowledgeable electorate this year, the Republicans would have been less likely to pretend that we can greatly cut government spending and balance the budget without touching entitlement programs or raising taxes on anyone. And they would not be making the nonsensical argument that “government should keep its hands off my Medicare.” The Democrats, for their part, might not have pretended that we can adopt massive spending increases on health care and other areas, leave entitlements largely untouched, and avoid fiscal crisis without raising taxes on anyone but “the rich.” Voters in both parties would understand that unconstrained entitlement spending is a major cause of our looming fiscal crisis. The resulting party platforms would still be far less libertarian than I would personally prefer. But I think they would have been a considerable improvement over what we actually got.

UPDATE: CNN exit polls show that 62% of voters thought that the economy was the most important issue facing the country, and 53% of this group voted for Republican House candidates (44% picked the Dems). By contrast, only 18% said that health care was the most important issue, and 53% of them actually voted for the Democrats. This further reinforces my argument that the election turned primarily on the state of the economy, and that the health care bill, despite its unpopularity, was only a minor factor in the Democratic defeat.

Not all the electoral returns are in yet. But one outcome is very clear: The Republicans have taken control of the House of Representatives, and therefore we will get a return of divided government. I advocated divided government in 2006 (when its return forced Bush to curb some of his excesses and adopt a more rational policy on Iraq), and 2008 (when its loss eventually resulted in the massive expansion of government that I feared). I think my reasons also hold good this year: divided government tends to restrain the growth of the state, and that when the two parties share power, they curb some of each other’s abuses.

I should also note that nearly all of the major government-restraining legislation of the the last thirty years (e.g. — the 1981 and 1986 tax reforms, the 1996 welfare reform, the deregulations and spending restrictions of the late 1990s) were passed under divided government, whereas nearly all the major expansions of government during that period (e.g. — Bush’s massive prescription drug bill, Obama’s stimulus and health care bills) were enacted under united control (the TARP bailout in late 2008 is the one big exception). This is probably not an accident and is consistent with historical experience. I’m not exactly optimistic about what either Obama or the new Republican House majority will do. But I do think that prospects for limiting government are far better today than they were just a few months ago. And the return of divided government is a crucial reason why. At the very least, we are unlikely to see any massive new government programs enacted, as happened under both united Republican control in the Bush era and united Democratic control under Obama.

The good news is that the Democrats lost the House.

The bad news is that the Republicans won it.

I’ll focus on the good news for now, because it will be portrayed as a victory for a small government agenda (thought I wonder how many seats turned because of senior anger over Medicare cuts). But I’m sure the bad news will kick in soon enough.

Your thoughts?

Senate: +6

House: +18.75

Governors: +.5

Constitutions: +4

Hawaii Gov. Dem. Abercrombie wins open seat, vacated by Linda Lingle. –75.

Undecided Governor races: Connecticut (potential +1), Repub. Foley leads by 3%, with 87% in. Florida (potential –1), Repub. Sink leads by 1% with 99% in. Minnesota open seat (potential –1), Mark Dayton leads by 1% with 90% in. Oregon (potential +1), Repub. Dudley leads by 2% with 81% in.

Undecided Senate races: Washington (potential +1), Murray (D, F) leads by 1% with 60% in. Colorado (potential +.5), Bennet (D, C) trails by 1% with 77% in. Alaska, Murkowski leading, with 51% in; all candidates are A-rated, but Republican Miller would probably be a more energetic activist.

Ill. Gov. Anti-gun incumbent Quinn hanging on, with 99% counted. Will make passage of licensed carry difficult.

Colorado State House of Representatives: Repubs. take control. So re-districting will be bi-partisan. Bad news for U.S. Rep. Ed Perlmutter (D, F), who needs a carefully-drawn district to win in 2012.

From Ben Smith @ Politico: Repubs. now fully control redistricting in Ind., Penn., Ohio, Ala., Mich, Wisc.  My view: RKBA effects unclear, because all those state have lots of strongly pro-2d Amendment Dems. But probably a net plus for RKBA.

Wash. 2. John Koster (R, A) unseats Rick Larsen (D, B-).

Big race on the cusp. Less than 8,000 votes separate Illinois Gov. candidates, with 97% in. If Republican Brady wins, Illinois will get concealed carry.

Ariz. right to hunt and fish: Nearly 90% of precincts in. Losing by 13%. I project defeat.

Minn. 8. Chip Cravaack (A, R) unseats long-term incumbent Jim Oberstar (D, B+). +.25

Conn. Gov. retraction: With 81% of precincts reporting, Republican Tom Foley leads Dem. Dan Malloy by 3%. Possible pro-gun pickup.

Colo. Atty. Gen. Repub. John Suthers re-elected. Fends off challenger who attacked him for filing amicus briefs  against gun control and health control.

Ohio Atty. Gen. Former U.S. Sen. Repub. Mike DeWine wins. Setback for 2d Amendment.

Ariz. 5. David Schweikart (R, A) beats incumbent Harry Mitchell (R, C-). +.5

Mich. 7. Tim Walburg (R, A) ousts Mark Schauer (R, B-).  +.25.

N.Y. 19. Nan Hayworth (R, A) defeats incumbent John Hall (D, F). +1

N.Y. 13. Mike McMahon (D, F) ousted by Mike Grimm (R, A). +1

The official name of R.I. is the “State of Rhode Island and Providence Plantations.” Voters defeated a proposal to remove the second half of the name. As Brunonian, I am delighted.

N.H. 2. Charlie Bass (R, A) wins open seat vacated by Paul Hode (D, A-).

R.I. Gov. Independent Lincoln Chafee wins open seat. –1

Wash. 3. Open seat of retiring Brian Baird (B in 2008). Won by Jaime Herrera (R, A). +.25 

Nev. Senate: Reid wins. Given a Democratic Senate, very good new for gun owners. Without Reid, the Majority Leader would have been Charles Schumer or Richard Durbin, either of them would be the first Majority Leader who was not only anti-gun, but strongly motivated and well-informed on the issue. Presuming that Reid is re-elected as Majority Leader, this means that both houses of Congress will have pro-gun leadership.

Ill. Sen. Mark Kirk (R, F) wins. Sponsored an “assault weapons” ban in the current Congress. Will be only strongly anti-gun Senator in GOP caucus. At least he’s a staunch critic of United Nations malfeasance.

Right to hunt and fish trailing in Arizona, 56–44. One million votes counted so far.

Ohio Gov. John Kasich (R, B) ousts Ted Strickland (D, A+). Kasich voted wrong on the “assault weapon” ban in 1994, now claims to have seen the light. -.25

Ark. 2. Tim Griffin (R, A) takes open seat vacated by Vic Snyder (D, F in 2008). +15.25 

 Ohio 15. Steve Stivers (R, A) takes the seat from Mary Jo Kilroy (D, F). +1

 Ohio 1. Steve Chabot (R, A) ousts Steve Driehaus (D, D). +1

 Kan. 3. Dennis Moore (D, F in 2008) is retiring. His wife, Stephene Moore (?) was defeated by Kevin Yoder (R, A). +1

 Conn. Gov. Dan Malloy (D, F) wins. Replaces term-limited Jodi Rell (R, F).

Penn. Senate. Pat Toomey (R, A) wins. Replaces inconsistent Arlen Specter. +.5

Great idea now circulating on Twitter: Replace Eric Holder with Russ Feingold.

Mo. 4. House Armed Services Chair Ike Skelton (D, A) defeated by Vicky Jo Hartzler (R, A).

Fla. 8. Allen West (R, A) unseats Ron Klein (D, F). +1

 N.C. 2. Incumbent Bob Etheridge (D, D) narrowly beaten by Renee Ellmers (R, A). +1

 Cal. Gov. Jerry Brown (D, D+) defeats Meg Whitman (R, C+). No net change from outgoing Gov. Schwarznegger.

Ill. 14. Randy Hultgren (R, A-) vs. unseates Bill Foster (D, D). +1.

 Penn. 8: Repub. Mike Fitzpatrick (R, A) ousts Patrick Murphy (D+). Congratulations to the Snowflakes team! +1

 S.C. 5: House Budget Chairman John Spratt (D, D) defeated by Mick Mulvaney (R, A). Good for 2d Amendment, and the public fisc. +1

Ill. 17. Bobby Schilling (R, A) takes the seat from Phil Hare (D, F). +1

Louisiana. Joseph Cao (R, C) unseated by Cedric Richmond (D, F). First net loss of the evening. -.5

Republicans take State House of Representives in Pennsylvania. Good news for RKBA.

South Carolina and Arkansas Constitutions: Right to hunt and fish amendments have been declared winners. Still awaiting results from similar amendment in Arizona.

Penn. 7. Joe Sestak’s open seat is taken by Pat Meehan (R, A). +1

Kansas Constitution: “Shall the state amend its Constitution to include an individual right to bear arms?” With 19% of precincts reporting, the question leads 87% to 13%. I project that it will win.

Wisc. Sen.  Ron Johnson (R, A) unseats Russ Feingold (D, C). Feingold has been a great leader on many civil liberties issues. I hope he finds a way to stay on the national scene. +.5

N.J. 3. Jon Runyan (R, A) unseats John Adler (D, D). +1

Wisc. Gov. Scott Walker (R, A) wins open seat. Very important. Means that Wisconsin has a very good chance of enacting licensed carry next year.

Penn. 3. Kathy Dahlkemper (D, C) unseated by Mike Kelly (R, A). +.5

Tennessee Constitution. With over half the precincts in, the right to hunt and fish amendment to the state constitution is leading 90% to 10%. I hereby declare it a winner.

Penn. Gov. Tom Corbett (R, A) wins, replacing the retiring Ed Rendell. +1 

N.H. 1. Frank Guinta (R, A) unseats Carol Shea-Porter (D, F).

Mass. Gov. Deval Patrick re-elected. Unfortunate.

Kan. Gov. Sam Brownback (R, A) wins. Replaces the Lt. Gov. who succeeded Sebelius and who did not run. +5.

Fla. 2. Alan Southerland (R, A) beats incumbent Alan Boyd (D, D).

N.D. Sen. John Hoeven (R, A) takes seat held by retiring Byron Dorgan (D, D+). +1

Mich. Gov. Rick Snyder (R, refused to answer NRA questionaire) defeats F-rated Dem.

Tenn. Gov. Mike Haslam (R, B-) defeats Mike McWherter (D, C-).

Ark. Gov. Incumbent Mike Beebe (D, A-) beats Jim Keet (R, B+).

Fla. 8. Daniel Webster (R, A) defeats Alan Grayson (D, B). +.25.

W.V. Sen. Manchin (D, A) wins. Takes the seat of the late Robert Byrd. +1

Conn. Sen. Blumenthal (D, F) wins, replacing Chris Dodd. Will be even more of an anti-gun leader.

Ark. Sen. Boozman (R, A) defeats Blanche Lincoln (D, D+). +1.

Fla. 24. Suzanne Kosmas (D, F-rated) loses. +1.

N.H. Gov. Lynch (Dem, C-rated by NRA) re-elected.

Fla. Rubio (R) win. Keeps seat pro-gun.

Missouri. Blunt (R) defeats Carnahan. Keeps seat in pro-gun hands.

N.H. Ayotte (R) wins. Improvement over retiring Judd Gregg (R). +.5

Ohio: Portman (R) defeats former Handgun Control, Inc., board member Lee Fisher. Will replace usually-anti George Voinovich. +1

Kentucky: Rand Paul wins. Replaces retiring Jim Bunning. Will probably be more of a leader on the issue than Bunning was.

Indiana. Dan Coats (R) wins. When previously in the Senate, was sometimes good, but not always. Dem. Brad Ellsworth would have been better. Retiring Sen. Evan Bayh was always bad. +5.

Vermont. Pat Leahy (D) re-elected. Much better to have him as chair or ranking member of Judiciary than Herb Kohl.

Richmond Times-Dispatch columnist Barton Hinkle has a column surveying speech codes at Virginia public universities {HT: co-blogger Todd Zywicki]. It turns out that George Mason University may have the worst of a bad lot:

Free speech is one of those values to which everyone gives lip service. Nearly no one considers himself pro-censorship. Yet as FIRE has exhaustively documented, institutions of higher learning — which ought to welcome freewheeling intellectual debate — often are among the most censorious and oppressive places in America. And unfortunately, a few of the worst offenders are right here in Virginia....

Virginia Tech.... continues to flirt with totalitarian impulses. Witness the attempt earlier this year to shut down the student newspaper because of anonymous comments posted on its website....

Yet when it comes to Orwellian regulation of thoughtcrime, Tech remains a rank amateur next to George Mason University. GMU maintains a speech code that prohibits “any form of bigotry . . . . whether verbal, written, psychological, direct, or implied....”

GMU also insists that students get permission before chalking a message on a sidewalk. What’s more: “The sale, distribution, or solicitation of any . . . newspaper by GMU and non-GMU organizations and individuals is subject to prior authorization.” Taken together, such policies give GMU officials a blank slate to control what members of the university community can say and hear on campus.

This, mind you, at a school named after a man who is called “The Father of the Bill of Rights....”

UVa has taken the right step by relaxing its speech codes. It’s time for the rest of Virginia’s public colleges to do the same.

I would make two points about GMU’s speech code. First, like many such codes, it isn’t enforced very aggressively. In practice, both students and faculty often make public remarks that violate the code, yet escape punishment. Campus life would grind to a halt if the university seriously attempted to crack down on every instance of “implied” or “psychological” “bigotry.” Second, the code was instituted by the central administration, not the Law School. If it were up to the law school faculty, I have no doubt we would vote overwhelmingly to abolish the code. It is also unlikely that GMU’s extremely vague and broad speech restrictions would survive judicial scrutiny.

That said, Hinkle is absolutely right to point out the egregious flaws in the GMU code and to urge George Mason and other schools to repeal their codes without waiting for a legal challenge to arise. It shouldn’t take a lawsuit to force universities to uphold freedom of speech. And the case of UVA shows that repeal is not politically impossible, and won’t draw a massive political backlash.

Quintessential Justice Scalia, from the oral argument in the First Amendment violent video games case:

JUSTICE GINSBURG: Is there — you’ve been asked questions about the vagueness of this and the problem for the seller to know what’s good and what’s bad. California — does California have any kind of an advisory opinion, an office that will view these videos and say, yes, this belongs in this, what did you call it, deviant violence, and this one is just violent but not deviant? Is there — is there any kind of opinion that the — that the seller can get to know which games can be sold to minors and which ones can’t?

MR. MORAZZINI: Not that I’m aware of, Justice Ginsburg.

JUSTICE SCALIA: You should consider creating such a one. You might call it the California office of censorship. It would judge each of these videos one by one. That would be very nice.

UPDATE: I forgot to mention, just for the sake of full disclosure, that my Mayer Brown LLP colleagues and I cowrote an amicus brief in this case.

In a recent post and a forthcoming National Review article, co-blogger Todd Zywicki argues that repealing the Seventeenth Amendment would be an important step towards protecting federalism and limiting federal power. Todd is one of the leading academic experts on the Seventeenth Amendment. But I respectfully disagree with him on this point. I outlined my objections in this post:

Many conservatives and libertarians believe that the 1913 adoption of the Seventeenth Amendment... was a great mistake that led to a vast expansion of federal power.... The assumption underlying this claim is that senators elected by state legislatures would be more interested in protecting state autonomy than senators elected by voters, and therefore more committed to limiting federal power.

Unfortunately, these Seventeenth Amendment critics are wrong. The Seventeenth Amendment actually had little if any effect on the scope of federal power because most senators would have been popularly elected even without it. Moreover, there is no reason to expect senators elected by state legislatures to be more opposed to federal power than popularly elected senators are.

I also disagree with Todd’s claim that the Supreme Court did little or nothing to restrict federal power prior to the enactment of the Seventeenth Amendment. The Court did in fact enforce fairly substantial limits on Congress’ powers under the Commerce Clause and Tax Clause in cases such as E.C. Knight and Pollock. Such judicial review of federalism issues was clearly contemplated by the framers of the Constitution. For example, in Federalist 39, James Madison wrote that “in controversies relating to the boundary between the two jurisdictions [federal and state], the tribunal which is ultimately to decide, is to be established under the general government,” clearly referring to the Supreme Court. He notes that the Court must decide such cases “impartially..., according to the rules of the Constitution,” and that such review will help ensure adherence to the constitutional principle that federal “jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.”

Finally, I am skeptical of claims that state legislative selection of senators was the main force constraining federal power before the Seventeenth Amendment was enacted in 1913. Limits on federal power were underpinned by a much broader political consensus that often included the House of Representatives, and such presidents as Thomas Jefferson, Andrew Jackson, and Grover Cleveland. In fact, it is far from clear that the 19th century Senate was on average more supportive of limits on federal power than the House of Representatives, the White House, and the Supreme Court. To the extent that it was, the cause might well have been the overrpresentation of the South rather than the lack of direct popular election.

In sum, the selection of senators by state legislators was not the only or even the principal structural protection for federalism under the original Constitution, or during the 125 years from 1787 to 1913. Repealing the 17th Amendment today probably would do little to buttress limits on federal power.

Tags: 17th Amendment

A lot of ink has been spilled over the years about how much the Free Exercise Clause should keep courts from addressing employment disputes between houses of worship and clergy. Because such employment disputes frequently hinge on matters implicating faith, courts are often loathe to become involved. Such concerns arise most obviously when a house of worship terminates clergy because of disagreements over theological issues.

But some courts have declined to entertain a suit even where a discharged member of the clergy sues the former employer for defamation arising from statements related to the employment dispute. The Virginia Supreme Court wrote in 2001 that “most courts that have considered the question whether the Free Exercise Clause divests a civil court of subject matter jurisdiction to consider a pastor’s defamation claims against a church and its officials have answered that question in the affirmative.” It continued:

plaintiff’s allegations of defamation against the individual defendants cannot be considered in isolation, separate and apart from the church’s decision to terminate his employment. * * * [I]f a civil court were to exercise jurisdiction [over] the plaintiff’s [lawsuit] under these circumstances, the court would be compelled to consider the church’s doctrine and beliefs because such matters would undoubtedly affect the plaintiff’s fitness to perform pastoral duties and whether the plaintiff had been prejudiced in his profession. Neither the Free Exercise nor [the] Constitution of Virginia permits a civil court to undertake such a role.

Cha v. Korean Presbyterian Church of Washington, 553 S.E.2d 511, 516–517 (Va. 2001), cert. denied, 535 U.S. 1035 (2002); see also, e.g., Thibodeau v. Am. Baptist Churches, 994 A.2d 212, 222 (Conn. App. 2010) (“The plaintiff’s defamation count * * * would require an impermissible inquiry into the defendant’s bases for its action and its ground for evaluating ministers.”); Heard v. Johnson, 810 A.2d 871, 883 (D.C. 2002) (under “most circumstances, defamation is one of those common law claims that is not compelling enough to overcome First Amendment protection surrounding a church’s choice of pastoral leader”).

Cooke v. Tubra, 10–559, petition filed October 22, involves a dispute between the International Church of the Foursquare Gospel and the former interim pastor of the Vernonia, Oregon, congregation of the church, Tim Tubra. (Yes, that Vernonia.) After a rocky start, the church fired Tubra after a dispute over the propriety of a $3,000 withdrawal he made from church funds. The church then read a letter to the congregation saying that “it is now evident that there has been, to some extent, a financial misappropriation by [the] former pastor,” and one church employee emailed another that Tubra had “demonstrated a willingness to lie.” Tubra sued the church for defamation, and a state court jury awarded him damages. The trial court granted the church’s motion for judgment notwithstanding the verdict on the grounds that the First Amendment “operated to deprive the court of jurisdiction over the defamation claim.”

The Oregon Court of Appeals reversed and remanded, holding that the First Amendment is not necessarily a bar “[i]f * * * the statements * * * do not concern the religious beliefs and practices of the religious organization, or are made for a nonreligious purpose.” Here, “the alleged defamatory statements—that the pastor had misappropriated money and had demonstrated a willingness to lie—would not ‘always and in every context’ be religious in nature.” Tubra v. Cooke, 225 P.2d 862, 873 (Ore. App. 2010). The Oregon Supreme Court summarily denied review. 225 P.2d 221 (Ore. 2010).

The case presents some interesting issues. The particular statements at issue are not overtly religious (although the letter in question does begin, “Greetings in the powerful and unchanging name of Jesus Christ”), but many courts, including the Cha and Heard courts, have explicitly said that does not matter, because they have concluded that the Free Exercise Clause prohibits them from becoming involved in disputes involving church discipline and statements made among church members. Because the last opinion in this case was from a state’s intermediate appellate court, this case may fly under many people’s radar. The brief in opposition is currently due Nov. 29.

For a short article on the case from the ABA Journal, check out this:

(A nonlawyer friend of mine is involved in the case, but I have no interest in it other than as a Supreme Court nerd.)

I’ll be providing them here tonight, once the polls close, and results start coming in. I’ll also be doing updates via Twitter, @davekopel.

Besides the candidate races, there are five important ballot issues. Kansas will be voting on whether to restore the individual right to keep and bear arms to state constitution, undoing the judicial nullification in Salina v. Blaksley (1905). Arizona, Arkansas, South Carolina, and Tennessee will decide whether to give explicit constitutional protection to the right to hunt and fish.

The Washington Examiner has this useful guide to some of the key races, organized by when the polls close. Some early races to watch, all of them with poll closings at 7 pm. eastern time:

Peninsular Florida, eastern time zone: 22d district (incumb. Dem. Ron Klein) and 24th (incumbent Dem. Suzanne Kosmos), both terrible on gun rights, and both facing pro-gun opponents. 8th District, where incumb. Dem. Alan Grayson has a B rating from the NRA, but his opponent Daniel Webster has an A (and Grayson’s outrageous incivility provides a non-ideological reason to hope for his defeat).

Indiana, central time zone (polls close at 6 p.m. locally). Open seat, with Dem. Brad Ellsworth (perfect record on Second Amendment) vs. Repub. Dan Coats (uneven record). Either would be superior to retiring Evan Bayh, and Coats has a huge lead in the polls.

South Carolina. 5th District, House Budget Chairman John Spratt. By far the most senior and powerful anti-gun congressman who is at serious risk, among the early poll closings.

Virginia, 11th Dist. Incumbent Dem. Gerry Connolly appears to have a tighter race than expected. Michael Bloomberg has been spending heavily on Connolly’s behalf recently. Conventional wisdom says that Connolly survives a wave, but not a tsunami.

Further information on the gun issue in the 2010 election is available in my guides to the House races and the Senate races.

Several commenters on my post that I have a new article on the 17th Amendment in National Review argued that rather than repealing the 17th Amendment they instead would prefer more vigorous enforcement of the Commerce Clause and 10th Amendments, which would (they presumably would argue) bring about many of the same benefits without offsetting costs.  This is certainly a reasonable position and actually raises some interesting issues in its own right.

First, I don’t think this would accomplish the ends of constitutional design as effectively as repealing the 17th Amendment.  One of the arguments I emphasize in the article is that for the Framers the importance of indirect election of the Senate was to further the system of bicameralism (and thereby to frustrate rent-seeking) as much as it was to promote federalism.  (None of my critics in the comments addressed this argument although they must be fast readers though because they had apparently already read the article and were criticizing my argument within minutes of my post.)  The other proposals for increased judicial review would potentially protect federalism but would do nothing about strengthening bicameralism as a check on rent-seeking.

Second, with respect federalism, there is embedded in this argument a more important point.  As I read The Federalist and other debates of the time, what jumps out at me is that the Framers believed that appointment of Senators by state legislatures would be both a necessary and sufficient condition for the preservation of federalism.  So the basic idea seems to be that it was not thought necessary to create other formal mechanisms for the protection of federalism.  So they did not build in a lot of other supports for federalism because they did not think it necessary.  And, in fact, the original Senate did seem to produce this result.

This meant two things.

First, during the 19th century there was rarely a need for the judiciary to intervene to police overreach by the federal government, such as an aggressive assertion of the Commerce clause by Congress.  Why?  Because legislation that would stretch the reach of the Commerce clause simply was not enacted in the first place.  This also meant that when Congress did in fact start stretching the Commerce clause to the breaking point during the New Deal, the Supreme Court lacked a robust and coherent Commerce clause doctrine that could police the boundaries on the federal government.  For the first century and a half of the Constitution the Supreme Court didn’t really need to be the business of policing limits on the federal government because those limits were rarely tested.

Second, to my mind, the enactment of the 17th Amendment does mean that it becomes more important for the courts to be more aggressive position in exercising judicial review of federal powers, such as the Commerce clause and the 10th Amendment.  Let me explain.

As I read the history of the 17th Amendment, its supporters simply intended to replace the old system of election with a new system.  They did not intend to repudiate the constitutional principle of federalism in the process.  So that what they intended to do was to preserve federalism as a constitutional principle but simply change the method of Senate selection.  The problem is that state legislative election of Senators was the only real structural support for federalism in the Constitution.  So once that pillar was knocked out we were left with the continuation of the constitutional value of federalism but without any good structural support for that value.

Which implies to me that if federalism is still a constitutional value but the structural means of enforcement has been eliminated, then it is appropriate (and perhaps necessary) for the judiciary to increase its role in policing the federalism boundary, such as by more vigorous enforcement of the 10th Amendment and Commerce clause.  I noted that a contrary argument would be that the 17th Amendment was intended to kill federalism as a constitutional value.  I don’t read the debates that way.  My sense is that the death of federalism was an unintended consequence of the 17th Amendment, not an intended result.

I believe that judicial review under the 10th Amendment or Commerce clause would be useful to try to restore federalism as a constitutional value (as opposed to a mere political expediency as it is today).  But I don’t think it would be as effective as repealing the 17th Amendment in providing a structural protection for federalism as a constitutional value.  The original structure of the Senate provided an ex ante protection against “mischievous” legislation by placing the federal-state balance at the heart of prudential questions.  This would be replaced with an ex post system of judicial review.  It would also take what was a combined prudential/constitutional question and make it entirely constitutional.  Thus judicial review while it would provide a useful backstop, I think that it would draw the line on the federal-state balance in a different (and less desirable from a perspective of competitive federalism) place from where it would emerge from the give-and-take of the legislative process.

Finally, there is an argument that democracy is a sort of one-way ratchet, and that once selection of a political office is made democratic there is no going back, so that the whole argument is Quixotic.  That is a strong argument and it is, in fact, difficult to see how we repeal the 17th Amendment.  But I’m not persuaded that this renders the argument moot.

First, the 18th Amendment was repealed by the 21st Amendment, so it is not unprecedented to argue for the repeal of an amendment.

Second, it is not the case that citizens cannot be persuaded to move from democratic to less-democratic means of political selection.  For example, today Nevada voters will choose whether to replace democratic election of judges with what is often called a “merit-selection” regime.  Nevada voters might vote it down but it illustrates the proposition that it is entirely plausible to ask voters to reconsider democratic election of political actors.  Nor is the tide of democracy inevitable–although many states have some sort of popular election of judges, there was never a serious effort to amend the Constitution to provide for democratic election of federal judges.  Indeed, as I note in my article, it remains puzzling to me that many of those who express the greatest shock at proposals to reinstate indirect election of Senators are often those who are also most strenuously attached to the much more anti-democratic process of appointment of federal judges.  They seem to understand that the real question is not whether an institution is more or less democratic but rather which method of selection will best equip that body to fulfill its functions within the constitutional scheme.

The bottom line question is what system of selection of political officers will best further the goals of the Constitution.  I happen to think that the original framework was a pretty good balance of creating a republican government that would tame agency costs by political actors, preserve individual liberty, and frustrate special interest rent-seeking.  Non-democratic appointment of judges with shared authority between the President and the Senate, direct election of House members, state election of Senators, and the elaborate state-based architecture of the Electoral College* strikes me as an ingenious and well-balanced system.  These are all the “auxiliary precautions” that Madison touts in federalist 51 as providing the bulwarks of the constitutional republic.

*Although I do think that the version of the Electoral College as it has evolved of essentially state-by-state popular election of Electors is probably an improvement over the original scheme, although I think there is some systemic value in preserving the basic anti-democratic structure of the state-based Electoral College rather than a national popular vote.  But I haven’t thought about this particular  issue closely enough to have a definitive opinion.

The post below from Conspirator Ilya on speed traps rang a bell with me because I managed to get my first speeding ticket in fifteen years two weeks ago, driving in Virginia.  Madison County, to be exact, at 6:30 am on a weekday, driving on Highway 29 between DC and Charlottesville.  I’ll be a visiting professor in the spring at UVA law school, and I wanted, um, a sense of how fast I could commute once a week.

Let me be the first to admit that I was speeding.  Quite a lot.  I think I was probably going about 80 in a 60 zone.  The officer was very nice and — this is the part that I noted — essentially wrote down the ticket from the 80 that I was doing down to 69.  This saved me some surcharges that would have kicked in over 70.  But I was struck mostly by the psychology of the write-down — in effect, I felt good that I was getting a “sale” price for my speeding ticket and felt much, much better about it than I otherwise would have.  Hard to prove, but I distinctly “felt” like I was getting a bargain apart from the tangible write-down.  But this was shortlived, because when I went online to pay, I discovered that the 9 miles over times $6 per mile was augmented by “fees” and “costs” that brought the ticket up to $115.  The experience has had the intended (I think it is intended) deterrent effect on my driving on 29.

Second, and entirely unrelated to this, on a serious note in response to the Keynsian post below Conspirator Todd, check out the short academic essay by Harvard’s Jeffrey Miron in the new and very interesting issue of the Harvard Journal of Law and Public Policy, “The Case Against the Fiscal Stimulus.” Good brief case on the arguments against the stimulus — not necessarily all stimulus, but at a minimum against this one.  If someone knew of a link to an article that is the same thing on the other side of this issue (i.e., short, academic policy without being overly technical, pitched at roughly this level of sophistication, and making a case without ignoring the other side, I’d be grateful; it would nice to have them side by side).

Third, John Coates, an leading corporate law scholar and old friend on the faculty at Harvard Law School, has a new argument up that is a new twist on the Citizens United case — is it actually good for shareholders?  The paper is up at SSRN, “Corporate Governance and Corporate Political Activity: What Effect Will Citizens United Have on Shareholder Wealth?” I work in some of John’s areas of research, but this one is not one I’m competent to comment on, though I thought it a very interesting read. Here is the abstract:

In Citizens United, the Supreme Court relaxed the ability of corporations to spend money on elections, rejecting a shareholder-protection rationale for restrictions on spending. Little research has focused on the relationship between corporate governance – shareholder rights and power – and corporate political activity. This paper explores that relationship in the S&P 500 to predict the effect of Citizens United on shareholder wealth. The paper finds that in the period 1998–2004 shareholder-friendly governance was consistently and strongly negatively related to observable political activity before and after controlling for established correlates of that activity, even in a firm fixed effects model. Political activity, in turn, is strongly negatively correlated with firm value. These findings – together with the likelihood that unobservable political activity is even more harmful to shareholder interests – imply that laws that replace the shareholder protections removed by Citizens United would be valuable to shareholders.

Fourth, Duke University Law School’s Steven L. Schwarcz and UCLA Law School’s Iman Anabtawi have a new article out, Regulating Systemic Risk, that seeks to give an account of how systemic risk propagates itself through the financial system.  This is a very interesting and important paper, I believe, one of the most interesting on systemic risk that I’ve read; here is the SSRN abstract:

Systemic risk management is at the forefront of financial regulatory agendas worldwide. The global financial crisis was a powerful demonstration of the inability and unwillingness of financial market participants to carry out the task of safeguarding the stability of the financial system. It also highlighted the enormous direct and indirect costs of addressing systemic crises after they have occurred, as opposed to attempting to prevent them from arising. Governments and international organizations are responding with measures intended to make the financial system more resilient to economic shocks, many of which will be implemented by regulatory bodies over time. These measures suffer, however, from the lack of a theoretical account of how systemic risk propagates within the financial system and why regulatory intervention is needed to disrupt it. In this Article, we address this deficiency by examining how systemic risk is transmitted. We then proceed to explain why, in the absence of regulation, market participants are poorly situated to disrupt the transmission of systemic risk. Finally, we advance a regulatory framework for correcting that market failure.

In preparation for my 1L elective course next term on law and economics, I’ve also been re-reading various things, and after a lot of consideration, decided that the best way to understand the Coase theorem is to ... read Coase!  So I’m going to require a short little paperback with a couple of the key articles as part of the reading.  I came to the conclusion that Coase’s original papers tended to be clearer than the much more sophisticated and elegant but, from the standpoint of the uninitiated, much less accessible later versions of it.  Coase wrote to explain a new idea to an audience that had not seen it before, and his prose seems to me clear and straightforward.

Some people think that’s a really “stupid” question.

This Thursday I’ll be back in Washington, D.C. to participate in a book forum on Douglas Kysar’s new book, Regulating from Nowhere: Environmental Law and the Search for Objectivity sponsored by the American Constitution Society.  Other participants include Sheila Jasanoff of the Harvard Kennedy School, Amy Sinden of Temple and, of course, Kysar.  Details here.

Economic studies show that local governments often step up enforcement of minor traffic offenses during recessions in order to increase revenue. I seem to have been the victim of this kind of recession-driven revenue-mongering by the authorities in Falls Church, Virginia.

Twice during the past year, I have been ticketed for driving over the 25 MPH speed limit on Route 7 near downtown Falls Church, Virginia. Both times, the officers claimed I was going over 40 MPH, even though there was heavy traffic and it would have been physically impossible for me to have gone that fast without hitting the car ahead of me (which I didn’t come close to doing). I admit that it is quite possible that I was in fact going over 25 MPH. But this is a busy commercial thoroughfare where nearly all the traffic goes faster than that. As the officer in the second incident admitted to me, “all the cars [he] checked were going over 25 MPH.” Had I chosen to go much slower than the rest of the traffic, I would have endangered both myself and others. That’s why I got nailed in the second incident despite the fact that I knew to be careful in this area after what happened the first time.

During normal times, police generally let minor infringements of the speed limit go because they recognize that it is unrealistic to expect drivers to fully obey the speed limit and because they know that going much slower than the surrounding traffic is dangerous. During a deep recession, however, local governments pressure police to crack down and increase revenue. I suspect that such pressure is particularly likely in areas like Route 7 where much of the traffic is by people who don’t live in the jurisdiction. That way, local governments can fleece drivers who can’t even punish them at the polls for doing so. Such behavior undermines the implicit social contract between police and drivers under which the former focus on motorists who pose a genuine threat to public safety, while the latter can be assured that if they drive safely, minor infractions won’t be punished. The implicit contract is especially vital in an area like this stretch of Route 7, where the posted speed limit is simply unrealistic.

Between 2003 and 2009, I lived in Falls Church and drove down the very same road hundreds of times. I didn’t do anything differently than I have over the last year. Yet I never had any problems with traffic police. Since leaving Falls Church in August 2009, I have been stopped twice in that location, despite going there far less often (no more than 10–12 times in all). It’s possible that I somehow became a much more aggressive driver since the recession began (though social science data suggest that men become more cautious drivers as they pass into their thirties, and I am now 37). But it’s far more likely that it was enforcement that changed rather than me.

I was so angry that I actually contested the first incident in court, notwithstanding folk wisdom suggesting that I was wasting my time. Despite the facts that 1) the officer admitted that she misidentified the color of my Mazda 3, 2) both I and and my then-fiancee (who was with me in the car at the time) testified to the nature of the traffic, which made it impossible to drive 40 MPH, 3) the officer didn’t contest our testimony, and 4) the Mazda 3 is a very common car, the judge ruled against me. I don’t claim that these facts definitively prove that I was innocent. As I said, I don’t know for sure exactly how fast I was going. But they should surely have been enough to prove reasonable doubt, the standard of proof the judge was supposed to be applying.

I’m not an expert on traffic judges. But I suspect that people in that position tend to be biased in favor of the authorities, partly for the understandable reason that the police are usually right, and partly because local governments lobby for the selection of judges who will serve their revenue-raising interests. In Virginia, lower court judges are chosen by their local state legislative delegation, which creates obvious opportunities for lobbying by local governments. The driving public, by contrast, pays little attention to traffic courts because of rational ignorance. Moreover, even a completely unbiased judge can’t do much to protect drivers in cases where the driver really did exceed the speed limit, but in a way that should not have been punished. For these reasons, the judiciary may not be a very effective check against this kind of abuse.

I don’t have the expertise to propose any definitive solutions to this problem. But a few tentative thoughts occur. One possible option is to adopt speed limit laws under which speed limits automatically go up by, say, 5 MPH during a recession. That could offset the tendency towards overenforcement during such periods. Another option is to impose more rigorous state government control over speed limits in areas that get a great deal of traffic from outside the local jurisdiction. That might curb the ability of local governments to use speed traps to fleece out of towners.

Hopefully, those more expert than I am can suggest more and better reforms. In the meantime, I’m going to avoid driving near downtown Falls Church as much as possible. If you live in northern Virginia, you might want to do the same.

The stay is effective while the appeal is pending, meaning that DADT is in effect until at least early 2011 (or until it is repealed by Congress). The opinion is here. Judges O’Scannlain and Trott were in the majority; Judge Fletcher partially dissented, preferring to maintain the injunction during the appeal only as to actual discharges.  Rick Hasen comments here.

The majority noted that acts of Congress are presumed constitutional, especially when Congress is exercising its constitutional power “to raise and support armies.” It also noted that the district court’s decision holding DADT unconstitutional conflicts with decisions in four other circuits, not just in the sense that these other circuits’ substantive conclusions deserve respect but that the district court’s world-wide relief would actually interfere with their conclusions in their geographic areas.

The Court accepted the Obama DOJ’s bare assertions that a quick end to DADT would result in “immediate harm” and “irreparable injury” to the military. It also accepted the assertion that allowing gays to serve openly would require unspecified “training” and “guidance” of military personnel, especially combat forces, which cannot be done in a short time frame.

Overall, while the decision says nothing directly about the ultimate merits of the constitutional challenge to DADT, it does reinforce the heavy burden the Log Cabin Republicans are going to face on appeal.  Military policy is an area where courts rarely intervene, even if the justifications for the policy are very thin (as they are for DADT) and even if similar government policies would be unconstitutional if applied to civilian life. The writing is on the wall for this litigation.

(HT: Chris Geidner)

The Nov. 15 print issue of National Review contains an article by yours truly, “Repeal the Seventeenth Amendment.”  I just saw it in print for the first time today.

Of last week’s eight relists (discussed here), two were denied today: Stroud v. Blount and Wong v. Smith, the latter over the dissent of Justice Alito (joined by the Chief and Justices Scalia). Those were both cases on their first relist. The rest all appear to have been relisted yet again, so Alderman is on its second relist (Dismuke, as noted in the comment thread, was relisted once on 10/15, probably to consider a supplemental brief that petitioner had filed, but now is probably a hold for Sykes v. United States, 10–11311, granted 9/28); Beer v. United States, Allen v. Lawhorn, Wilson v. Corcoran, and Williams v. Hobbs are all on their fourth (!) relist. (See my last post, linked above, for the questions presented.) Since my last post, the Court has called for (and received) the record on Allen v. Lawhorn.

Expect to see some writing from the Court on those soon. Wilson, Allen and Williams may be candidates for summary reversal, but it’s hard to know whether they are really serious candidates without examining the pleadings.

In addition, it looks like the court relisted for the first time in at least two more cases today.

NFL v. Williams, 09–1380, CA8, which presents the question whether, when federal subject matter jurisdiction is not in question, defenses that require analysis of a collective-bargaining agreement may substantively preempt state-law claims under Section 301 of the Labor-Management Relations Act, 29 USC § 185(a), as the Seventh and Tenth Circuits have held, or whether such defenses are categorically irrelevant to preemption analysis, as the Eighth Circuit here and the Ninth Circuit have held.

Allshouse v. Pennsylvania, 09–1396, PA S.Ct., involving whether a child’s statements in an interview with a child protection agency worker investigating suspicions of past abuse are “testimonial” evidence subject to the demands of the Confrontation Clause under Crawford v. Washington, 541 U.S. 36 (2004).

Let me know if you’re aware of others.

UPDATE: Checking the docket today, I see that the Court hasn’t relisted Allshouse for the November 5 conference, although it has relisted each of the others. Looks like that case is simply being held for another case–one possibility is Michigan v. Bryant, 09–150, although I think there may be another case kicking around.

Last year I drafted a cert petition in McCane v. United States on whether the good-faith exception to the Fourth Amendment applies to changing law. The Court denied the petition. But having now just read the cert petition in Davis v. United States, the case the Court took today that raised the same issue as McCane, I can now say that the Court sort of granted on my petition after all: If you compare the two petitions, you’ll notice that much of the Davis petition is from the cert petition in McCane.

UPDATE: I’ve now spoken with counsel for Mr. Davis, and it looks like I may be working with him on the merits briefing and argument in the case. I was off working for the Senate when the cert petition in Davis was due, which is why I wasn’t consulted earlier (counsel for Mr. Davis didn’t know how to reach me, which is certainly understandable), and now it looks like I may be joining forces with him on the case.

As regular readers know, I have a forthcoming article that explains why I think the Supreme Court should reject the good-faith exception to the exclusionary rule for reliance on overturned precedent: Good Faith, New Law, and the Scope of the Exclusionary Rule, 99 Georgetown Law Journal (forthcoming 2011). Readers will also recall that I’ve been expecting the Supreme Court to grant cert on a case raising this issue sometime this fall: Specifically, I recently suggested that the Court probably would grant cert on the pending petition in Davis v. United States to avoid the recusal problems raised by DOJ’s petition for certiorari in United States v. Gonzalez.

Anyway, the Court scheduled consideration of Davis for last Friday’s conference, and this morning’s order list announces that the Supreme Court has indeed granted cert in Davis. So this issue will be on the Court’s docket for the Term after all; argument will be some time in the early spring, with a decision expected by June. This should be a very important case on the exclusionary rule, so stay tuned.

Peruta v. San Diego is one of several cases challenging sheriff misapplication of California’s concealed handgun carry licensing statute. The case features Chuck Michel as lead attorney for plaintiffs. The case does not assert that California’s statute requiring a license to carry a concealed handgun for protection is unconstitutional. Rather, the argument is simply that the statute specifies that licenses should be issued to qualified applicants (training, good moral character) who have “good cause.” Pursuant to Heller, lawful self-defense is not only good cause, it is the best possible cause. The case has already survived a motion to dismiss.

Along with Prof. John Eastman, I filed an amicus brief on behalf of the Independence Institute, Law Enforcement Alliance of America, Doctors for Responsible Gun Owners, and the Center for Constitutional Jurisprudence. The arguments are:

 I. The case can be decided without a standard of review, because near-total prohibition of a constitutional right is never constitutional.
II. A “reasonable” regulation is one that does not eliminate the exercise of a right, but instead is narrowly tailored, is based on a significant government interest, and leaves ample alternatives.
III. The state court cases approvingly cited in Heller expressly affirm the right to carry.
IV. Twentieth century state courts decisions affirm the general right to carry for lawful self-defense.
V. McDonald specifically addresses and prohibits mass deprivation of the right to bear arms.

Chief Conspirator Eugene commented on the legal aspects of the four-year old child and tortious negligence a couple of days ago, and linked to a story in the New York Times discussing the court’s holding.  I was intrigued by something else linked to this story, but not about the law.  Rather, when I opened the Times this morning — the paper edition (which, for reasons having to do with my Beloved New Yorker Wife, and despite my public announcements several times that we are giving up home delivery, continues to appear on our door at $65 a month ...) — I saw in the front page an article on this case.  Not the one that Eugene linked to, but a first person essay by Susan Dominus, under a “Big City” tag.  Here is a little bit from the middle:

This month, a judge ruled that the case against the 4-year-old girl involved could proceed (the family of the boy named in the suit did not file a motion for dismissal). Reading the judge’s ruling — which cites cases dating to 1928, and suggests that a 4-year-old could be held to the standard of some mythical “reasonable child” of that age — I kept flashing back to images from my college-era art history class: medieval baby Jesus, looking more like miniature adult Jesus, a representation of children as small adults so outdated as to seem almost incomprehensible through the lens of modernity.

Even as we expect our children to be ever more precocious — bilingual before kindergarten; too old at 4 for picture books, thank you; capable of showing us around our iPhones — somehow we never expect them to be ever more adult; certainly not so adult as to be potentially liable for negligence. One of my own 4-year-old twin sons not only believes Batman lives and breathes, but assumes he will someday grow up to be Batman. I have little fantasy that he is “reasonably” anything in particular when it comes to his judgment.

Obviously the Times or any other newspaper can sort out its strategy for the paper and front page however it thinks will be most successful, but I was struck that the Times has moved in the direction of an explicit magazine-type column, including first person commentary, on the front page.  It is true that the Times has been essentially turning the front page into a magazine for years now, in the sense of running stories that are not really about news of the day or even the week in a format that one might see in a weekly magazine.  But this was the first time I had seen the Times move to adopt a front page, first person, magazine style cultural criticism-opinion essay.  Indeed, first person to the point of discussing one’s own four year children in the essay.

This is not a complaint; it is an observation about changes in how a leading newspaper sees the journalistic function of the front page.  Perhaps the Times is seeking to differentiate itself from the WSJ, which despite many quirky front page stories, still maintains the stories as largely “news” stories.  Perhaps it can work with the smaller and more homogenous readership that the Times seems to be targeting; I don’t know.

It does not appeal to me — and this is not about politics, but the question of whether I read the front page of a newspaper, as it were, mostly for sense or most for sensibility.  The Times has for a long time been seeking to market itself as the bearer of a sensibility, exquisitely tailored (I myself find it tiresomely middle-brow, naturally, and most middle-brow in its upper-middle-brow condescensions).  But of course the Times has no doubt discussed the options thoroughly for how to increase its readerly appeal at the least cost; this might be it, for all I know.  Still, it did seem a noteworthy move in newspaper strategy.  I would be curious if there is anything published, in the journalist-insider press, for example, on how the Times came to this editorial decision.

That sounds right to me in principle, but it’s interesting to see how the court reaches that result under this particular statute (and in particular to see the court’s explicit and implicit judgments about what lovers implicitly consent to). From yesterday’s Chiszar v. State (Ind. Ct. App.):

On April 24, 2009, Chiszar’s fiancee, L.G., was spending the night at Chiszar’s house in White County. L.G. had fallen asleep with her clothes on in Chiszar’s bedroom. At approximately 2:00 a.m. on April 25, L.G. awoke to find that Chiszar had removed her clothes and was attempting to have sexual intercourse with her. L.G. immediately heard “beeping sounds” coming from a video camera sitting next to the television, and she realized that Chiszar was recording her. L.G. asked him, “Why are you videotaping me?” Chiszar responded that he was not videotaping her. L.G. then stated, “There is a camera. I’m looking at the camera. It is right there.” Chiszar again denied that he was videotaping her....

Chiszar ... contends that the voyeurism statute, Indiana Code Section 35–45-4–5, is unconstitutionally vague. That statute provides:

(a) A person ... who peeps into an area where an occupant of the area reasonably can be expected to disrobe, including [restrooms, baths, showers, and dressing rooms] without the consent of the other person, commits voyeurism, a Class B misdemeanor.

(b) However, the offense under subsection (a) is a Class D felony if ... it is knowingly or intentionally committed by means of a camera, a video camera, or any other type of video recording device; ....

(c) “Peep” means any looking of a clandestine, surreptitious, prying, or secretive nature.

... [T]he crux of the statute is consent. Spouses and significant others expect that they will see one another disrobing at regular intervals, and, under most circumstances, participants in such relationships impliedly consent to being seen without clothes on. But that is not to say that “peeping” is categorically permissible in such relationship settings.

It is the nature of the looking that is at issue here. The “looking” that is proscribed under the statute is “any looking of a clandestine, surreptitious, prying, or secretive nature.” There can be no reasonable purpose for that kind of looking since, by definition, it is without the other person’s knowledge, and, therefore, it is without the other person’s consent. To look at someone in a clandestine or secret manner is to hide that looking from the other person, and it is that act that is proscribed by the statute. We hold that individuals of ordinary intelligence would comprehend the statute adequately to inform them of the proscribed conduct and that the statute is not unconstitutionally vague.

To the extent that Chiszar contends the statute prohibits innocent conduct, like videotaping a surprise birthday party, we cannot agree. First, a surprise birthday party is unlikely to take place in an area where somebody is reasonably likely to disrobe. Second, unless the person videotaping the surprise party is hiding the camera and surreptitiously filming the event, there is no peeping. But, again, the “area” element of the statute is unlikely to be implicated in a surprise birthday party scenario.

Here, the evidence shows that Chiszar knew that he did not have L.G.’s consent to videotape her naked or engaging in sexual intercourse with him. While L.G. was sleeping, Chiszar videotaped himself taking L.G.’s clothes off, and he initiated sexual intercourse with her. L.G. woke up at that point and realized that Chiszar was videotaping her. L.G. was upset, and when she tried to grab the video camera, Chiszar took it and tried to prevent L.G. from getting it. When L.G. demanded that Chiszar give her the video camera, he denied having videotaped her. That evidence supports a reasonable inference that Chiszar knew that he did not have L.G.’s consent at the time that he videotaped her, and. thus, that he knowingly videotaped her in a clandestine manner in an area where she was likely to disrobe. Chiszar has not shown that the voyeurism statute is vague as applied to the circumstances of the instant case....

So I went to the Stewart/Colbert “rally” for an hour or so, but there were so many people that you couldn’t get close enough to follow what was happening. I assume it was different up close, but in the back you could barely hear anything and there was no video to watch, either. So for the most part I saw lots of people standing around enjoying the nice day, with lots of funny signs and many folks in Halloween costumes, but I couldn’t really hear anything onstage except for very faint renditions of the musical acts.

From Menagh v. Breitman (reported on in this New York Times article):

In this action for personal injury, plaintiff alleges that the infant defendants, who were racing bicycles on a sidewalk while under the supervision of their parent defendants, struck the plaintiff with their bicycles, causing severe injuries to the elderly plaintiff Claire Menagh.... [I]n this pre-answer motion to dismiss plaintiff’s complaint ... upon failure to state a cause of action, ... [t]he sole issue before the Court is whether an infant aged four years, nine months, is ... incapable of negligence as a matter of law, under the facts presented....

[I]nfants under the age of four are conclusively presumed incapable of negligence (Verni v Johnson, 295 NY 436, 438 [1946]).... Juliet Breitman, however, was over the age of four at the time of the subject incident. For infants above the age of four, there is no bright line rule, and “in considering the conduct of an infant in relation to other persons or their property, the infant should be held to a standard of care ... by what is expected of a reasonably prudent child of that age, experience, intelligence and degree of development and capacity” (Gonzalez v Medina, 69 AD2d 14, 18 [1st Dept. 19791, citing Camardo v. New York State Rys. 247 N.Y. 11 1 [1928]; see also Steeves v City of Rochester, 293 NY 727, 731 [1944] [“The general rule is that ‘a child is not guilty of contributory negligence if it has exercised the care which may reasonably be expected of a child of similar age and capacity.”’])....

This method of analysis has resulted in ostensibly conflicting case law, in which children less than a month apart in age are treated differently as to sui juris status. [In this case, “sui juris” refers to having legal responsibility for one’s actions. –EV] For example, a child aged four years, ten months who is hit by a car while crossing the street at his mother’s direction is non sui juris as a matter of law (Ehrlich v Marra, 32 A.D.2d 638 [2d Dept. 1969]). On the other hand, an unsupervised child of the same age who is struck by a car will not be held non sui juris as a matter of law, absent evidence that the child is otherwise unable to comprehend the danger posed by an approaching vehicle (e.g., Camardo, 247 NY at 111, Yun Jeong Koo, 89 Misc 2d at 775).

Continue reading ‘The Negligent 4-Year-Old’ »

Montana has on its ballot an initiative that would cap interest rates on non-traditional consumer loans (payday, auto title, and installment loans) at 36%.  It seems to be pretty comprehensive except for banks.  It also changes the rules for pawnbrokers.

Here’s an excellent recent analysis of some of the probable effects of the law.  Given that credit card lending has still not recovered from the credit crunch and the Credit CARD Act this law would come at an especially inopportune time for Montana consumers.