The Volokh Conspiracy

I’ve often seen people — usually on my side of the political aisle — praise “common sense,” and condemn those who make fancy arguments that defy common sense. Here’s an example, from a Reason column:

So why do intelligent people consistently make such a hash of things? Because they are smart enough to talk themselves into anything. Ordinary mortals don’t engage in fancy mental gymnastics to reach conclusions that defy common sense. But intellectuals are particularly prone to this.

I’ve always been skeptical of such praise of common sense, for two related reasons.

First, common sense often leads us to the wrong results. That’s especially evident in places where the rightness of the right result can be proven, such as mathematics, physics, astronomy, and so on. It often takes some pretty “fancy mental gymnastics” rather than “common sense” to solve problems in those fields.

And it’s also true in more practical fields, such as economics. I suspect that to many people it’s common sense that if you want the store shelves to always be filled, you need to have someone centrally planning production or distribution; the “invisible hand” can easily be dismissed as “fancy mental gymnastics” by those whose common sense inclines them against that explanation. Likewise, it was probably common sense to many that alcohol kills lots of people, directly and indirectly, and therefore banning it might be good — and it’s still common sense to many that guns kill lots of people, directly and indirectly, and therefore banning them might be good.

Second, even if your reaction to these matters is, “no, my common sense tells me that the free market is great, and this common sense is correct,” perhaps your common sense is in large measure molded by the “fancy mental gymnastics” of others — Adam Smith, Milton Friedman, and the like. And while your and my common sense may be well-tutored on these particular points, it’s likely that there are many other points, in the policy world and out of it, on which our common sense misleads us.

Of course, this isn’t to say that common sense always leads us astray even in the policy world. Moreover, common sense may often be more helpful in day-to-day personal and business decisions — where we have been tutored by repeated exposure, and by having a strong personal incentive to get those decisions right — than it is with policy or scientific judgments in which we have little experience. And I’ll be the first to admit that intellectuals often get things wrong. But I’m not sure that extolling common sense, and condemning conclusions that defy common sense, is a good rule of thumb for dealing with complicated questions of science, economics, social policy, or foreign policy.

In an earlier post, I looked at the Petitioner’s arguments made in the merits brief filed in United States v. Jones, the Fourth Amendment GPS surveillance case. In this post, I wanted to break down the Respondent’s merits brief in the same way.

I. The Four Models of Fourth Amendment Protection

First, a recap. In a recent article, I argued that the “reasonable expectation of privacy” test is best understood as four different inquiries. See Four Models of Fourth Amendment Protection, 60 Stan. L. Rev. 503 (2007). That is, there are four different kinds of arguments that the Supreme Court made about when the government violates a reasonable expectation of privacy and therefore is a Fourth Amendment “search.” Here are the four models I identified:

(1) the probabilistic model, by which an expectation of privacy is reasonable or not based on how common or expected the government’s conduct appears to be.
(2) the private facts model, by which an expectation of privacy is reasonable or not based on the nature of the information disclosed regardless of how it is obtained,
(3) the positive law model, by which an expectation of privacy is reasonable or not based on whether the government’s conduct violated some source of law outside the Fourth Amendment, and
(4) the policy model, by which an expectation of privacy is reasonable or not based whether it is desirable to have that outcome as a matter of policy.

Briefs and opinions tend to mix and match the models, making arguments using the model or models that support the argued-for result in that particular context.

II. The Defendant’s Merits Brief in United States v. Jones

Recall that the investigations in Jones attached a GPS tracking device to the suspect’s vehicle and tracked the vehicle’s location on public streets over time. The first question raised by the case is whether the use of the GPS device violated the suspect’s “reasonable expectation of privacy.” Much like the government’s brief, the defense’s brief provides a helpful case study of how arguments based on the four models tend to work.

Here’s how the arguments break down. The defendant’s brief starts by relying on the positive law model. The government action was a search because it infringed upon the defendant’s property rights, and because the same conduct by a private party would be a tort and (in some states) a crime. Indeed, a few states have barred warrantless GPS surveillance by statute. The fact that the government’s conduct violates the principles in those bodies of law outside the Fourth Amendment indicates that the conduct violated a reasonable expectation of privacy. See pages 16–22.

The brief then turns to the policy model. Warrantless GPS surveillance violates a reasonable expectation of privacy becayuse it is very invasive and easy to do, and letting the government conduct such surveillance without judicial oversight gives the government too much power. See pages 24–28. Next the brief turns to the private facts model, and argues that the level of detail in the information that can be obtained from a GPS device makes its use a search. See pages 28–30.

After responding to the Government’s brief, Jones’s brief then returns to the policy model to distinguish the earlier beeper cases on the ground that GPS surveillance raises much more of a dragnet concern than beepers. See pages 39–42. The brief then goes back to the private facts model to argue that the net sum of private facts gathered by GPS is very invasive. See pages 43–45.

(cross posted at SCOTUSblog)

Amin Farah Al, on trial in federal court for “allegedly funneling money to a terrorist group in Somali” (AP), has been found in contempt of court for refusing to stand for the judge and jury. The judge sentenced her to fifty days in jail: “The Court hereby finds that on this day, October 3, 2011, Defendant Ali failed to rise on ten occasions. Defendant Ali shall be sentenced to five days for each incidence of contempt, to be served consecutively, and after the trial in this matter is completed.” USA Today reports that, “[i]f Ali decides to rise for the court, her attorney can ask that the contempt charges be purged,” which means that her sentence would presumably be lifted.

The judge also revoked her pretrial release, so that she has to stay in jail during the trial: “On August 5, 2010, Defendant Ali was released pending trial, subject to certain conditions, including that the Defendant Ali not violate any federal, state or local law. As Defendant Ali has violated 18 U.S.C. § 401 by failing to rise when Court is called to Order, the Court hereby revokes release.”

Ali had argued that she had a First Amendment right not to stand, because she is “doing this for religious reasons”: “I am not going to stand up for anyone except Allah.” But the judge disagreed:

There is a long‐standing tradition in the court system which requires all participants to stand when the Court is called to Order or called in Recess (referred to herein as the “rising requirement”). The function of the rising requirement is to mark the beginning and the end of the court sessions, to show respect for the court system, to assist judges in maintaining order, and to remind all that attention should be paid to the court proceedings. [The court later quoted a court of appeals case, In re Chase, 468 F.2d 128 (7th Cir. 1972), which gives a bit more detail on the rationale for this requirement. –EV]

The Defendant has refused to comply with the rising requirement [which the court had specifically provided for in an earlier court order –EV], stating that her religious beliefs prohibit such compliance. While freedom of religion is a protected right under the First Amendment, the Defendant has not demonstrated to the Court that her First Amendment rights take precedence over the rising requirement, especially in light of the fact that she is exercising such right inconsistently. Evidently, the Defendant’s professed religious beliefs did not prevent her from standing when she was introduced to the prospective jurors. [Sentence moved: When the Defendant was identified for the prospective jurors ... she immediately stood when her name was called.] Accordingly, the Court finds that Defendant Ali’s failure to rise when Court is called constitutes criminal contempt....

Failure to rise when the judge or jury entered the courtroom has been found to constitute criminal contempt, even where the defendant had claimed that his refusal to stand was based on his religious beliefs. In re Chase, 468 F.2d 128 (7th Cir. 1972). See also Evans v. Ciccone, 377 F.2d 4, 6 (8th Cir. 1967) (finding that freedom of religion cannot be made superior to reasonable rules of conduct, in or out of prison).

I suspect the judge’s actions likely violate the federal Religious Freedom Restoration Act (RFRA), because the standing requirement is probably not necessary to serve a compelling government interest (which is the test the Act prescribes). Requirements that people stand as a gesture of respect, like requirements that they salute the flag, also generally violate the Free Speech Clause (see West Va. Bd. of Ed. v. Barnette (1943)). But the rule may be different for in-court behavior, where restrictions on speech and symbolic expression are generally much more acceptable than outside court, and where compulsions of speech and symbolic expression might likewise be constitutional, which is why I think Ali’s strongest claim would likely be under RFRA.

Beyond this, though, I thought it was worth noting the connection between this incident and a famous incident from Anglo-American legal history — the 1670 trial of William Penn, who of course would go on to found Pennsylvania. Penn was a Quaker, and because of his beliefs refused to uncover his head in court. Much like Ali, the Quakers of the era saw such uncovering of the head as a “token[] of reverence due to the Almighty alone.” The court found Penn to be in contempt, and fined him 40 marks. (Penn had actually entered the courtroom with his head uncovered, and an official put the hat back on Penn’s head; but the court’s objection seemed to be to Penn’s refusal to remove the hat at that point.) The jury in the underlying case — the prosecution of Penn for unlicensed preaching — later refused to hand in a verdict that the court saw suitable, which led to the landmark jury rights decision in Bushel’s Case.

This incident doesn’t, of course, dispose of what the rule is or even ought to be in the U.S. today. But it does provide a bit of perspective on how modern-seeming objections by religious groups that are mostly new to the country — such as Muslims — often echo religious objections that have been considered by Anglo-American law for centuries.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

Our readers likely know that I have many disagreements with prescriptivists when it comes to English usage. But while I have philosophical disagreements with prescriptivists in general, my main practical disagreements are with people who might best be labeled “assertionists” — people who don’t just say that prescriptionists set forth by some supposed authorities define what is “right” in English, but who simply assert a prescription even in the face of what those supposed authorities say. Usage X is wrong, they say. Why? Because it violates this rule. What’s your authority for the proposition that this is a rule? Well, it violates the rule.

The recent exchange about starting sentences with “and,” “but,” or “or” offers an excellent example. I pointed out that this is common usage — including among prominent authors, in leading newspapers such as the New York Times, and in leading legal sources such as the opinions of the U.S. Supreme Court. I also noted that the supposed usage authorities that I checked do not in fact condemn it.

Yet some people still argued that such a usage is wrong, at least in “formal” writing (though you’d think that Supreme Court opinions would be classified as pretty formal). When I inquired why this might be so, I got three basic replies:

1. “I learned basic grammar long ago. A conjunction joins two related thoughts in a sentence.” But this is mere assertion. One can equally say that conjunctions (or at least the kind we’re discussing) “link units of equal status”; indeed, this is precisely what the Oxford English Grammar (1996) says. This could mean two words in a sentence, two clauses in a sentence, two sentences in a paragraph, or two paragraphs in a work; and indeed the Oxford English Grammar gives an example of a sentence that starts with “But,” without any objection.

Now one could try to dismiss such an authority (and I’ve heard many assertionists do that in other contexts) by saying that the authority is merely descriptivist, and that therefore we shouldn’t trust its claims. I don’t buy that argument, because I’m a descriptivist; but let’s accept it for a moment. Even if one dismisses the Oxford English Grammar as an authority for the proposition that conjunctions “link units of equal status” as opposed to just “two related thoughts in a sentence,” one still needs an authority for the contrary proposition. What is that authority?

2. One commenter did try to point to such an authority, writing,

I have a Ph.D. in linguistics and I taught grammar at a university for 20 years — for what it is worth. It is indeed a rule in formal English that you cannot begin a sentence with a conjunction. See grammar texts by Azar.

Formal English = written English in a formal context = English that is meant to be read in a formal context, e.g. academic research.

In conversation, however, you can start a sentence with a conjunction. Blogging is often intended to be conversational, so we see conjunctions at the beginning of sentences a lot. I do it in my own blog.

To be formal, use ‘also’ for ‘and’; use ‘however’, for ‘so’. Make sure you use commas.

Please note: Language changes. This is one of those areas of English that we see changing before our eyes. My children will know how to use ‘however’ and ‘thus’, and know how to punctuate them, but I don’t expect that their public schooled peers will.

So I got a text by Azar (Betty Schrampfer Azar). As best I can tell, Azar generally writes schoolbooks, so I got Fundamentals of English Grammar, a “developmental skills text for lower-intermediate and intermediate students of English as a second or foreign language.” And, sure enough, Azar does say that “Except in very formal writing, a conjunction can also come at the beginning of a sentence,” though without (as best I can tell) explaining what writing qualifies as “very formal.”

But Azar doesn’t explain the basis for her assertion, so it’s basically her word against the Oxford English Grammar’s, Webster’s Dictionary of English Usage, the Harper Dictionary of Contemporary Usage, the Supreme Court, and others (at least unless “very formal writing” is such a vanishingly small category that none of the sources thought of noting the exception, and that Supreme Court opinions do not fit within it). Again, then, we have argument by assertion, with no explanation for why we should follow Azar rather than the others.

3. Finally, one of the commenters also argued, “My impression is that, in casual English, sentences beginning with conjunctions are usually incomplete sentences. However, they may contain complete thoughts with the missing words implied.” Now I think that functional arguments are often sound arguments for why we should avoid some usage (though not that the usage is “wrong”). But again this seems to me argument by assertion. The commenter thinks that sentences beginning with conjunctions (such as “but”) are usually incomplete sentences, but I don’t know of any evidence for that proposition. (Why would such sentences be incomplete more often than sentences that start with, say, “However” or “Moreover”?) Nor does the commenter offer argument in support of the more relevant proposition that we should avoid complete sentences beginning with “but” just because many such sentences are incomplete.

I’ve discussed this before, here, here, and here. But I thought it was worth noting, and worth breaking assertionism out as a separate category, and to call on people who make prescriptivist arguments to at least identify the supporting evidence or argument for their prescriptions — and to explain why this evidence or argument trumps the evidence or argument on the other side — rather than just relying on bare assertion.

Thank you to those who commented on my first post yesterday! Before I begin my formal post for today, I wanted to make sure I responded to questions about how average life span went from around 18 years in the cro-magnon era to around 80 years today.

Tragically, the majority of children used to die before the age of 10 years. This was mainly due to infectious diseases, poor nutrition, and sanitation problems. Discoveries such as antibiotics, vaccines, vitamins and indoor plumbing led to humanity’s rapid gains in life expectancy.

What this means is that, for most of history, gains in human life expectancy were made at the beginning, not the end of life. It is true that older people have always been part of society, but they were less numerous and more weathered than today’s seniors.

As life expectancy rose, so did the number of older people, and that was when chronic diseases such as heart disease, cancer, and Alzheimer’s made their way into our common vocabulary. But that is not the end of the story. Rather, it is the beginning of a new chapter where humanity takes on ill health and death at later ages. Indeed, those efforts have already had an impact on the growth of life expectancy.

Historian Jim Oeppen and demographer James Vaupel point out that “in the second half of the 20th century, improvements in survival after age 65 propelled the rise in length of people’s lives.” There is more on this in chapter 2 of my book, so instead of taking more word space here, I would refer you there to read more.

Now, once the human project to extend health spans at later ages gets more momentum and we are living past 100, perhaps to 150, how might that change the economy?

Economist Julian Simon was famous for arguing that “the ultimate resource is people – especially skilled, spirited, and hopeful young people endowed with liberty – who will exert their wills and imaginations for their own benefit, and so inevitably they will benefit the rest of us as well.”

One immediately notices that he specifically mentions young people. One of the reasons for this is that young people are generally healthy, and have the energy to pick up big projects and run with them. They are also often doing things for the first time, which potentially gives them a different perspective from those who have been in the field for a while.

So how will longer health spans change our stock of human capital? First, and perhaps most importantly, ‘healthy’ directly implies better and more productive human capital. This is perhaps an obvious conclusion, but it wasn’t until relatively recently that researchers began investigating whether health actually creates wealth.

For many years, it’s been clear that there is a positive correlation between health and wealth, but it was most commonly thought that wealth creates health. While it is certainly true that the rich can afford to take better care of themselves, it is now known that health also begets wealth. Put another way, poor health causes a decline in productivity for the simple reason that it’s very difficult to work effectively when you’re in ill health, thereby increasing the chances of falling into poverty.

In their paper titled the “Health and Wealth of Nations,” Harvard economist David Bloom and Queen’s University economist David Canning explain that, based on the available research, if there are “two countries that are identical in all respects, except that one has a 5 year advantage in life expectancy,” then the “real income per capita in the healthier country will grow 0.3–0.5% per year faster than in its less healthy counterpart.”

While these percentages might look small, they are actually quite significant, especially when one considers that between the years of 1965 to 1990, countries experienced an average per capita income growth of 2% per year. When countries only have an average growth of 2%, an advantage of 0.5% is quite the boost.

Now, those numbers are based only on a 5 year longevity advantage. What if a country had a 10, 20, or 30 year advantage? The growth may not continue on a linear basis, but if the general rule holds – a jump in life expectancy causes an increase in economic growth per capita – then having a longer-lived population would facilitate enormous differences in economic prosperity.

This helps to explain why there is a movement among some academics and activists to urge Congress to spend more on anti-aging research in order to create what they call a “longevity dividend.”

For instance, public health professor S. Jay Olshansky argues that slowing aging by only three to seven years would, “simultaneously postpone all fatal and nonfatal disabling diseases, produce gains in health and longevity equivalent to cures for major fatal diseases, and create scientific, medical, and economic windfalls for future generations that would be roughly equivalent in impact to the discovery of antibiotics in the 20th century.” His enthusiasm is justified, given that economists have demonstrated that improvements in health were a major contributor to well-being over the 20th century.

In 2006, University of Chicago economists Kevin Murphy and Robert Topel painstakingly calculated that, for Americans, “gains in life expectancy over the century were worth over $1.2 million per person to the current population.” They also found that “from 1970 to 2000, gains in life expectancy added about $3.2 trillion per year to national wealth.”

These enormous numbers represent a spectacular accomplishment in terms of benefits. Indeed, it could be said that longevity gains are really the best thing humans have ever accomplished.

There is more to be said about human capital and longevity (consider that innovation is a late-peak field) so if you want to read more, I suggest looking at chapter 6 of 100 Plus.

Tomorrow, I will post about how greater longevity might affect family relations.

Prompted by the controversy over Mearsheimer and Atzmon, Bob from Brockley has a good post on anti-Semitism, including this discussion of non-anti-Semitic anti-Zionism, with my added emphases:

Anti-Zionism that also takes a consistent opposition to all nationalisms (including Palestinian nationalism) is not antisemitic; Jewish religious anti-Zionism such as that of the Satmer Hasidim is not antisemitic; Jewish anti-Zionism which rejects the Zionist solution to the questions of Jewish survival and continuity (such as the position of the Jewish Socialist Group or others in the tradition of the Bund, folkism and other diasporist traditions) is not antisemitic [Editor: though one wonders about the relevance of these traditions in 2011, when there is an existing Jewish state with almost eight million citizens]; anti-Zionism from the perspective of Israeli citizens (Jewish or Arab) who want to see Israel as a democratic state for all its citizens (rather than a Jewish state) is not antisemitic; finally anti-Zionism which sees Zionism as a form of imperialism and takes a consistent opposition to all imperialisms without singling out Zionism as unique is wrong-headed, but not in itself antisemitic. All of these forms of anti-Zionism can be used as fig-leaves for antisemitism or be used to feed antisemitism, but they are not themselves antisemitic. [Editor: And I would add one more. Islamist anti-Zionism that is based on the idea that “Palestine” is Islamic territory that for theological reasons may not be governed by non-Muslims is not, by itself, anti-Semitic.]

Unfortunately, it’s increasingly the case that even those who approach anti-Zionism from one or more of these perspectives are at best tolerant of the anti-Semitism indulged in by some of their allies, and at worst engage in rhetoric that smacks of classical anti-Jewish themes, even if the individuals in question are not themselves anti-Semitic.

As I’ve noted before, there are two basic reasons for this phenomenon. The first is that given longstanding Western cultural prejudices against Jews, marrying anti-Zionism with anti-Semitism can be extremely effective from a rhetorical perspective. And, second, if you are inclined to believe that Israel and its policies are an especially grave danger to world peace and security you will tend to err on the side of being tolerant of anti-Semitism to the extent that you think it is furthering the anti-Israel cause [update: because you see Israel as a greater threat/danger/cause for concern than anti-Semitism]. Neither of these explanations are excuses, of course.

Tags: Gilad Atzmon, John Mearsheimer

Today the U.S Court of Appeals for the D.C. Circuit released a divided opinion in Heller v. D.C. . In this case, Dick Heller (of the Supreme Court’s Heller decision) is challenging the Firearms Registration Amendment Act of 2008 (FRA), a statute adopted by the District of Columbia in response to the Supreme Court’s decision invalidating the District’s prior gun controls. Whereas Heller had prevailed in the D.C. Circuit before, this time he was not so lucky. The panel majority, consisting of Judges Ginsburg and Henderson, largely rejected his challenge to D.C.‘s ban on some semi-automatic rifles and new gun-registration requirements. Judge Kavanaugh wrote a lengthy dissent.

This morning a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit issued an opinion in Van Hook v. Bobby for the fourth time.  On three previous occasions the panel had granted habeas relief to death row inmate Robert Van Hook , and all three times the panel was overturned — twice by an en banc court and once, summarily, by the Supreme Court.  This time, it appears, Van Hook was out of arguments, and the panel denied his petition.

So explains John Lott, in an opinion column for Foxnews.com. Not a surprising result. The McDonald v. Chicago amicus brief I wrote for the International Law Enforcements Educators & Trainers Association (and other law enforcement organizations, and criminologists) showed that after Chicago enacted its handgun ban, its violent crime rate rose sharply. Pre-ban, Chicago had a violent crime rate 1.12 times greater than the violent crime rate of the 24 other largest cities. (That is, Chicago’s violent crime rate was 12% higher than that of the 24 other cities.) Post-ban, Chicago’s crime rate soared immediately, and remained 67% higher than the other large cities. The possibility that Chicago’s sudden and long-standing deterioration compared to other large cities is less than 1 in 100,000. Details are presented at pages 17–22 of the brief, and the appendices.

Like David, I too was invited to contribute to the new Scotusblog Community on the question of what the Supreme Court should do with the Affordable Care Act. Rather then simply repeat my constitutional arguments, I took a different tack:

The Supreme Court should remand the Affordable Care Act to Congress for its further consideration.

The Affordable Care Act (ACA) was a constitutional mistake and a historical accident. In the fall of 2009, 60 Senate Democrats were struggling to pass some type of health care reform, any type of health care reform. There were not 60 votes for “single payer” (i.e. Medicare for Everyone); there were not even 60 votes for a “public option” (i.e. voluntary Medicare for pre-retirement Americans); and there were certainly not 60 votes to do anything that would raise taxes on those making less than $200,000 per year.

So Democrats went into a closed room — the same room that produced the Cornhusker Kickback and the Louisiana Purchase — and adopted the individual insurance mandate under its Commerce Clause power. It was not as though they weren’t warned. The Congressional Research Service correctly informed them that a mandate that all Americans enter into a contractual relationship with a private company for the rest of their lives was literally unprecedented and of dubious constitutionality. Senate Republicans made a constitutional objection to the individual mandate, which the Democrats defeated on a straight party-line vote the day before passing the Act on Christmas Eve.

But this bill was likely never intended to become law. It was intended to get the issue out of the Senate with 60 votes in favor of health care reform. The real bill would then be written in conference with the House and voted on later. But then something unexpected happened: Scott Brown was elected Senator from Massachusetts (!) on this issue. Now Democrats had a choice. Approve the constitutionally-suspect Affordable Care Act in the House (over the strenuous objection of many Democratic members), or go back to the drawing board. But with Republicans and millions of Americans now vocally protesting the constitutionality of the bill, for the first time in American history, a sweeping new social welfare scheme was enacted with the votes of only one party over bipartisan opposition.

Heeding the advice of legal academics, the Democrats wagered that the courts would never strike down so ambitious a social welfare scheme. Then, when this elaborate mechanism eventually failed to deliver on its promises of “bending the cost curve” and “universal coverage” — after private insurance companies had been turned into regulated public utilities — they could then push for their real desire: Single Payer.

Although Congress is a co-equal branch of government, the Supreme Court need not “defer” to what happened here. Instead, it should refuse to extend to Congress the entirely novel and dangerous power to compel all Americans to do business with whatever private company that Congress happens to have the power and votes to regulate. The Court should send this bill back to Congress so Congress can use its ample powers under existing doctrine to tax and spend, as well as to regulate interstate commerce. Such a ruling would affect no other law that has ever been enacted.

I predict that the result of such a decision would be major health care legislation that would not only be far better public policy, it would receive the same type of bipartisan support that has previously been enjoyed by every major piece of social-welfare legislation in our history.

You can comment on this post here at Scotusblog.

Economist Joshua Hall has an interesting article describing an oft-ignored, but very important expansion of freedom over the last several decades: the declining use of military conscription. He notes that, as of 1970, some 80% of the world’s governments used conscription, including the US and many of the democratic nations of Western Europe. By 2009, that had declined to 45%, and many of those nation that still have conscription have reduced the length of conscript’s terms and made it easier to escape the draft. Even France, the nation that first pioneered conscription in the 1790s, abolished it in 2001.

Hall also gives a good summary of the economic case against conscription. Most knowledgeable people are aware of the standard points that conscription reduces the quality of the military because professionals are, on average, better soldiers than short-term conscripts, and that conscription creates major social costs by forcing people to serve who would be more productive in other occupations. Hall notes two other ways in which conscription is inefficient that are less well-known — that it creates deadweight losses by diverting people from their preferred occupations to those which have draft exemptions, and that it encourages governments to underinvest in military equipment and instead sacrifice more lives in battle rather than capital:

Like all taxes, conscription has distortionary effects that create deadweight losses. During the Vietnam War, for example, draft dodging and college enrollment motivated by draft avoidance created deadweight losses. More recently, World Bank economists Michael Loshkin and Ruslin Yemtsov estimated that 90 percent of eligible men are able to avoid Russia’s draft through a variety of means.

In his 1967 article making the case for a volunteer army, Milton Friedman argued that a volunteer army would lead the military to use more and better equipment. One consequence of an artificially low cost of military labor is that it discourages the military from substituting away from labor and towards capital. This point was perhaps best made by German economist Johann Heinrich von Thunen, in his nineteenth-century book, Isolated State:

The reluctance to view a man as capital is especially ruinous of mankind in wartime; here capital is protected, but not man, and in time of war we have no hesitation in sacrificing one hundred men in the bloom of their years to save one cannon.

In a hundred men at least twenty times as much capital is lost as is lost in one cannon. But the production of the cannon is the cause of an expenditure of the state treasury, while human beings are again available for nothing by means of a simple conscription order...

On the latter point, Hall cites a chilling quote by Napoleon, the founder of the first modern conscription system: “When the statement was made to Napoleon, the founder of the conscription system, that a planned operation would cost too many men, he replied: ‘That is nothing. The women produce more of them than I can use.’” Napoleon regarded conscripts as a “free good” and therefore didn’t much care how many of them got killed. Democratic governments tend to be more casualty-sensitive than he was. But even they tend to waste conscripts’ lives at a higher rate than those of professionals who have the right to quit. The introduction of the all volunteer force has clearly led the US military to be more careful about losses than it was in World War II, Korea, and Vietnam.

In addition to its inefficiency conscription is also objectionable because it is a form of forced labor that severely undermines personal freedom. There are few more severe violations of human rights than forcing a person to do work he doesn’t want at below-market rates for years at a time. In addition, conscripts’ lives are often tightly regulated even when they are not actively carrying out their duties. And, of course, they are sometimes forced to risk their lives.

Many people resist the comparison between conscription and other forms of forced labor because they see military service as providing a great good that is essential to our society. But military service is far from unique in that regard. Historically, slaves and forced laborers often performed work that was vital to the social order. The entire economy of the antebellum South depended on crops produced by slaves. So too with ancient Rome, Russia in the era of serfdom, and so on. The key point to realize is that this work, however noble and necessary, can be performed by free laborers. Thus, the use of forced labor to carry it out is still unjust. The same goes for military service. Both the United States and other liberal democracies can field more than adequate military forces without conscription. Indeed, they can create better armies without it than with it.

One can imagine hypothetical situations where conscription might be justified even on libertarian grounds. For example, it might be the only way to avoid conquest by a totalitarian state that would impose more brutal and more universal forms of forced labor. In the real world, however, no such scenario is even remotely plausible for the foreseeable future. And it is likely to become even less plausible as military technology becomes more complex and soldiers need more and more specialized skills that are best provided by professionals rather than temporary conscripts.

The Prohibition Era combines two of my favorite topics: the Fourth Amendment and beer. The latter was banned, and the former was routinely litigated for the first time in American history. As a result, I was a natural audience member for the new Ken Burns’s series Prohibition, which began last night. The series is loosely based on Daniel Okrent’s book Last Call. Based on the first episode, though, the TV series is much easier to follow than the book: When I tried reading the book a few months ago, I found it in need of an an editor who could link the pieces together in a coherent way. But the TV version is excellent so far. The story is well told, and the pictures and video (even with awkwardly filled-in artificial sound) add a lot.

You can watch the first episode in its entirety here. Enjoy.

One meaning of “saloon,” at least in England, turns out to be the type of car that we Americans call a sedan. I did not know that.

There has been a lot of controversy in the past about whether the government should be free to subpoena library records or bookstore records, or execute search warrants for such records. (See, for instance, this post of Orin’s, this Congressional testimony by Orin, and pp. 30–37 of this article of mine.) I just ran across a case that dealt with this question in an unusual context — where the defendant’s alibi involved his supposedly returning a certain book to the library, State v. Hilton (Wash. Ct. App. Sept. 27, 2011):

Mr. Hilton’s remaining arguments are that the records were private under both Const. art. I, § 7 and the Public Records Act (PRA), chapter 42.56 RCW, and protected by the First Amendment and Const. art. I, § 5. In particular, he cites to RCW 42.56.310, which provides that a library record that “discloses or could be used to disclose the identity of a library user is exempt from disclosure under this chapter.” The emphasized language makes short work of Mr. Hilton’s PRA argument. The PRA provides an exemption from disclosure pursuant to a public records request. It does not create a privilege, let alone a privilege exempt from judicial process. See RCW 42.56.050; Brown v. Johnston, 328 N.W.2d 510 (Iowa), cert. denied, 463 U.S. 1208 (1983). Similarly, Const. art. I, § 7 prohibits intrusion into “private affairs” absent “authority of law.” A subpoena is “authority of law.” Gunwall, 106 Wn.2d at 69. Mr. Hilton’s argument is without merit.

The free speech argument fares no better. Mr. Hilton appears to predicate his claim at least in part on the theory that the SIJ [Special Inqury Judge] proceedings were invalid, an argument we have already rejected. His sole authority is a Colorado case, Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044 (Colo.2002). That authority is not apropos. That case involved an injunction against a search warrant, not a valid subpoena. The court ultimately concluded that the government had not established a compelling interest justifying the search for records that were recognized as private in Colorado. Id. at 1061. There, also, the bookstore resisted efforts to provide information about its customer. Here, the library provided the records within hours of the subpoena. Mr. Hilton has presented no relevant authority suggesting that this subpoena was invalid for failing to address the particular concerns associated with free speech rights.

Even if Washington followed the same compelling interest test, it would be met in this case. A double murder was being investigated. Mr. Hilton had voluntarily told police that he had been at the library that evening and indicated which book he had returned. He had waived any claim of privacy related to Hard Time or his checkout and return records. The compelling State interest in confirming or dispelling his alibi outweighed the privacy interest he had already waived. [Footnote: Moreover, the librarian’s testimony concerning when Hard Time was returned to the library was the result of an independent source–the defendant’s own admissions to the police–not the subpoena process. Thus, even if the subpoena had been invalid, it would not affect the testimony against the defendant.]

The SIJ subpoena was properly issued. It did not infringe upon any rights belonging to Mr. Hilton. Accordingly, the trial court correctly denied the motion to suppress the evidence.

As I mentioned, this is an unusual situation, and one could argue that the rule should be different if the government were seeking library records in other contexts. But I thought it was still worth noting, just as an example of how the issue might sometimes come up.

It is common for e-mail from lawyers to have a statement at the end indicating that the e-mail is confidential and may be privileged, and that if you have received the e-mail in error you should delete it. Sometimes the statement also includes this line:

This email (including the attachments) is covered by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510–2521.

If you’re a lawyer and the statement at the end of your e-mail has that line quoted above, please do yourself a favor and remove it. Including that line only shows that you have no idea what the Electronic Communications Privacy Act does, and that you are comfortable repeatedly invoking a law even though you have no idea what is in it. That’s a pretty lousy image to present for your legal practice.

For those curious about the details, 18 U.S.C. §§ 2510–2521 is the federal Wiretap Act. It prohibits the real-time interception of the contents of any communications sent over any communications network without the permission of one of the parties. In 1986, the law was amended by the Electronic Communications Privacy Act to apply to “electronic communications,” which basically means all computer communications. Under the 1986 Act, it is a crime to intercept any electronic message between its send and delivery points absent an exception to the statute. Importantly, the Wiretap Act only applies when the communications are in transit. That means the statute doesn’t stop anyone from reading any e-mail that lands in their inbox, even if it was misdelivered there. That’s true for two reasons. First, If the e-mail has been sent to you, you are a party to it, and you can read it. Plus, once an e-mail has been delivered and it is sitting in your inbox, reading it cannot be an “intercept” because the e-mail in your inbox has already been delivered.

Now that you understand what the statute actually does, you can see why the disclaimer that I quoted above is rather nonsensical. First, the lawyer’s e-mail is “protected” by the statute only to the extent that every phone call and every e-mail, Facebook message, text message, IM, and every other electronic communication is protected. Second, by the time the reader actually sees the e-mail, the message has been delivered and the cited statute no longer provides any protection at all. So if you include that line, you’re basically saying that you think it’s noteworthy that your e-mail has the same protection has all e-mails — which in this case is none at all.

Tonight at 7:00 eastern I’ll be appearing with guest host Tom Lucero on the Luke Shilts Radio show on 1310 KFKA in Colorado talking about “The Dick Durbin Bank Fees.”

Jack Goldsmith, writing at Lawfare, urges the Obama administration to release a redacted version of the Justice Department’s memo concluding that the targeting of Al-Awlaki was lawful — if not a redacted version, then some reasonably complete and authoritative statement of its legal reasoning.  I agree.  The nature of these operations abroad is that they will almost certainly remain beyond judicial review and, as a consequence, OLC opinions will serve as the practical mechanism of the rule of law.

The best argument against disclosure is that it would reveal classified information or, relatedly, acknowledge a covert action.  This concern is often a legitimate bar to publishing secret executive branch legal opinions.  But the administration has (in unattributed statements) acknowledged and touted the U.S. role in the al-Aulaqi killing, and even President Obama said that the killing was in part “a tribute to our intelligence community.”  I understand the reasons the government needs to preserve official deniability for a covert action, but I think that a legal analysis of the U.S. ability to target and kill enemy combatants (including U.S. citizens) outside Afghanistan can be disclosed without revealing means or methods of intelligence-gathering or jeopardizing technical covertness.  The public legal explanation need not say anything about the means of fire (e.g. drones or something else), or particular countries, or which agencies of the U.S. government are involved, or the intelligence basis for the attacks.  (Whether the administration should release more information about the intelligence supporting al-Aulaqi’s operational role is a separate issue that raises separate classified information concerns.)   We know the government can provide a public legal analysis of this sort because presidential counterterrorism advisor John Brennan and State Department Legal Advisor Harold Koh have given such legal explanations in speeches, albeit in limited and conclusory terms.  These speeches show that there is no bar in principle to a public disclosure of a more robust legal analysis of targeted killings like al-Aulaqi’s.  So too do the administration’s many leaks of legal conclusions (and operational details) about the al-Aulaqi killing.

The public accountability and legitimacy of these vital national security operations is strengthened to the extent that the public is informed and, through the political branches, part of the debate on the law of targeted killing.  That cannot be operational discussion, for obvious reasons.  But there is still a good deal that could be said about the underlying legal rationales, without compromising security.   I myself favor revisions, either as internal executive branch policy or, in a better world, as formal legal revisions to Title 50 (CIA, covert action, etc.) and the oversight and reporting processes.  One of those revisions would be to get beyond the not just silly, but in some deeper way, de-legitimizing insistence that these operations cannot be acknowledged even as a program; I would establish a distinct category of “deniable” rather than “covert,” and a category of programs that can be acknowledged as existing even without comment on particular operations.

John Bellinger, the former State Department Legal Adviser in the last years of the Bush administration, raises concerns in the Washington Post today about the best way to defend the international legitimacy of these operations.  He notes the deep hostility of the international advocacy groups, UN special raporteurs, numbers of foreign governments, and the studied silence of US allies (even as NATO, I’d add, has relied upon drones as an essential element of its Libyan air war).

[T]he U.S. legal position may not satisfy the rest of the world. No other government has said publicly that it agrees with the U.S. policy or legal rationale for drones. European allies, who vigorously criticized the Bush administration for asserting the unilateral right to use force against terrorists in countries outside Afghanistan, have neither supported nor criticized reported U.S. drone strikes in Pakistan, Yemen and Somalia. Instead, they have largely looked the other way, as they did with the killing of Osama bin Laden.

Human rights advocates, on the other hand, while quiet for several years (perhaps to avoid criticizing the new administration), have grown increasingly uncomfortable with drone attacks. Last year, the U.N. rapporteur for summary executions and extrajudicial killings said that drone strikes may violate international humanitarian and human rights law and could constitute war crimes. U.S. human rights groups, which stirred up international opposition to Bush administration counterterrorism policies, have been quick to condemn the Awlaki killing.

Even if Obama administration officials are satisfied that drone strikes comply with domestic and international law, they would still be wise to try to build a broader international consensus. The administration should provide more information about the strict limits it applies to targeting and about who has been targeted. One of the mistakes the Bush administration made in its first term was adopting novel counterterrorism policies without attempting to explain and secure international support for them.

The problem of international legitimacy is always tricky, as Bellinger knows better than anyone.  I look at it this way.  Tell the international community that we care about legitimacy — which is to say, that we care about their opinion in relation to our practices — and all of sudden we have handed other folks a rhetorical hold-up, to a greater or lesser degree.  Unsurprisingly, the price of their good opinion and their desire to exercise control over our actions goes up.  This is nothing special to this; it’s just standard bargaining theory.

On the other hand, ignore them altogether, and they — particularly, note, our allies, those who say that they are acting roughly within our shared sphere of values discourse, not the Chinese or the Russians — develop a set of norms that they then apply in such a way as to mark us as the outlier and the deviant.  Again, this is just drawn from any standard account of norm-negotiation; it’s not a statement of nefarious intent; it’s an acknowledgment that both we and our allies are invested in norms, and that we are not merely societies of narrow interests.  At its worst, developing a quite separate norm regime and then characterizing us as genuinely deviant from it might lead to arrest warrants issued for current or former US officials, and much distrust between sides.  It might also lead to places where even our allies might not want to go — putting themselves outside of the US security umbrella in particular matters that turn out to concern them a lot, such has having access to drones in Libya.

If the norm envelope is pushed hard enough, however, then our allies wind up depriving themselves of access to the weapon, which clearly they don’t want to do.  So they have reasons not to push too hard — both for fear of us simply ignoring them altogether (in effect withdrawing the acceptance that their opinion matters to the legitimacy of the activity) and because they want at least “parts” of it.

The best place to be, then, for both sides, is roughly in the middle that Bellinger stakes out.  (Note that nothing I’ve said here should be attributed to him; these are my views on the negotiation stakes.)  Meaning that we have reasons to talk with our allies at length and in detail, in private and public, to try and persuade them to our views, and to persuade them that genuflecting to their advocacy and NGO groups will be worse for them than accepting our space to act, insofar as we can give a plausible interpretation of law.  Plausibility is the central touchstone for international law in relations among states, finally; we and they don’t have to agree, only to agree that our several interpretations are within the ballpark of acceptability.  It might involve alterations of our practice; it might not.

This will never satisfy the non-governmental advocates or the academics, of course. They have no skin in the game and hence can always hold out for the most extreme position with only an indirect cost in credibility.  In the case of drones, in which even some of the advocates are belatedly realizing that the weapon is indeed more precise and sparing of civilians, ignoring the NGO advocates as profoundly mistaken has spared a human tragedy in collateral damage over the long run.  But the striking thing about the interstate negotiations among allies is that they don’t have to reach a conclusion — an agreement — and probably won’t.  An acceptance of the plausibility of each side’s position and an agreement to continue discussion around alternatives that are considered plausible is sufficient.

Occasionally, I see assertions that disclosing certain private information about someone — for instance, details of their sex lives, medical history, or financial affairs — would be tortious, even if the disclosure is in a private conversation. (See, for instance, this comment, and this dissent from a Supreme Court opinion.)

But generally speaking, the disclosure of private facts tort does not apply to such private disclosures. (Of course, the disclosure might in some cases be a breach of a professional duty, such as that of a lawyer, a doctor, or a psychotherapist, or a breach of nondisclosure agreement; but those are different matters.) As the Restatement (Second) of Torts § 652D puts it (emphasis added),

The form of invasion of the right of privacy covered in this Section depends upon publicity given to the private life of the individual.... “Publicity[]” ... means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. The difference is not one of the means of communication, which may be oral, written or by any other means. It is one of a communication that reaches, or is sure to reach, the public.

Thus it is not an invasion of the right of privacy, within the rule stated in this Section, to communicate a fact concerning the plaintiff’s private life to a single person or even to a small group of persons. On the other hand, any publication in a newspaper or a magazine, even of small circulation, or in a handbill distributed to a large number of persons, or any broadcast over the radio, or statement made in an address to a large audience, is sufficient to give publicity within the meaning of the term as it is used in this Section. The distinction, in other words, is one between private and public communication.

Illustrations:
1. A, a creditor, writes a letter to the employer of B, his debtor, informing him that B owes the debt and will not pay it. This is not an invasion of B’s privacy under this Section.
2. A, a creditor, posts in the window of his shop, where it is read by those passing by on the street, a statement that B owes a debt to him and has not paid it. This is an invasion of B’s privacy.
3. A, a motion picture exhibitor, wishing to advertise a picture to be exhibited, writes letters to a thousand men in which he makes unprivileged and objectionable statements concerning the private life of B, an actress. This is an invasion of B’s privacy.

In this respect, the disclosure tort differs from defamation law — a false and defamatory statement to one person (even a friend or close family member) might be slanderous or libelous. But if the statement is true but reveals private and non-newsworthy information about a person, it is not a disclosure of private facts unless it “reaches, or is sure to reach, the public.”

Naturally, especially in this era of Facebook, that line can be quite mushy; for instance, when would a post on a Facebook page that is readable by 1000 “friends” qualify as something that “reaches, or is sure to reach, the public”? (Illustration 3 — which is based on a real case — doesn’t fully dispose of this, partly because it might be influenced by the fact that the letters are about a famous person and are thus especially likely to be further publicized, and partly because the letters were sent to total strangers, rather than just to friends or “friends.”) What about a page readable by 100 “friends”? Still, it’s clear that certain communications, such as conversations or even e-mails that are unlikely to be broadly forwarded, aren’t covered by the tort.

The matter might be different in a few states, if they have a statute or a court decision that departs from the Restatement approach (which itself is based on the decisions of past cases). I know of one such exception: In Rhode Island, a statute defining the disclosure tort requires not “publicity” but “publication,” and Rhode Island courts have held that this means communication to one other person suffices to trigger the tort. It’s possible, then, that in Rhode Island it might be actionable for one friend (or family member) to tell another true things about a third’s love life, medical problems, and the like. But in most states, this would not be so.

None of this is intended to endorse the propriety of the tort, which I have criticized on First Amendment grounds; I only mean to explain what the tort actually covers.

That’s the question posed today over at Scotusblog. It’s the premiere of the Scotusblog Community, which aims to encourage discussions by Scotusblog readers. To start the ball rolling, Scotusblog solicited short comments (up to 2 paragraphs) from Erwin Chemerinsky, Dawn Johnsen, Ilya Shapiro, Stephen Presser, Adam Winkler, and me, among others.

My answer to what the Supreme Court should do is:

The Court should re-affirm Gibbons v. Ogden, which followed the original understanding of the interstate commerce clause: “commerce” means mercantile exchange, plus some closely-related subjects, such as navigation. Among the subjects which are not interstate commerce, according to Gibbons, are “health laws of every description.” The Court should then over-rule South-Eastern Underwriters (1944), which broke from long-established precedent, and declared that even purely intrastate insurance was interstate commerce. Because South-Eastern claimed to be following original meaning, the modern Court should simply point out that none of the original sources cited by the South-Eastern opinion remotely support the contention that all forms of insurance are “commerce.”
 
Finally, Congress should explain that the Necessary and Proper clause underscores the unconstitutionality of the mandate. As McCulloch v. Maryland demonstrated, the original meaning of the clause affirms the Congress may exercise powers which are incidental to an enumerated power. The power to compel a private person to engage in commerce with a private company is not an incident of, or lesser than, the power to regulate voluntary interstate commerce. Further, government-created monopolies were, in the Founding Era, a paradigmatic example of improper government action. Therefore, it is not constitutionally “proper” to force citizens to spend their money on a government-favored Big Insurance oligopoly.

The rationale for the above can be found in my articles Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, 121 Yale Law Journal Online (forthcoming 2011)(with Gary Lawson); “Health Laws of Every Description”: John Marshall’s Ruling on a Federal Health Care Law, 12 Engage 49 (June 2011) (with Robert G. Natelson); Commerce in the Commerce Clause: A Response to Jack Balkin, 109 Michigan Law Review First Impressions 55 (2010) (with Natelson); and Health insurance is not ‘commerce’: A single erroneous Supreme Court precedent from 1944, South-Eastern Underwriters, should be overturned, National Law Journal, March 28, 2011 (with Natelson) (available on Lexix/Nexis).

Since Scotusblog is trying to get people to comment on its own website, I’m not opening comments on this post, and I encourage you to share you thoughts over at Scotusblug.

A delicious-looking recipe from my friend Kristina Johnson (Former Chef).

Wednesday, the Court will be hearing Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, an important religious freedom case.

Federal and state antidiscrimination laws ban discrimination in employment based on race, ethnicity, religion, sex, age, disability, and other characteristics (some of which vary from state to state), such as sexual orientation and marital status. But many religious groups hold beliefs that limit the ministry in certain ways: Catholics exclude women. Some groups insist that their ministers be of a particular race. Some might reject gays and lesbians as ministers. Catholics discriminate based on marital status. (Of course, nearly all religious groups also insist that ministers belong to the religion, but there’s a special statutory antidiscrimination law exemption that expressly allows religious groups to discriminate based on religion when choosing any employee, minister or not.)

Moreover, even when there are no such official belief-based requirements — for instance, when someone claims he was rejected as an applicant for a job as minister because of race, and the church denies that race was a factor in the decision — a discrimination claim by a minister may require courts to evaluate things that courts shouldn’t be evaluating, such as a person’s fitness for the ministry. After all, if someone claims he was discriminated against based on (say) race, a standard way of showing such discrimination is that he was treated worse than people of another race who were equally or less qualified. Relatedly, one could argue that the hiring decision can’t be plausibly explained by the application of hiring criteria other than race. Yet the Establishment Clause has generally been read as barring excessive government entanglement with religious matters, and deciding whether a would-be minister is more or less qualified than others would indeed likely lead to such excessive entanglement, because ministerial qualifications are an inherently religious matter. Likewise, deciding whether the defendant’s explanation for the decision is pretextual similarly requires secular evaluation of which religious decisions are reasonable, something courts generally can’t do. “We prayed, and we feel God told us to hire one applicant rather than another” is an argument that’s hard for secular courts to reasonably evaluate.

More broadly, a church’s decision about who is to speak for it is a foundation for the church’s ability to promulgate its teachings the way church members or leaders want to see them promulgated. For all these reasons, courts have generally held that churches have a constitutional right to discriminate based on any criteria they wish — not just religion, but also race, sex, and other criteria — in hiring ministers or employees who have at least some minister-like duties. See, e.g., EEOC v. Catholic Univ. of Am., 83 F.3d 455 (D.C. Cir. 1996); Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164 (4th Cir. 1985).

The main question in Hosanna-Tabor is how far this “ministerial exception” to antidiscrimination law extends to employees who aren’t primarily ministers in the sense of people who perform the sacraments or preach sermons. In Hosanna-Tabor itself, the employee was a schoolteacher who taught some religious subjects (but not exclusively religious subjects), and who was herself a member of the clergy, in a job category where clergy members were preferred as teachers (though the church at times hired non-clergy for the task as well). [UPDATE: To quote the petitioner’s brief, “Perich taught religion classes four days a week, led students in prayer three times a day, led students in daily devotional exercises, and attended a school-wide chapel service with her students every week.”]

I was happy to sign on to an amicus brief in the case that proposed a rather broad definition of the ministerial exception; it’s the amicus brief that is chiefly on behalf of the National Council of the Churches of Christ, the Baptist Joint Committee for Religious Liberty, the Queens Federation of Churches, the National Association of Evangelicals, and the Christian Legal Society, drafted by Profs. Rick Garnett, Tom Berg, Carl Esbeck, as well as K. Hollyn Hollman and Melissa Rogers of the Baptist Joint Commitee and Kim Colby of the Christian Legal Society. If you’re interested in the case, have a look at the brief, or at the other briefs, collected by SCOTUSblog. (For part of my thinking about why the ministerial exception is sound even after Employment Division v. Smith, see this section of my A Common-Law Model for Religious Exemptions article, though I think one could supplement that with arguments based on the Establishment Clause and the freedom of expressive association.)

UPDATE: I originally said, in the second paragraph, “As I understand it, some streams of Judaism insist that a rabbi be ethnically Jewish, and exclude converts to Judaism,” but it now appears that I was mistaken, so I deleted the sentence. The removal of this example doesn’t change the analysis.

Ruth Wedgwood sends this announcement along:

International Law Weekend 2011 — the world-famous gathering of the migrating flock of international lawyers for the fall season — begins on Thursday night, October 20, 2011, at the Association of the Bar of the City of New York, 42 West 44th Street, NYC, and continues at 9 a.m. on Friday and Saturday, October 21–22, at Fordham Law School, at 140 West 62nd Street, NYC.

This year’s theme is “International Law and National Politics.” Continue reading ‘International Law Week, October 20–22’ »

This Wednesday, I will be giving a talk at NYU Law School on the Tea Party Movement and Popular Constitutionalism. The talk will be at 11 AM in Vanderbilt Hall, Room 202. NYU Professor Roderick Hills will comment on my presentation, and there will also be questions from the audience until around 12:30 or so.

I previously wrote about the Tea Party as a popular constitutionalist movement in this article. In my talk, I will explain why the Tea Party qualifies a popular constitutionalist movement despite the fact that that concept has previously been used mostly to describe movements on the political left and assess its main strengths and weaknesses. Like previous popular constitutionalist movements, the Tea Party has not avoided such problems as the impact of widespread political ignorance.

I will also suggest why its impact is likely to be a net positive on balance — including from the standpoint of the mostly left of center advocates of popular constitutionalism, a point I first developed in the article linked above. Given that it was inevitable that the combination of Obama’s policies and a deep recession would produce a right-wing populist reaction, it is far better that it has produced a movement primarily focused on limiting federal power and spending than one focused on racial resentment or xenophobia, as was often the case in previous American history and in many European countries today. In addition, the movement’s emphasis on limiting federal power could potentially increase democratic accountability in government — a central objective of many advocates of popular constitutionalism.

UPDATE: In this 2010 post, I discussed claims that the Tea Party’s real agenda is racism.

Thanks to Eugene for inviting me to guest blog this week about my new book 100 Plus: How the Coming Age of Longevity Will Change Everything, From Careers and Relationships to Family and Faith.

As you can see from the chart above, humanity has made great progress in extending average human life span, and much of that progress happened in the last century and a half.  But that is only the beginning.  New technologies will continue the extension at an even faster rate.

In my book, 100 Plus, I make the argument that, because of advances in regenerative medicine and biotechnology, it won’t be long before humans will be able to extend their health spans to over 100 years.  Notice that I don’t simply use the term “life span” but instead discuss “heath spans.”  That is because health will be extended along with life.

How will this longevity revolution affect society?  That is the subject of the rest of the book.  I take the position that a health span of 150 years is achievable and base the rest of the social, economic, and cultural analysis on that horizon.

Biology has now become an engineering project.  Just as computer programs have 1s and 0s, so too does the human body have a code, made out of the ACTGs of DNA.  Now that the human genome has been sequenced, work continues on figuring out how to reverse engineer the human body.

The field of regenerative medicine is incredibly exciting and one of the most promising techniques so far goes by the name of tissue engineering, which offers the ability to build new organs for those that have worn down, like a heart or a lung.  Already, scientists have grown and successfully transplanted human organs, such as bladders and windpipes, for patients in need.

Human hearts and lungs have not been completed yet, but promising work in lab animals suggests it will be possible. How long will it be before patients will be going to the hospital for brand new hearts?  It’s hard to predict, since science can always run into problems and there will be a number of safety tests.  I’m confident it will happen within my lifetime (I’m 39 years old).  Once we have a large enough parts list, we will be able to keep humans healthy by replacing parts as they wear down, just like we do with vintage cars that are in tip top shape.

Another important technique for human repair is called gene therapy, which is the process of changing one’s genes by adding new DNA or turning off parts of existing DNA.  While this field stalled about a decade ago because of the deaths of children who were part of early trials, procedures have become better over time as researchers learn more about how to more safely introduce new DNA into the body.  One of the problems with gene therapy is that it can be difficult to insert a new gene exactly where scientists want it to go, since altered viruses are often used as carriers for new genetic information.

The techniques for making changes have now become more precise, producing positive results in both human trials and animal models.  One of the most recent successes in this area was announced by Dr. Carl June’s team at the Abramson Cancer Center at the University of Pennsylvania.  By removing a patient’s own T-cells, making some changes using gene therapy, and then introducing them back into the patient’s bodies, scientists were able to cure leukemia in two out of three patients.  The NYT story on the success is here.

Cancer treatment is not the only area in which there have been some big successes for gene therapy, it has also helped restore sight in blind children and may eventually lead to a cure for AIDS.  In lab animals, gene therapy has slowed down aging and allowed the animals to live longer in a younger state. The pathways that the scientists tweaked on these lab animals are similar to ones that humans possess. There are other technologies and ideas for repairing humans, such as the SENS plan, which you will find detailed in my book.

Tomorrow, I will post about how this revolution will affect the economy.

Some people categorically criticize the passive voice, a criticism that Prof. Geoffrey Pullum (of Language Log) has long and colorfully condemned; his latest salvo is an excellent post in the Chronicle of Legal Education’s Lingua Franca blog on the subject. (For my thoughts on the subject, see here.)

In case you missed it, I had a column in Friday’s WSJ, “The Dick Durbin Bank Fees,” describing the unintended consequences of price controls on debit card interchange fees.

Rumors of an Arrested Development movie have now expanded to a movie and a mini-series.

I knew Will Arnett was talented but he still seems unusually good at multi-tasking.

From today’s Order List released by the Supreme Court:

10–11054 MURPHY, CHARLES M. V. KOLLAR-KOTELLY, JUDGE, USDC DC
Because the Court lacks a quorum, 28 U.S.C. §1, and since the qualified Justices are of the opinion that the case cannot be heard and determined at the next Term of the Court, the judgment is affirmed under 28 U.S.C. §2109, which provides that under these circumstances “the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court.” The Chief Justice, Justice Scalia, Justice Kennedy, Justice Thomas, Justice Ginsburg, Justice Breyer, and Justice Alito took no part in the consideration or decision of this petition.

I suspect this case has an interesting backstory, even if there’s not much to the petitioner’s legal claims.

Roger Alford at Opinio Juris observes the paucity of cases involving international law issues in the new Supreme Court term, speaking of First Monday.  There are two — outlined at the link — an immigration case and the “birthplace on passport” case that has occasionally surfaced here at Volokh. In broader international or foreign relations law terms, they don’t amount to much.  I imagine, however, that looming not so far down the road is a new Supreme Court case on the Alien Tort Statute, given the circuit split on some important ATS questions.  Meanwhile, this term:

The Supreme Court has an incredibly thin diet for international law cases this term. No blockbuster cases, no major questions of international law, no issues addressing executive power in the foreign affairs arena. Thin, thin, thin.

Just putting in a plug for an upcoming one-day conference here at Temple Law School on October 22, organized by my colleague Nancy Knauer, on “Aging in the US: The Next Civil Rights Movement?” The goal of the Symposium, in the words of its organizers, “is to move the national conversation surrounding aging beyond the traditional elder law topics of estate planning, benefit eligibility, and health care financing and ask whether elder rights should be the next civil rights movement.” There will be a host of speakers and presenters, including Nina Kohn from Syracuse Law School and M.T. Connolly of Lifelong Justice, and it should be an interesting day.

Information regarding the conference and registration is available at www.law.temple.edu/aging.

In case you haven’t read enough Supreme Court OT 2011 term previews, here’s the one I wrote for NRO: “Supremely Consequential.”

28 U.S.C. § 2 states:

The Supreme Court shall hold at the seat of government a term of court commencing on the first Monday in October of each year and may hold such adjourned or special terms as may be necessary.

Happy First Monday, everyone.

The Institute of Medicine, part of the National Academy of Sciences, has studied the problem of how to distribute antibiotics in the event of an anthrax attack.  It’s a big problem, because, as the study confirms, the antibiotics have to be in people’s hands (mouths, really) within 48 hours of an attack.  And it may take the government almost that long to realize we’ve been attacked.  So, the scientists had a choice between recommending (1) a Big Government solution, in which the government stockpiles the antibiotics, flies them to the affected area when needed, and relies on the near-bankrupt Postal Service to get them to the right people in time, or (2) letting people have (or buy) Medkit packets of antibiotics to store at home for an emergency.

The study was funded by HHS, so you won’t be surprised to discover that the Institute recommended (1) a Big Government solution.  The main reason it gives is that you and the rest of the public are just too bone stupid to be trusted with antibiotics.  But to spare your feelings, the Institute puts it this way:  letting you have antibiotics raises “the potential for inappropriate use in routine settings (e.g., using the antibiotics to treat a cold) and the potential for widespread inappropriate use in response to a distant anthrax attack, a false alarm caused by a nonanthrax white-powder event, or some other public health emergency for which antibiotics are not indicated.”

But, really, “too bone stupid” is pretty much what they meant.

This is the National Academy of Sciences, of course, so they’ve got scientific evidence of our stupidity.  Like, for example, the Center for Disease Control gave more than four thousand people in St. Louis special antibiotic medkits to hold for an emergency.  Months later, they went back and collected them.  They counted the people who had engaged in “inappropriate use in routine settings.” And they found, uh, four.  Not four percent, four people.  That’s one-tenth of one percent, last time I looked.

Apparently we weren’t as dumb as the National Academy of Sciences would like to think, so they declared that this science wasn’t settled, in fact it wasn’t even worth thinking about.  Why?  Because participants were promised a $25 gift certificate if they completed the study. According to the National Academy’s report, this promise of a gift card so tantalized the unwashed masses that they pretended to be less stupid than the scientists know we really are. So the study didn’t count.

Once all that nasty unpredictable science was out of the way, the National Academy of Sciences was free to say what it wanted to say all along:  No antibiotics for you.

But the gob-smacking foolishness of relying on government distribution of antibiotics in an emergency was simply too obvious for even the Institute of Medicine and the National Academy of Sciences to completely ignore.  So they encouraged the distribution of some medkits to some people.

Which people, you ask?

Do you really have to?  The study tentatively recommends that the life-saving kits be issued to “some first responders, health care  providers, and other workers that support critical infrastructure, as well as their families.” Apparently medical workers aren’t too stupid to live, according to the Institute of, uh, Medicine.  And neither are government workers – those postal workers, the cops that will have to accompany them, and anybody else in government who’s smart enough to call himself a first responder (want to bet that includes the Governor?).

And their families too, of course.  We’ll need to repopulate, after all.

Have I been unfair to the authors?  It’s possible.  I went through the report fast, and with mounting blood pressure.  So I welcome corrections in the comments. Or jokes about government health care, as you choose.

The more important question is:  What can you do to protect yourself from this astonishing feat of policy malpractice?

Here, at least, I can praise the report, because it acknowledges, a bit grudgingly, an option I highly recommend:  Ask your doctor for a prescription for antibiotics and stash them in a cool, dark,dry place (not your warm, light, wet bathroom).  If your doctor balks, you can quote this passage from the report:

Personal stockpiling might also be used for certain
individuals who lack access to antibiotics via other timely
dispensing mechanisms (for example, because of their
medical condition and/or social situation) and who de–
cide—in conjunction with their physicians—that this is
an appropriate personal strategy. This is allowed under
current prescribing practice and would usually be done
independently of a jurisdiction’s public health strategy
for dispensing medical countermeasures.

Of course you’re supposed to persuade your doctor that you’d “lack access to antibiotics via other timely dispensing mechanisms.” I suggest reading him the part about how the Postal Service will carry out the distribution.

If that doesn’t convince him, maybe you need a smarter doctor.

Photo credit: http://www.flickr.com/photos/hukuzatuna/2536746395/

I’m delighted to report that Sonia Arrison will be guest-blogging this coming week about her new book, 100 Plus: How the Coming Age of Longevity Will Change Everything, From Careers and Relationships to Family and Faith. “Humanity is on the cusp of an exciting longevity revolution,” Sonia’s site says. “The first person to live to 150 years has probably already been born.” I certainly hope she’s right, and I much look forward to her posts.

In the latest George Washington Law Review, Justice Stephen Breyer has an interesting reflection on writing his first law review article when he was a professor at Harvard in the late 1960s. It’s an interesting essay on what he was trying to say and why he wrote that article, but I was struck most by what Breyer says about Harvard’s tenure standards forty years ago. The article was published as The Uneasy Case for Copyright, and here’s Justice Breyer on the experience of writing it:

Those were the days when you just had to write one article [to receive tenure], and actually, I was the first person to whom Harvard ever applied the requirement that you have to write at least one. Erwin Griswold, who had been the Dean of Harvard Law School, had the theory that he knew which people were geniuses. If he approved of them, they would certainly do good work over time, and therefore they had to write nothing. After a while, however, people realized that was not such a wise idea, because someone has to push you to write something so that you see that you can do it. And probably everybody here has gone through that stage, and that’s not a pleasant stage. “How can I possibly write an article?” Everyone goes through that. Oh, they all think that I can, but they do not really understand.

Well, there it was, and moreover, they had a very exalted idea of themselves at Harvard and so it had to be a pretty good article. And I didn’t know a thing about copyright—although that’s exactly the kind of thought I couldn’t dwell on, because it would lead to the temptation to give up.

. . . . One of the less pleasant days of my life was after I’d handed [Dean] Derek Bok my 200-page manuscript to give to the Appointments Committee. He came back and said, “You know, when you write something”—and I didn’t like the tone of his voice—“sometimes it’s worth going over it again before handing it in. Marshal your arguments,” he said, “and use the most interesting points, but do not put in all the less interesting ones.” And that was very good advice. So what ended up being published as The Uneasy Case for Copyright was the expurgated version of something that had all kinds of rambling in it.

The world in which Harvard raised tenure standards by requiring law professors to write a single article to receive life tenure — and in which the author saw writing the one article as an enormous challenge — is hard to image today. These days, candidates generally need to have written at least one major article just to get a tenure-track teaching job at any school.