The Volokh Conspiracy

Today the U.S. Court of Appeals for the D.C. Circuit decided Electronic Information Privacy Center v. National Security Agency. Here’s the summary from the beginning of Judge Brown’s opinion for the court.

Plaintiff-appellant Electronic Privacy Information Center (“EPIC”) filed a Freedom of
Information Act (“FOIA”) request with the National Security Agency (“NSA”) seeking disclosure of any communications between NSA and Google, Inc regarding encryption and cyber security. NSA issued a Glomar response pursuant to FOIA Exemption 3, indicating that it could neither confirm nor deny the existence of any responsive records. EPIC challenged NSA’s Glomar response in the district court, and the parties cross-moved for summary judgment. The district court entered judgment for NSA, and EPIC appealed. We affirm.

UPDATE: BLT reports on the case here.

The Guardian (UK) reports (see also MSNBC Cartoon Blog and other sources):

Mahmoud Shokraye was put on trial after an Iranian MP, Ahmad Lotfi Ashtiani, took offence to a cartoon he drew of the parliamentarian in Nameye Amir, a city newspaper in Arak, the capital of Iran’s central province of Markazi….

In the cartoon, Ashtiani is depicted in a football stadium, dressed as a footballer, with a congratulatory letter in one hand and his foot resting on the ball. The MP’s forehead has a dark mark, said to be the sign of a pious Shia Muslim, caused (supposedly) by frequent prostration during prayer. The cartoon contains little exaggeration and Ashtiani’s forehead has a prayer mark in reality.

Shokraye drew Ashtiani following widespread criticism in Iranian society towards a number of politicians who have been accused of interfering in the country’s sports….

Speaking to an Iranian journalist, Esmail Kowsari, a member of the parliamentary committee on national security, defended the sentence: “[A cartoonist] should be persecuted if the cartoon is not ordinary and ridicules someone … Any crime has its own punishment, including lashing, imprisonment or being fined.”

Note that “persecuted” might (or might not) be a mistranslation. Thanks to Opher Banarie for the pointer.

The Chronicle of Higher Education has an interesting article on responses to a forthcoming book I recently blogged about, Brian Tamanaha’s Failing Law Schools. The Chronicle article is behind a paywall, so to read it you need to click here and then click on the link.

The article includes this defense of the status quo from law prof Michael Olivas:

Michael A. Olivas, a professor of law at the University of Houston and a past president of the Association of American Law Schools, says relaxing accreditation standards to allow more-diverse education models, which Mr. Tamanaha calls for, could lead law schools in the direction of for-profit institutions like the University of Phoenix, which critics contend shortchange students.

As Mr. Olivas puts it, the result could be “the Phoenix-ation of law schools, churning students through, having a contingent and transient faculty, and none of the institutional investment in the broad roles of legal education.”

If so, what is wrong with that? Some law schools may follow that approach, but others won’t. And students ultimately will be the ones to decide which balance of approaches is best, as their decisions where to enroll will determine which schools remain viable. I don’t see why we wouldn’t want students to have that choice. “Institutional investment in the broad roles of legal education” is expensive. If students can get a good legal education without it, I don’t know why they shouldn’t be able to choose to do that.

Thanks to Brian Leiter for the link; Brian has his own thoughts here.

A pleasant story of the law being fixed as a result of public criticism — much of it online — just as in Arizona last month:

Last year, the Tennessee Legislature enacted a statute that essentially banned the online posting of images that cause “emotional distress” “without legitimate purpose.” As I blogged on June 6, the law made it a crime to

(4) Communicate[] with another person or transmits or displays an image in a manner in which there is a reasonable expectation that the image will be viewed by the victim by [by telephone, in writing or by electronic communication] without legitimate purpose:

(A) (i) With the malicious intent to frighten, intimidate or cause emotional distress; or

(ii) In a manner the defendant knows, or reasonably should know, would frighten, intimidate or cause emotional distress to a similarly situated person of reasonable sensibilities; and

(B) As the result of the communication, the person is frightened, intimidated or emotionally distressed.

The law therefore applied not just to one-to-one communication, but to people’s posting images on their own Facebook pages, on their Web sites, and in other places if (1) they were acting “without legitimate purpose,” (2) they caused emotional distress, and (3) they intended to cause emotional distress or knew or reasonably should have known that their action would cause emotional distress to a similarly situated person of reasonable sensibilities. So,

1. If you had posted a picture of someone in an embarrassing situation — not at all limited to, say, sexually themed pictures or illegally taken pictures — you’d likely have been a criminal unless the prosecutor, judge, or jury concludes that you had a “legitimate purpose.”
2. Likewise, if you had posted an image intended to distress some religious, political, ethnic, racial, etc. group, you too could have been sent to jail if a government decisionmaker thought thinks your purpose wasn’t “legitimate.” Nothing in the law required that the picture be of the “victim,” only that it be distressing to the “victim.”
3. The same would have been true even if you hadn’t intend to distress those people, but reasonably should have known that the material — say, pictures of Mohammed, or blasphemous jokes about Jesus Christ, or harsh cartoon insults of some political group — would have “cause[d] emotional distress to a similarly situated person of reasonable sensibilities.”
4. And of course the same would have applied if a newspaper or TV station had posted embarrassing pictures or blasphemous images on its site.

After — I can’t say whether because of — the June 6 post, there was a good deal of criticism of the new law, and it looks like the Tennessee Legislature listened. Last week, it passed (unanimously in the Senate, 76-14 in the House) and sent to the Governor a bill that basically limited the statute to threats; if the Governor signs the bill, then the law would be limited to making it a crime to

(4) Communicate[] with another person or transmits or displays an image without legitimate purpose with the intent that that the image is viewed by the victim … [when the communicator]:

(A) Maliciously intends the communication to be a threat of harm to the victim; and

(B) A reasonable person would perceive the communication to be a threat of harm.

This seems to be limited to speech that fits within the “true threats” exception to First Amendment protection (at least if “harm” is reasonably interpreted as a threat of illegal physical harm or vandalism, rather than a threat of, say, boycott or social ostracism, which are generally constitutionally protected).

So it looks like public criticism of speech restrictions, even ones that seem to target supposed “bullying” or “harassment,” has worked in this instance; I’m very glad to see that. For more on the change in the law, see this TN Report article posted yesterday.

Yesterday the President told ABC News that he believes same-sex couples should be able to get married. So far so good. He further told ABC that he believes this is an issue that should be left to the states which are “arriving at different conclusions at different times.” I have nothing to complain about here, as this is my position as well. I believe in recognition of same-sex marriage, but also believe that this is the sort of question entrusted to state governments under our constitutional system, and that, as with many questions of social policy about which I have strong preferences, different states are and should be free to come to different conclusions on the matter. I also believe that as more states elect to recognize gay marriage (particularly insofar as this is done by legislatures and ballot initiatives, rather than by courts) many of those who are currently uneasy with the idea of gay marriage will learn they have nothing to fear and opposition to gay marriage will slowly melt away.

The problem with the President’s position is that it cannot be reconciled with the Administration’s stance on the constitutionality of the Defense of Marriage Act. According to Attorney General Eric Holder, he and the President concluded that the constitutionality of legal distinctions based upon sexual preference cannot be defended. In their view, because DOMA precludes federal recognition of same-sex marriages, it violates the constitutional guarantee of equal protection under the Fifth Amendment. Further, according to Holder’s statement, they concluded that no “reasonable” constitutional argument could be made in DOMA’s defense. Yet if DOMA is unconstitutional under equal protection, which applies to the state and federal governments equally, then how could any state law barring recognition of same-sex marriages survive constitutional scrutiny? In other words, while the President says he believes that states should be allowed to reach “different conclusions at different times” on the question of same-sex marriage, the administration’s legal position is that a state’s refusal to treat opposite-sex and same-sex couples alike is unconstitutional. So while the President may say he’d like to leave this question to the states, that’s an option his administration has already taken off the table.

[NOTE: Edited the post to make clear that equal protectioon is guaranteed as against the federal government through the Fifth Amendment and as against the states through the 14th Amendment, but the standard is the same.]

UPDATE: Here’s the full ABC transcript, in which the President suggests he was also influenced by a concern that DOMA federalizes a traditional state concern. Lyle Denniston comments here, suggesting the President’s legal position does not threaten state laws. Calvin Massey disagrees here. Massey is right.

The official statements from the Justice Department do not raise any federalism concerns and rest the conclusion that DOMA is unconstitutional (and that no reasonable arguments may be made in its defense) on the basis that distinctions based on sexual preference are subject to intermediate scrutiny, that there are no important government interests in maintaining a traditional definition of marriage, and that animus may have contributed to DOMA’s passage. While there are other arguments that could challenge DOMA without threatening state laws (such as those suggested by Will Baude), the Adminsitration’s arguments, were they to prevail against DOMA, would be the death knell for state laws as well. If a federal law supported by Senators Biden, Dodd, Reid and Wellstone — and signed into law by President Clinton — were impermissibly tainted by anti-gay animus, it’s hard to see how state laws barring same-sex marriage would not be as well.

NASA’s James Hansen can be a bit unhinged when he talks about climate change. Although one of the world’s more prominent climate scientists, he has a penchant for selectively presenting only the most apocalyptic global warming scenarios and adopting unduly inflammatory rhetoric, as when he compared coal-laden trains, aka “death trains,” to the railcars carrying Jews to Nazi concentration camps or suggested that energy company CEOs are guilty of “crimes against humanity.”

Yet whatever his faults, James Hansen’s central climate policy recommendation is a sound one. For years he has called for a simple and straightforward approach: A revenue-neutral carbon tax and an end to fossil energy subsidies. As he writes in today’s NT:

We need to start reducing emissions significantly, not create new ways to increase them. We should impose a gradually rising carbon fee, collected from fossil fuel companies, then distribute 100 percent of the collections to all Americans on a per-capita basis every month. The government would not get a penny. This market-based approach would stimulate innovation, jobs and economic growth, avoid enlarging government or having it pick winners or losers. Most Americans, except the heaviest energy users, would get more back than they paid in increased prices. Not only that, the reduction in oil use resulting from the carbon price would be nearly six times as great as the oil supply from the proposed pipeline from Canada, rendering the pipeline superfluous, according to economic models driven by a slowly rising carbon price.

But instead of placing a rising fee on carbon emissions to make fossil fuels pay their true costs, leveling the energy playing field, the world’s governments are forcing the public to subsidize fossil fuels with hundreds of billions of dollars per year. This encourages a frantic stampede to extract every fossil fuel through mountaintop removal, longwall mining, hydraulic fracturing, tar sands and tar shale extraction, and deep ocean and Arctic drilling.

This is the sort of policy that could reduce greenhouse gas emissions and provide incentives for innovation (particularly if combined with things like prizes) without requiring the erection of a vast new bureaucracy or imposing substantial new burdens on the economy.

Conservatives have called for shifting the tax burden from labor and wealth creation to consumption, and that is precisely what Hansen’s proposal would do. Further, as shown by the experience of other jurisdictions, implementing a carbon tax of this sort is far less complicated than trying to erect a Waxman-Markey-type cap-and-trade scheme. A basic carbon tax would also be less susceptible (on the margin) to special interest rent-seeking than a cap-and-trade scheme, particularly if emissions allowances are to be doled out to reduce the economic impact of the regime. For a variety of reasons, excise taxes tend not to be carved up by interest groups the way income tax schemes are.

I’ve also argued that a revenue-neutral carbon tax would be easier — or at least no less difficult — to enact than a cap-and-trade scheme. Both involve increasing the cost of energy, but the revenue-neutral carbon tax would do so in a simpler, less-regressive, more transparent, and less economically burdensome way, and could not be characterized (a la Waxman-Markey) as implementing expansive government control over the energy sector for the benefit of special interests. Of course, we won’t know whether this is true until political leaders have the guts to push for this sort of policy.

I wish that environmental activists would follow Hansen’s lead (rather than, say, Krugman’s) and embrace this approach as a superior alternative to increased regulation or Waxman-Markey-style cap-and-trade. Alas, many Greens seem more interested in expanding government power than reducing greenhouse gas emissions. I also wish more forward-looking Republican leaders would embrace this sort of policy and recognize how it’s consistent with limited government principles. Alas, few on the right take environmental policy seriously enough to do more than bash bureaucrats. So I guess I’ll be wishing for awhile.

For those who lack the interest or patience to read my forthcoming full-blown law review article in the Washington & Lee law review, I have a shorter adapted version in latest issue of the Federalist Society’s journal Engage on the economics and regulation of bank overdraft protection.  Thanks to Nick Tuszynski of the Mercatus Center for his help with this.

President Obama’s recent announcement that he supports gay marriage is yet another addition to the short but distinguished list of issues on which the President and I agree.

Previous entries include creating a playoff system for college football, allowing gays and lesbians to serve openly in the military, ending the home mortgage interest deduction for high-income taxpayers (though I would go further and abolish the deduction for everyone), the president’s authority to forego defending federal statutes he believes to be unconstitutional, the legality of the targeted killing of Osama Bin Laden, the end of the NBA lockout, and that the Obama health care plan’s individual mandate is not a tax. Based on the above, it seems that the biggest areas of overlap between our worldviews are gay rights and sports. But the list is not completely exhaustive, since there are a few other issues where we also agree, but I don’t blog about them because they are too far outside my areas of interest and expertise.

UPDATE: A somewhat overwrought critique of this post takes me to task for supposedly being unaware of numerous largely noncontroversial things that Obama and I agree on, such as that genocide is evil or that Hitler and Stalin were great villains. I’m well aware of these areas of agreement, thank you. But this post was about issues on which Obama and I agree, which means questions that are controversial in modern American politics. The fact that Obama and I agree on many things on which there is an overwhelming national consensus isn’t relevant to that. We also agree that the Earth is round, and that the Sun rises in the East.

Today the President of the United States explicitly endorsed the idea that gay couples and their families should have the freedom to marry.  He had already done so as a practical matter by refusing to defend the constitutionality of what he carefully mislabelled the “Defense Against Marriage Act” and by publicly opposing state constitutional amendments against marriage.  But in the past he had said he personally opposed gay marriage because “God is in the mix.”  Jon Rauch has some thoughts about the Obama evolution toward support:

What happened? Harry Truman was fond of quoting Mark Twain: “When in doubt, do right. This will gratify some people and astonish the rest.” Now and then, politicians have a “goddammit” moment. Obama’s position had clearly shifted on the issue (who was he kidding with his talk of having “evolved” but being unwilling to make news?), and there was never going to be a better time to make the switch than now–at least not while he is certain to be a non-lame-duck president.

So Obama decided it’s worth a roll of the dice to make history. Which is what he has done.

As of his announcement, favoring gay marriage is now fully, indisputably, and permanently a mainstream political position. All hint of weirdness or stigma is gone. It is also now the stated position of one of the two major political parties (only 16 years after President Bill Clinton, a Democrat, signed the anti-gay-marriage Defense of Marriage Act). Precisely because the issue is unlikely to decide the election this year, November’s result will not revoke the issue’s promotion in status even if Obama loses. Though gay couples have not achieved full legal equality, gay marriage, as an issue, has achieved full political equality. That is a landmark in the ongoing marriage debate.

Rauch goes on to speculate that Obama’s statement might influence the Justices should the Prop 8 case or DOMA litigation reach them.  That’s possible, but I’m dubious. This Supreme Court has not been shy about disagreeing with the Executive Branch.  For goodness’ sake, Justice Alito delivered a visual advisory opinion to him during the State of the Union speech days after the Citizens United decision. I think they’ll decide the issue independently of what President Obama, or President Romney, personally thinks about it. The bigger constitutional landmark was the Obama Justice Department’s conclusion that DOMA is unconstitutional because it cannot meet the heightened scrutiny that the DOJ argued is applicable to discrimination based on sexual orientation.

The rest of what Rauch says, however, seems spot on to me.  It’s easy to be cynical about everything politicians do, and I yield to few people in my skepticism of officeholders.  I spoke to many Minnesota lawmakers last year who voted to place an anti-gay marriage limitation on the ballot, yet privately expressed their misgivings about it. President Obama himself has a tortured public history on the issue, moving from support when he ran for state office in 1996, to opposition when he ran for U.S. Senate in 2004 and president in 2008, to support now.  It’s obvious that he privately supported gay marriage for years, so his evolution was for public consumption.

Nevertheless, watching him closely on TV, I had a hard time mustering cynicism about the president’s words.  He must know his public support is not obviously a net political plus for him in November.  And his description today of his discussions with his family, his experience of talking to young adults (including young Republicans) for whom opposition to gay marriage is baffling, and his understanding of the hardships faced by gay families, including those headed by openly gay servicemembers, seemed genuine.  His words echoed the conclusions now reached by about half of the American people.  On this issue, as on others, the president may be leading from behind.  But it matters when presidents lead, as when Lyndon Johnson declared civil rights a “moral issue” and announced on national television, “We shall overcome.”  The president’s endorsement won’t matter to people who’ve made up their minds to oppose marriage for gay couples, but many others are listening.

An article by Will Tuell (who apparently is or was a local town selectman) in the Downeast Coastal Press reports that State Senator Cynthia Dill — seemingly the leader in the Democratic primary, though not necessarily a strong competitor to Independent candidate and former Governor Angus King — endorses Court-packing:

On the issue of whether the Supreme Court needs to be reformed, Dill, a civil rights lawyer with experience in the federal court system, called for major changes reminiscent of those sought by President Franklin Delano Roosevelt. …

Dill said she approves of President Obama’s picks and would consider expanding the number of justices on the Court if decisions she sees as unfavorable continue to be passed down. “I think there’s promise, but if we continue to get these poor decisions, I’m not opposed to adding justices. The Constitution doesn’t say we have to have nine justices, and if these nine can’t figure it out and keep producing 5-4 decisions that are crippling our country, let’s throw a few more good justices on the Court and straighten things out.”

I should note that I see nothing inherently wrong in the political branches pushing back against the Court, whether through ordinary nominations, through constitutional amendments, or possibly even through proposals to limit the Court’s jurisdiction (though I’m skeptical about the latter). But Court-packing strikes me as a pretty poor idea: It’s nearly certain to lead to partisan tit-for-tat should this be done by one party, and the consequences of such tit-for-tat are likely to hurt the judicial system with little compensating benefit, either for Democrats or Republicans. In any case, I thought I wanted to note that such a proposal was being discussed, though of course I realize that it’s politically very unlikely to succeed.

The full article, reprinted with the editor’s permission, is below:

Continue reading ‘Leading Democratic Primary Candidate for Senator from Maine Calls for Court-Packing’ »

That is, with respect to his support for same-sex marriage, telling ABC’s Robin Roberts:

Over the course of several years as I have talked to friends and family and neighbors when I think about members of my own staff who are in incredibly committed monogamous relationships, same-sex relationships, who are raising kids together, when I think about those soldiers or airmen or marines or sailors who are out there fighting on my behalf and yet feel constrained, even now that Don’t Ask Don’t Tell is gone, because they are not able to commit themselves in a marriage, at a certain point I’ve just concluded that for me personally it is important for me to go ahead and affirm that I think same sex couples should be able to get married.

Having recently married — albeit in the legally boring kind of wedding that raises no constitutional issues — I suspect that Obama sees this as an excellent way to jumpstart the economy.

The news is here, announcing that Ward Farnsworth is the new Dean. Congrats to Ward. Although if guestblogging at the VC leads to Deanships, we may start to have a hard time attracting guest bloggers in the future.

The trouble is that it appears that he does indeed have a criminal record. The complaint, in Richey v. Walker (Ga. Super. Ct. May 3, 2012) is based on these statements on the Georgia Politics Unfiltered blog:

1. “Rashad Richey, the person in charge of making political decisions for Georgia Democratic Party, has a history of making poor personal decisions.”
2. “The money raised from this event will help keep Rashad Richey the Recidivist on the Democratic payroll for a long time.”
3. “We now know what Ali Rashad Richie used all that cash for … Bail money.”
4. “So, a criminal is in charge of directing Democratic politics across Georgia.”
5. “Ali Rashad Richie, political director for Georgia’s Democratic Party is a jail bird. Rashad Richie is a recidivist.”

The complaint seems to be arguing that this is false because “recidivist” means someone who has committed more than one felony, and “Plaintiff is not a convicted Felon.”

But WSB-TV reports that, “Richey had a series of misdemeanor convictions for criminal trespass and simple battery. Channel 2 Action News has now learned Richey also had a felony conviction for aggravated assault in 1998 but was sentenced as a first-time offender. When he completed his sentence, the felony was wiped from his record.” GPB News reports that Richey’s “attorneys confirm that Richey has been arrested for a variety of misdemeanor charges, including driving with a revoked license, battery, obstructing an officer and family violence.” (Note that this is confirmation of the arrest record, and not of a conviction record, but the WSB-TV story states there was a conviction record, and nothing in the GPB News story denies that.) A quick criminal history search of my own revealed Richey’s aggravated assault conviction, and another site posts a 2007 arrest report based on a separate incident. Nor have I seen any indication that WSB-TV is mistaken about the series of misdemeanor convictions.

So Richey’s only argument seems to be that calling someone with several misdemeanor conviction and one felony conviction that was expunged (just because it was a first offense, and not on the grounds that Richey had been exonerated) a “recidivist” is recklessly or knowingly false because “recidivist” is reserved for people with multiple felony convictions. But I don’t think that the term is limited to felonies in ordinary language, and I don’t think reasonable readers of the blog would have so understood the word; rather, a typical lay reader would likely see it as simply accusation of multiple criminal offenses — an accusation that appears to be true.

I should note that if the statement “[w]e now know what Ali Rashad Richie used all that cash for … Bail money” would have reasonably been seen as a charge of embezzlement of funds, that might be libelous. But I didn’t see any reference to that in the Complaint, which suggests that in context it was likely seen just as a dig at his criminal record, rather than a serious accusation of misappropriation of funds.

Oh, and according to WSB-TV, “Richey’s attorneys believe the series of blogs are borderline harassment and constitute a form of cyberbullying.”

From an editorial in the Greene County Republican Committee newsletter:

The ultimate task for the people is to remain vigilant and aware ~ that the government, their government is out of control, and this moment, this opportunity, must not be forsaken, must not escape us, for we shall not have any coarse but armed revolution should we fail with the power of the vote in November ~ This Republic cannot survive for 4 more years underneath this political socialist ideologue.

A truly appalling call for violence, and a truly appalling repudiation of basic American democratic principles. The author seems willing to start a bloody war with his fellow Americans, a war that he’s certain to lose — since by hypothesis he’d be fighting against the majority who reelect the President, coupled with the armed forces who would doubtless follow the lawful orders to suppress any such revolution — and that, if seriously prosecuted, would costs the lives of a vast number of his fellow citizens.

And why? Because, by hypothesis, President Obama has been reelected? If you don’t like who gets elected, persuade your fellow Americans so they elect your party instead of the other (as in fact they have in most elections over the past 35 years). Or persuade them to elect your party to one or both Houses of Congress, to counteract the President’s power (which in fact happened just two years before). That’s the American way.

Yes, I agree that in some circumstances armed revolution can be justified. But the likely costs of such revolution in a country such as the modern U.S. range from the horrific to the catastrophic. Partly because of this, it is very rare for armed revolution to be justifiable — even under circumstances that are much more extreme than the ones we face now — in a democracy where peaceful means (winning elections) are available. And in any event, all that bloodshed can’t be justifiable if it’s likely to be futile, as it certainly would be, and if it’s over policy differences that, important as they might be, cannot warrant bloody civil war.

I realize that this author is just an editor of a county party newsletter. And I quite doubt that more than a few Greene County Republicans really believe this nonsense. (The newsletter says, “Content of newsletter does not reflect the opinion of the Republican Party whole or in part, all contents offered are individual,” and in this instance I’m sure it’s true.) But I’ve heard enough people say variants of something like this that I wanted to speak out publicly about it. And I certainly hope that the Greene County Republican Party Committee does the same, and makes sure that such calls for violence don’t appear in its publications again.

UPDATE: Commenter redheadedbuddha reports that the site now says — apparently referring to the controversy —

~ all this rip roar Media hype….. is all about…..being armed with the voices of We the people…..you must arm yourself with a spoken word to be heard ~ just as the founding fathers spoke out during the revolution……So, Yes, arm yourself with many voices for the people and by the people….as your constitution allows….should the vote fail ….this November or at anytime……

~ Being Armed with Your Voices of We The People is The Only Way if Any Vote Should Fail No Matter Who You Vote for ~

” your voice being heard is the best method “

Yeah, that’s what “armed revolution” means — armed with words, “just as the founding fathers spoke out during the revolution.” Right.

The New York Times has an article describing how the TransCanada corporation is using eminent domain to forcibly acquire property to build the Keystone oil pipeline:

When the TransCanada men first came, Julia Trigg Crawford said, they were polite. They offered money. Seven thousand dollars to let the Keystone XL pipeline cross her family’s 600-acre farm on its way from the Alberta tar sands to the refineries on the Gulf Coast….

Ms. Crawford, 52, who serves as the farm’s manager, called the rest of the family. They agreed to sign. “We thought that at least if we signed we’d have some say in what happened,” she said.

They called the TransCanada representative. “He told us that if we could come up with a contract that worked for both parties, they wouldn’t condemn the land,” Ms. Crawford said…..

“I fully expected them to counter,” she said. “There were about five or six things we wanted, and we would have been happy to take one or two.”

Then, she said, TransCanada “went full radio silence.” The Crawfords never heard back from them — until October, when they got a letter saying their land had been condemned and a lease awarded to TransCanada.

But as the Crawfords discovered, when voluntary compensation agreements are not reached, Texas law allows certain private pipeline companies to use the right of eminent domain to force landowners to let pipelines through. This was true even for TransCanada, which has yet to get State Department permission to bring the Keystone XL across the Alberta border.

The article notes TransCanada’s claim that it has acquired the overwhelming majority of the property they needed for the pipeline through voluntary land sales. This may be true, but it is misleading. Like the Crawfords, these owners agreed to sell their land under the threat of eminent domain if they refused. Some might well have refused to sell for the price offered by the firm if eminent domain were off the table. The voluntariness of land sales undertaken in the shadow of threats of condemnation is dubious at best.

Back in 2006, co-blogger Jonathan Adler and I published an article explaining the environmental dangers of allowing the use of eminent domain for private economic development projects, as the Supreme Court ruled in the Kelo case. At the time, some environmentalists pooh-pooed the article, and one group even declared our article the environmental “outrage of the month” (it must have been a slow month for actual pollution). Ironically, as Jonathan explained here, several environmental groups are now trying to use post-Kelo reform laws restricting economic development takings to block the Keystone takings.

Such efforts are unlikely to succeed in Texas. As I described in this article, Texas is one of many states that have passed post-Kelo reform laws that pretend to constrain economic development takings without actually doing so. They might have a better chance in one of the other states through which the pipeline must pass.

Even if Kelo had been decided the other way, some pipeline takings might still be constitutional. The Constitution permits takings for “public use,” and even under the traditional definition of public use advocated by Kelo’s critics, condemnations for public utilities or common carriers that the general population has a legal right of access to are often permissible. However, pipeline takings would be subject to tougher constitutional constraints than under Kelo, and the government would at least have to prove that the pipelines in question really are public utilities or common carriers open to the general public.

Regardless, as Jonathan points out, the controversy over Keystone has led “some environmentalists… to recognize that allowing the government to seize private property for the purpose of encouraging private economic development can facilitate environmentally undesirable projects.”

Google commissioned me to write this White Paper (“First Amendment Protection for Search Engine Search Results“), so I thought I’d pass it along. I wrote the paper as an advocate, and not as a disinterested academic, but I hope some of our readers might find it interesting nonetheless. Here is the Introduction, though of course it isn’t intended to be persuasive on its own — the supporting arguments are in the rest of the paper:

Once, the leading sources to which people turned for useful information were newspapers, guidebooks, and encyclopedias. Today, these sources also include search engine results, which people use (along with other sources) to learn about news, local institutions, products, services, and many other matters. Then and now, the First Amendment has protected all these forms of speech from government attempts to regulate what they present or how they present it. And this First Amendment protection has applied even when the regulations were motivated by a concern about what some people see as “fairness.”

Google, Microsoft’s Bing, Yahoo! Search, and other search engines are speakers. First, they sometimes convey information that the search engine company has itself prepared or compiled (such as information about places appearing in Google Places). Second, they direct users to material created by others, by referencing the titles of Web pages that the search engines judge to be most responsive to the query, coupled with short excerpts from each page. Such reporting about others’ speech is itself constitutionally protected speech.

Third, and most valuably, search engines select and sort the results in a way that is aimed at giving users what the search engine companies see as the most helpful and useful information. (That is how each search engine company tries to keep users coming back to it rather than to its competitors.) This selection and sorting is a mix of science and art: It uses sophisticated computerized algorithms, but those algorithms themselves inherently incorporate the search engine company engineers’ judgments about what material users are most likely to find responsive to their queries.

In this respect, each search engine’s editorial judgment is much like many other familiar editorial judgments:

• newspapers’ daily judgments about which wire service stories to run, and whether they are to go “above the fold”;
• newspapers’ periodic judgments about which op-ed columnists, lifestyle columnists, business columnists, or consumer product columnists are worth carrying regularly, and where their columns are to be placed;
• guidebooks’ judgments about which local attractions, museums, stores, and restaurants to mention, and how prominently to mention them;
• the judgment of sites such as DrudgeReport.com about which stories to link to, and in what order to list them.

All these speakers must decide: Out of the thousands of possible items that could be included, which to include, and how to arrange those that are included? Such editorial judgments may differ in certain ways: For example, a newspaper also includes the materials that its editors have selected and arranged, while the speech of DrudgeReport.com or a search engine consists almost entirely of the selected and arranged links to others’ material. But the judgments are all, at their core, editorial judgments about what users are likely to find interesting and valuable. And all these exercises of editorial judgment are fully protected by the First Amendment.

That is so even when a newspaper simply makes the judgment to cover some particular subject matter: For instance, when many newspapers published TV listings, they were free to choose to do so without regard to whether this choice undermined the market for TV Guide. Likewise, search engines are free to include and highlight their own listings of (for example) local review pages even though Yelp might prefer that the search engines instead rank Yelp’s information higher. And this First Amendment protection is even more clearly present when a speaker, such as Google, makes not just the one include-or-not editorial judgment, but rather many judgments about how to design the algorithms that produce and rank search results that — in Google’s opinion — are likely to be most useful to users.

Of course, search engines produce and deliver their speech through a different technology than that traditionally used for newspapers and books. The information has become much easier for readers to access, much more customized to the user’s interests, and much easier for readers to act on. The speech is thus now even more valuable to customers than it was before. But the freedom to distribute, select, and arrange such speech remains the same.

We will discuss this in detail below, both as to the First Amendment generally (Part III) and as to the intersection of First Amendment law and antitrust law (Part IV). We focus in this submission on Google search results for which no payment has been made to Google, because they have been the subject of recent debates; we do not discuss, for instance, the ads that Google often displays at the top or on the right-hand side of the search results page.

In R. v. Belghar (New South Wales Ct. Crim. App. Apr. 11, 2012), Ismail Belghar is being prosecuted for attempted murder of his sister-in-law (labeled “complainant” in the opinion). The government alleges:

On a day in October 2009, the complainant, her sister Hanife and a female friend went to the beach without the respondent’s knowledge. When Hanife returned home, the respondent demanded to know where she had been and whom she had been with. When she told him, the respondent telephoned the complainant and said, “You slut, I’m going to kill you. I’m going to fuck you up. I’m going to find you and kill you. You fucking slut, how dare you take my wife to the beach.”

[Two months later, Belghar ran into complainant at a shopping mall.] The respondent walked out of the shopping centre and towards the complainant with a key in his right hand. He stood in front of her and put his face against hers and said, “I’m going to kill you. I’m going to fucking kill you.” The respondent slapped the complainant once with an open right hand to the left side of her face. The respondent then bent down, put his arms around the complainant’s legs and waist and picked her up from the railing. He carried her to the railing on the boundary of the car park (“the external railing”) and held her over it to the extent that she could see the roadway below. The complainant was crying uncontrollably and believed she was going to die.

Complainant’s brother interceded and saved her. Belghar was arraigned for trial, and asked for a trial without a jury, but the government insisted on a jury. Under Australia law, when a defendant waives trial by jury and a prosecutor disagrees, “the court may make a trial by judge order if it considers it is in the interests of justice to do so”; and the trial judge reasoned (emphasis added),

[T]he attitude of the [respondent] regarding the sister-in-law victim is based on a religious or cultural basis and in light of the fact that there has been adverse publicity regarding persons who hold extreme Muslim faith beliefs in the community, I am of the view that the apprehension by the [respondent] that he may not receive a fair trial is a reasonable apprehension….

The reason for the animosity between the applicant and the victim as suggested by the Crown will be that the victim took the applicant’s wife to the beach where the applicant’s wife displayed her body because she was seen by the applicant to be sunburnt in her certain places on her body and this was abhorrent to the applicant by virtue of either his strict religious beliefs or by virtue of the fact that he believed he had absolute authority over the wife as opposed to the wife’s family having some authority over her….

In this particular case there is direct reference to aspects of the Muslim faith which may cause a jury to take their mind off the central issue which is a single issue, that is, what was the intent of the applicant at the point in time that he came into contact with the victim at the Broadway shopping centre….

In this particular case it really relates insofar as the Crown case is concerned as to his state of mind, and the rage created by his either faith (sic) or the culture that he had absolute control over the wife….

I feel that the application should be granted … and I do so on the basis that the Crown has not been able to demonstrate to me any prejudice that the Crown faces or any prejudice that the community faces in relation to the granting of the application.

The appeals court disagreed (emphasis added) (some paragraph breaks added):

Continue reading ‘Australian Juries and Muslim Defendants Accused of Attempted Honor Killings’ »

Lyle Denniston has an interesting post on SCOTUSBlog discussing whether the Court will reconsider its judgment in Nken v. Holder because the decision was based, in part, on erroneous factual premises.

The Justice Department last month told the Court that it had provided faulty information in that case about U.S. immigration policy, but it suggested that the Court need not do anything about it. Now, however, a group of immigrants’ rights lawyers have asked the Court to actually modify the opinion after the fact, so that lower courts do not rely upon the error, with a negative impact on immigrants’ rights.

The Court has formally accepted the Justice Department’s letter expressing regret over the development, as well as the lawyers’ letter filed last Friday asking for a change in the ruling. That letter, though, was not filed for a party in the case — the immigrant Jean Marc Nken or the federal government — but rather on behalf of several immigrants’ rights groups who took part in the Nken case three years ago as amici — not a direct role. The Department has already made clear it sees no need for a modification, and Nken may have no reason to seek it, since in the meantime he has been granted asylum to stay in the U.S.

When a factual error upon which the Court had relied in Kennedy v. Louisiana was disclosed, and both the SG’s office and Louisiana sought rehearing, the Court altered the wording of its opinion, but not the result. with Nken, on the other hand, the time for rehearing has passed, but the consequences of the Court’s error may be significant.

for the immigrants’ rights lawyers, they have told the Court that this is not just a matter of procedural inconvenience or nicety. Various lower courts have relied upon the incorrect statement in the Court’s Nken opinion to deny an immigrant’s plea to remain in the U.S. until that individual has a chance to challenge deportation in court, they said. Moreover, the attorneys’ letter said, there is reason to doubt even the Justice Department’s assurances to the Court that the government now has a policy that it will allow a deported non-citizen to return to the U.S. if he or she wins a challenge to being sent away. “There is still substantial agency discretion” about that outcome, the letter argued.

What’s more, the letter said, the government can give no assurance that, in the future, some other administration may rely on what the Court had said in Nken about the right of return, and thus feel justified in refusing a non-citizen’s re-entry. The government, it added, has made no commitment “to a permanent, legally binding policy.”

It will be interesting to see how the Court responds.

Today the U.S. Court of Appeals for the Sixth Circuit issued its opinion in Maker’s Mark Distillery v. Diageo North America. The opinion begins:

Justice Hugo Black once wrote, “I was brought up to believe that Scotch whisky would need a tax preference to survive in competition with Kentucky bourbon.” Dep’t of Revenue v. James B. Beam Distilling Co., 377 U.S. 341, 348-49 (1964) (Black, J., dissenting). While there may be some truth to Justice Black’s statement that paints Kentucky bourbon as such an economic force that its competitors need government protection or preference to compete with it, it does not mean a Kentucky bourbon distiller may not also avail itself of our laws to protect its assets. This brings us to the question before us today: whether the bourbon producer Maker’s Mark Distillery, Inc.’s registered trademark consisting of its signature trade dress element—a red dripping wax seal—is due protection, in the form of an injunction, from a similar trade dress element on Casa Cuervo, S.A. de C.V.’s Reserva de la Familia tequila bottles. We hold that it is. The judgments of the district court in this trademark infringement case are AFFIRMED.

The folks at the Heartland Institute are mad, and that seems to have driven them a little mad. For years environmental activists have compared climate skeptics and those who raise questions about the likelihood of a warming-induced apocalypse to Holocaust deniers and worse. In 1989, then-Senator Al Gore famously compared those who downplayed the climate threat to those who ignored Hitler’s rise and NASA’s James Hansen compared coal-bearing trains to the rail cars headed to Nazi crematoria, drawing a moral equivalence between the use of coal and the Holocaust. Think Progress also trumpeted the “climate denial” views of Norwegian terrorist Andrew Breivik and claimed he was “inspired” by mainstream climate skeptics.

Then, earlier this year, Heartland was the target of directed smear campaign after the Pacific Institute’s Peter Gleick surreptitiously obtained internal Heartland documents by impersonating a board member. Gleick anonymously distributed the purloined documents together with a forged memorandum purporting to provide further evidence of Heartland’s internal dealings. Progressive bloggers trumpeted the materials, and the forged memo in particular, as evidence of Heartland’s sinister machinations. While it seems likely that Gleick himself forged the memo (or knows who did) Heartland may have difficulty seeking legal redress for his actions. I posted on what some call “Fakegate” here and here.

Instead of trying to retain the moral high ground by defending the substance of its views, Heartland took adopted the tactics of its most unhinged critics, purchasing a billboard comparing those who believe in global warming to the Unabomber. According to Heartland, this was to be the first in a series featuring famous “global warming alarmists,” including Osama Bin Laden, Fidel Castro and other “rogues and villians.” Heartland explained the campaign this way:

what these murderers and madmen have said differs very little from what spokespersons for the United Nations, journalists for the “mainstream” media, and liberal politicians say about global warming. They are so similar, in fact, that a Web site has a quiz that asks if you can tell the difference between what Ted Kaczynski, the Unabomber, wrote in his “Manifesto” and what Al Gore wrote in his book, Earth in the Balance.

The point is that believing in global warming is not “mainstream,” smart, or sophisticated. In fact, it is just the opposite of those things. Still believing in man-made global warming – after all the scientific discoveries and revelations that point against this theory – is more than a little nutty. In fact, some really crazy people use it to justify immoral and frightening behavior.

The response to this ad was quite negative from friend and foe alike, prompting Heartland to pull the ad within 24 hours. Heartland now claims the billboard was an “experiment.”

“This provocative billboard was always intended to be an experiment. And after just 24 hours the results are in: It got people’s attention.

“This billboard was deliberately provocative, an attempt to turn the tables on the climate alarmists by using their own tactics but with the opposite message. We found it interesting that the ad seemed to evoke reactions more passionate than when leading alarmists compare climate realists to Nazis or declare they are imposing on our children a mass death sentence. We leave it to others to determine why that is so.

Well lots of folks didn’t get the joke, including many of Heartlands friends and funders. Several speakers have withdrawn from Heartland’s annual climate conference, including Rep. James Sensenbrenner and IPCC critic Donna Laframboise. (More reactions here and here.) E&E News also reports the publicity stunt is costing Heartland financial support, and could prompt staff departures too.

Even if the billboard was initially designed as an “experiment,” it was a stupid idea. The implicit argument of the billboards is completely unjustifiable. So what if some tyrants and whackjobs believe in global warming. This is like arguing someone should eat meat because Hitler was a vegetarian. Lots of evil, crazy, and stupid people believe plenty of sensible things (and lots of brilliant people have embraced nutty ideas). Heartland’s justifiable anger at the vitriol spewed by its most extreme or unhinged opponents does not justify sinking to their level. If the folks at Heartland believe there is a double-standard — and I believe there is, even though I also believe anthropogenic global warming is a real problem — then they should explain why. There’s no need to provoke and offend countless commuters and others by suggesting that a believing in global warming makes one like the Unabomber. It was a know-nothing message, and not just because most so-called “skeptics” actually believe in global warming too, and only reject apocalyptic climate projections. I expect this sort of stunt from extreme animal rights groups, not those who purport to want an open and honest scientific debate. However angry the Heartland folks may be with some of those on the other side, this stunt was unjustified and unwise — and by all accounts it looks like it will cost Heartland dearly.

Big-name literary scholar Stanley Fish has an interesting column on The Hunger Games, the popular series of science fiction novels by Suzanne Collins which has recently been made into a highly successful movie:

A couple of weeks ago my daughter visited from California. She brought with her the first volume of Suzanne Collins’s “The Hunger Games.” She read it in short order and drove to the local Barnes & Noble to get the other two. She finished them in a day, and then passed all three on to me. I devoured them and passed them on to my wife, who also read them in record time.

What accounts for three overeducated adults being so caught up in the story of a teenage girl — Katniss Everdeen — who lives in a dystopian future ruled and controlled by the decadent and cruel denizens of “The Capitol”?

Many have commented on the excellence of the pacing (you’re always on the hook) and on the inventiveness with which Collins devises the obstacles — both animate and inanimate, and a few things in between — that challenge Katniss and her fellow contestants as they play a gladiatorial, televised game whose point is to defeat one’s opponents by killing them and so be the last person standing.

But the technical skills Collins displays are only a part of the explanation of the novels’ power. The other part is the thematic obsession hinted at by the title: just what is it that the characters, and by extension the readers, hunger for? On the literal level the answer is obvious. Kept at a near-starvation level by their rulers, the inhabitants of the nation of Panem (bread) hunger for food, and one of Katniss’s virtues is that as an expert archer she can provide it.

Food, however, is a metaphor in the trilogy for another kind of sustenance, the sustenance provided by an inner conviction of one’s own worth and integrity….

One of the tributes names that as the goal he desires more than survival. Peeta Mellark, in love with Katniss since the moment he laid eyes on her (the moment when he gave her bread), says to her, “I want to die as myself … I don’t want them to change me in there.”

Fish’s emphasis on the characters’ inner struggle for “authenticity” contrasts with the more politically oriented interpretations of the series developed by other commentators. I previously blogged about political and moral themes in The Hunger Games here, here, and here. I also discussed the subject in a recent podcast for the Institute for Humane Studies.

The New York Times has an interesting article on the political attitudes of New York City’s Russian immigrant community. Unlike most New Yorkers and especially most New York Jews (the Russian immigrant community is overwhelmingly Jewish), they tend to support the GOP over the Democrats:

To many Russian and Ukrainian immigrants, the cornucopia in the shops along Brighton Beach Avenue — pyramids of oranges, heaps of Kirby cucumbers, bushels of tomatoes with their vines still attached and a variety of fish, sausages and pastries — seems like an exuberant rebuke of the meager produce that was available to them when they lived in the Soviet Union.

This contrast helps explain a striking political anomaly: immigrants from the former Soviet Union are far more apt to vote for Republicans than are most New Yorkers, who often drink in Democratic Party allegiance with their mothers’ milk and are four times as likely to register as Democrats than as Republicans….

One reason these voters tend to support Republicans is that they see them as more ardent warriors against the kind of big-government, business-stifling programs that soured their lives in the Soviet Union. Their conservative stances on issues like taxes and Israel seem to outweigh their more liberal views on social issues like abortion.

Tatiana Varzar came to the United States in 1979, at age 21, from the Ukrainian seaport of Odessa. She worked as a manicurist and then opened a small restaurant on the boardwalk that grew into Tatiana Restaurant, a spacious magnet for foodies who like a whiff of salt air and a sea view with their pirogen…..

“I am what I am because of capitalism,” Ms. Varzar said, “and Republicans are more capitalistic.”

Obviously, this article is not the first to point out the stark contrast between Russian Jewish political attitudes and those of most native-born Jews. I blogged about the phenomenon here, here, and here, including links to previous commentary on the issue by others.

The Times article does, however, provide a good summary of the major reasons why Russian Jewish voters support the GOP: a combination of a preference for free markets and a relatively hawkish foreign policy. The Times is also correct to point out that Russian Jewish immigrants tend to vote for the GOP despite the fact that most of them are socially liberal (they tend to be highly secular, pro-choice, and generally left of center on most social issues, with the important exception of gay rights, where many immigrants brought with them the homophobia that is rampant in Russia itself). For most Russian immigrants, social issues are not as salient as economics and foreign policy. In many of these respects, as the Times notes, Russian immigrants’ political preferences are similar to those of immigrants from other communist and former communist nations, such as Cuba and Vietnam.

Obviously, as with voters from other groups, Russian immigrants’ attitudes are affected by political ignorance. Many may be unaware of the massive extent to which the GOP has sometimes deviated from support for free markets, especially in the Bush years. At least in my experience, many of them also overestimate the dovishness of the Democratic Party (though I hasten to add that I haven’t seen scientific polling data on this). That said, there is little doubt that, at least in New York – which has one of the most economically liberal Democratic parties in the nation – the GOP is significantly less economically statist than the Democrats.

Because New York is so overwhelmingly Democratic, the GOP leanings of Russian voters make little difference in statewide elections. They do, however, as the Times points out, sometimes make the difference in local and congressional races, which are more closely contested.

For now, the political clout of the Russian Jewish community is severely limited by its small numbers and by its concentration in areas (Boston, New York, Silicon Valley) that are overwhelmingly Democratic. Most Russian immigrants also lack the wealth and political connections that are more common among native-born Jews (though there are some striking exceptions, such as Google founder Sergey Brin). However, as Russian Jews continue to grow as a proportion of the total Jewish population and continue to increase their income and influence, they could have an effect on internal Jewish community politics. There are now some 700,000 Russian Jewish immigrants in the US, about 12% of the total Jewish population. And that percentage may well grow, if only because Russian immigration is continuing (though at a reduced rate), while the native-born Jewish population has a low birth rate.

Russian Jews have also begun to have an impact in the academic and intellectual worlds. Harvard economist Andrei Shleifer and the VC’s own Eugene Volokh are among the best known of a growing contingent of Russian Jewish immigrant academics who have had a significant impact on their fields. In sharp contrast to most other academics, Russian immigrant scholars in the humanities and social sciences are overwhelmingly conservative or libertarian (more commonly the latter), perhaps to an even greater extent than the community as a whole.

UPDATE: I suppose I should add that I do not mean to suggest that most Russian Jewish immigrants are consistent economic libertarians. Very few voters are rigorously consistent adherents to any ideology, and Russian Jews are no exception. They are, however, on average more sympathetic to free markets than the average voter – especially in liberal areas such as New York City.

UPDATE #2: Neither the article nor I distinguish rigorously between former Soviet Jews from Ukraine and those from Russia, although obviously these are now two different countries, and Ukrainian nationalists are not fond of Russia. Most Ukrainian Jewish immigrants are Russian-speakers and identify far more with Russian language and culture than Ukrainian. However, it’s worth noting that non-Jewish Ukrainian immigrants (like my wife’s mother’s family) who arrived since the rise of communism also tend towards the political right.

The New Orleans Times Picayune reports the White House denied the Department of Interior’s Office of Inspector General access to e-mails and communications about White House revisions to a report Interior Secretary Ken Salazar relied upon to justify a moratorium in oil drilling in the Gulf of Mexico. The story begins:

A senior federal investigator says he was denied access to a White House official and full email records as he tried to determine whether a BP oil spill report was intentionally edited to erroneously suggest outside experts supported the Obama administration’s deepwater drilling moratorium. The experts, in fact, did not endorse the moratorium the administration ordered after the 2010 spill. The White House and Department of Interior later said the mistake was inadvertent, a result of an early-morning edit that moved some material from the body of the report to the executive summary.

Although some e-mails were provided eventually, the IG’s office was never able to validate their authenticity or completeness, the investigator claims. He also alleges the White House did not allow the IG to interview a White House official involved in editing the report. An official in the IG’s office told the Times Picayune that his office “does not have authority to compel” White House cooperation with its investigation.

From In the Matter of Ismailoff, 2007 WL 7670254 (N.Y. Sur. Ct. Feb. 1) (payment required for access), which was just posted on Westlaw in the last day or two:

This is a proceeding commenced by the grantor of an inter vivos trust for a determination that the trust is the product of undue influence.

Esther Ismailoff (grantor) executed an agreement with her four children (trustees) creating an irrevocable inter vivos trust….

Article XXIV of the agreement provides:

In the event that any dispute or question arises with respect to this Declaration of Trust, such dispute or question shall be submitted to arbitration before a panel consisting of three persons of the Orthodox Jewish faith, which will enforce the provisions of this Declaration of Trust and give any party the rights he is entitled to under New York law. This Declaration of Trust shall be construed in order to effectuate the intent of the parties and the parties admit that they have performed all the necessary requirements for this Declaration to be valid under Jewish law. The panel will have the authority to file their decision with the Court under the New York Arbitration Law. The parties have made a Kinyan Siddur with a garment that may be used for that purpose in order to effectuate this Declaration of Trust.

… The grantor argues that the parties intended to empanel a “Beth Din” (rabbinical court). However, the agreement specifically provides for enforcement of the rights of the parties under New York law. In addition, in the absence of any reference in the agreement to a “Beth Din,” the First Amendment to the United States Constitution prohibits the appointment of a religious tribunal ( Sieger v Sieger, 297 AD2d 33 [2d Dept 2002]).

The agreement provides for the selection of “three persons of the Orthodox Jewish faith.” The most common method of selecting a tripartite panel is for each contending party to select one arbitrator and for the two arbitrators to select a third. Written submissions of the parties suggest that the criteria applied to determine whether a proposed arbitrator is “orthodox” would be in dispute. That issue could never be resolved by the court.

The Establishment Clause of the First Amendment prohibits a civil court from resolving issues concerning religious doctrine and practice (Presbyterian Church v Hull Church, 393 U.S. 440 [1969]; Kelly v Garuda, _____ AD3d _____ [2d Dept 2007]; 2007 WL [60334]; Sieger v Sieger, 297 AD2d 33 [2d Dept 2002])…. Although the provision requiring orthodox arbitrators is unenforceable, the parties are free to select arbitrators, who in their own judgment, meet the religious requirement.

The court then provided for appointment of arbitrators in the normal way that arbitrators are appointed (each side selects one arbitrator and the two arbitrators select a third). This strikes me as quite right, because secular courts are not allowed to examine would-be arbitrators’ supposed religious bona fides, and decide who really is Orthodox enough. On the other hand, if the trust had called for the appointment of arbitrators by some named organization, such as the Beth Din of America, the court likely would have enforced that provision, even if the organization only appointed orthodox Jews — the court then wouldn’t have had to decide who’s Orthodox enough, but could have enforced the terms of the trust without any religious decisions on the court’s own part.

For an earlier case in which a similar issue might have arisen, but didn’t have to be decided, see In re Aramco Servs., where the contract provided that it was to be interpreted under Saudi law, and arbitrated under Saudi arbitration rules and regulations that apparently call for the arbitrators to be Muslims or Saudi citizens.

Forbes runs this item:

Nine Dangerous Things You Were Taught In School

Be aware of the insidious and unspoken lessons you learned as a child. To thrive in the world outside the classroom, you’re going to have to unlearn them.

Dangerous things you were taught in school:

1. The people in charge have all the answers. That’s why they are so wealthy and happy and healthy and powerful — ask any teacher.

2. Learning ends when you leave the classroom. Your fort building, trail forging, frog catching, friend making, game playing, and drawing won’t earn you any extra credit. Just watch TV.

3. The best and brightest follow the rules. You will be rewarded for your subordination, just not as much as your superiors, who, of course, have their own rules.

4. What the books say is always true. Now go read your creationism chapter. There will be a test.

5. There is a very clear, single path to success. It’s called college. Everyone can join the top 1% if they do well enough in school and ignore the basic math problem inherent in that idea.

6. Behaving yourself is as important as getting good marks. Whistle-blowing, questioning the status quo, and thinking your own thoughts are no-nos. Be quiet and get back on the assembly line.

7. Standardized tests measure your value. By value, I’m talking about future earning potential, not anything else that might have other kinds of value.

8. Days off are always more fun than sitting in the classroom. You are trained from a young age to base your life around dribbles of allocated vacation. Be grateful for them.

9. The purpose of your education is your future career. And so you will be taught to be a good worker. You have to teach yourself how to be something more.

I’ve always been quite skeptical of this sort of generic iconoclasm, for three related reasons: (1) It debunks categorical assertions that the debunkees actually rarely make in that categorical a way, and that in case are obviously wrong if made so categorically. (2) This debunking is rarely useful, because just as “always” assertions are rarely right where practical matters are involved, “not always” assertions are rarely useful. (3) The things being debunked are actually often pretty good rules of thumb for daily life, which are right more often than not; friendly amendments pointing out the exceptions can be helpful (especially if they are specific rather than generic), but categorical attempts at debunking miss the general wisdom in the rules.

For instance, behaving yourself is often more important than getting good marks. Sometimes even knowing when to question the status quo and when to follow it is important, as is knowing when to at least temporarily follow conventional wisdom (especially in an environment where error can cause a lot of damage) instead of coming up with your own approaches. But beyond that, “behaving yourself” in the sense of learning how to operate productively within an organization of two or more people, in a way that maximizes results while minimizing needless friction with your colleagues, superiors, and subordinates, and needless pushback from people who see you as misbehaving is a tremendously important life skill in a vast range of occupations. Even geniuses need it, and ordinary people who will have to work closely with others and will rarely have the “he’s rude and a pain in the neck, but he’s brilliant” excuse need it even more.

As to the purpose of education, schools rarely teach that the only purpose of your education is your future career (especially since many literature and history teachers realize that such an argument will go only so far with their students). But throughout your life you’ll want access to goods and services, and unless you try to force people to give them to you, you’ll need to offer something in return; in our society, many of the things you offer require specialized knowledge, which a good education will help give you. And while college is certainly not a very clear, single path to success, and it won’t get you to “the top 1%,” for many people it’s a pretty important part of the path to careers that are both more financially and intellectually rewarding.

Likewise, the best and brightest follow the rules the great majority of the time, and we take it for granted because it’s “just following the rules.” They follow rules about how to do good science, how to write well, how to craft effective arguments, how to operate within organizations, how to deal with other people’s understandings of what is their property or institutional bailiwick, and so on. Of course, they realize that to succeed in really big and innovative ways they need to do more than follow the rules. “Always follow the rules, and nothing more” would be lousy advice. But “learn the rules well, because they are the repository of important wisdom accumulated through the efforts of many smart people, and then think creatively about how to go beyond the rules or even break some rules” is good advice.

What’s true of the rules is also true of the books and of the messages passed along by people in authority. What the books say isn’t always true, but they have a lot of truth in them, and 99% of what we need to know we learn from the books (especially if we learn how to find the right books). Similarly, the people in charge often have some pretty important answers — again, answers that are so important and foundational that we take them for granted (once we learned them from people in charge).

That’s true of specific knowledge about particular academic subject matters; teachers are hardly perfect, but they know some important information that most students need to learn to succeed. It’s also true of “answers” in the sense of character traits that are conducive to success: Answers to questions such as, “Should I work hard?,” “Should I invest for the future?,” “Should I work well with others?,” and so on; and these answers do tend to make people more “wealthy and happy and healthy and powerful,” though of course they are not perfectly correlated with success.

Finally, while learning doesn’t end when you leave the classroom, standardized tests don’t measure your entire value, and days off aren’t always more fun than sitting in the classroom, few schools seek to try to teach that, and my sense is that few students actually learn this. Rather, classroom learning — if done right — is an important part of your learning, being able to demonstrate your abilities even in the imperfect way that tests capture is important in a society where employers and universities have to sort through thousands of applications, and classroom learning even at a good institution can involve kinds of work that aren’t as fun as what you can do on your own but are still important.

So if the Forbes column is merely saying “remember that the practical rules for life that you’re taught in school are true only most of the time, and always think about whether some occasion is an exception to the rule,” then it’s correct but banal to the point of uselessness. And if it’s trying to say that those rules really are things that you have to outright “unlearn,” to the point of actually rejecting them much of the time, then it seems to me to be generally wrong.